Thursday, September 28, 2006

Search And Seizure Update

For the past decade, the Oregon Federal Public Defender has published an outline of federal search and seizure cases from a defense perspective. We set out the general state of the law and, through counterpoints to the cases restricting Fourth Amendment rights, keep track of cases in which defendants have succeeded in suppressing evidence based on creative use of facts and law. The point of the outline is to provide a starting place for research, a repository for cases that frequently are useful, and an optimistic approach to Fourth Amendment issues. The most recent update, prepared for the Oregon Criminal Defense Lawyers Association meeting this week, is available here.

Tuesday, September 26, 2006

US v. Baza-Martinez, No. 05-10282 (9-26-06). The 9th vacates a 1326 sentence and remands for resentencing. Defendant plead to an illegal reentry. He was assessed a 16 level adjustment because his state prior (North Carolina) was "sexual abuse of a minor." Defendant argued that the statute was overbroad. The "sexual abuse" included conduct that was arguably not physically or psychologically harmful, such as "indecent liberties." Taking a categorical approach under Taylor, and not being able to take a modified categorical approach because of a lack of documents, the 9th agreed, and concluded that "sexual abuse of a minor" under N.C.G.S. 14-202 is not a "crime of violence"under 2L1.2 because its definitional elements does not necessarily require physical or psychological harm.

Sunday, September 24, 2006

Case o' The Week: Visiting Judge Upholds Pothead's Testimony, Durham

An experienced pot user can identify marijuana -- but needn't be an "expert," says the Ninth. United States v. Durham, __ F.3d __, 06 Cal. Daily Op. Serv. 11883 (9th Cir. Sept. 22, 2006), decision available here.

Players: Decision by Judge Pollak, a visiting ED PA district court judge who executed a remarkably dramatic (and inexplicable) flip-flop on an early and important fingerprint case. Compare Yale post on original great fingerprint decision, here, with, report of Pollak's bewildering self-reversal, here.

Facts: Witness Brandy Nichols had smoked lots of marijuana – including sharing pot from a water bong with her friend, defendant Jessica Durham. Id. at 11886. She became upset, however, when her friend gave hits of pot to Durham’s 18-month old daughter. Id. at 11887. (Not too upset, however, to keep Nichols from returning to the bong herself afterwards.) Id. at 11888. Nichols took pictures of the little girl with her lips to the bong, then turned her friend in and testified against her at trial.

Issue(s): “Before trial, Ms. Durham sought to preclude Ms. Nichols drug identification testimony – that is, Ms. Nichols testimony that the burnt residue smoked by Michala was, in fact, marijuana. Ms. Durham argued that, as a lay person, Ms. Nichols lacked the expertise required to give that type of opinion testimony. The District Court ruled that, under the circumstances, while Ms. Nichols would not be deemed a ‘scientific expert in drug identification,’ she would be allowed to provide lay opinion testimony regarding the identity of the substance at issue.” Id. at 11889.

Held: “[T]here was no question as to Ms. Nichols’s familiarity with marijuana . . . . Ms. Nichols’s testimony was thus based on her personal knowledge, and her first-hand, multi-sensory interaction with the substance in question: Ms. Nichols viewed the contents of the water pipe used by Michala, and Ms. Nichols then smoked from the pipe, which afforded her the opportunity to smell, taste, and experience the effects of its contents.” Id. at 11893.

Of Note: Though she lost on the evidentiary issue, the defendant Jessica Durham won on an interpretation of mandatory minimums and got a reduction from five to two years. Id. at 11902. Nice victory for Antony Gallagher and Steven Babcock of the Montana Defender, though the two year mandatory minimum still seems steep for the mother of this toddler. (Why did the Montana USAO make this a federal case in the first place? Seems like the classic state court case -- note that the crime it was initially reported to state agents. Our Federal Government at work).

How to Use: As unusual as this case is (particularly for federal court), it does have a discussion of FRE 701 and lay witness testimony that will extend beyond these narrow facts. The Ninth discusses the 2000 amendments to Rule 701, and the advisory committee notes that discuss the admissibility of the testimony of meth users as lay witnesses. Id. at 11892. Thus, under the amended federal rules potheads and speed freaks can opine about drug identity based on their “expertise” with controlled substances -- without qualifying as experts. This irony is particularly troubling in this case, when the substance in the bong was never forensically tested and the little girl tested negative for marijuana.

For Further Reading: This case has inspired a predictable flurry of internet activity. There’s a more-detailed description of the one day trial in a Billings paper. See article here. Some bloggers express frustration at the reduction of the five year sentence. See post here. Others seemed shocked by the “whopping” five year sentence originally imposed. See post here.

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


Friday, September 22, 2006

King v. LaMarque, No. 05-15757 (9-20-06). This is a new opinion, the old one -- filed July 26, 2006 -- was withdrawn. Petitioner's challenge was dismissed as being untimely (there was a substantial delay in state court). The 9th recognized that the state rule barring challenges filed after "substantial delay" was neither firmly established nor consistently applied. The petitioner here contests the state rule, but does not argue that the rule is still being applied too uncertainly. The 9th though holds that it is the state's burden to prove that the rule is being consistently applied. If the state shows that the rule is being consistently applied, then the burden shifts back to petitioner. Petitioner meets his burden here by simply challenging the rule. On remand, the gov't must show that the procedural rules regarding "substantial delay" are being applied consistently in the noncapital context.

US v. Durham, No. 05-30403 (9-22-06). Ah, the joys of parenthood. One gets to pick baby food, among other things, for the toddler, and to make the choice between strained peas, oatmeal, and peaches. On the other hand, there are those that, such as the defendant here, who apparently decided it was okay to introduce the 18 mos. old child to pot. A neighbor witnesses it, was appalled, and became the key witness in a prosecution for distributing marijuana to someone under 21. The 9th found there was sufficient evidence, and that a lay person could testify as to what the drug was. The 9th did vacate the 5 year sentence. The defendant argued that because the drug was distributed without remuneration, and because ti was a small amount, the max was one year, and it was doubled because the defendant was older than 18, which meant two years. the 9th agreed, rejecting the gov't's strained attempt to limit incorporation 21:859 into 21:841. Thus, the defendant is only in "time-out" for two years and not five.
Congrats to AFPD Steve Babcock of the D. Montana.

US v. Castillo, No. 05-30401 (9-22-06). The defendant entered an unconditional guilty plea to being an illegal alien in possession of a firearm. . He then tried to appeal the denial of his suppression motion and a due process motion for delay between the discovery of the firearm and prosecution. The 9th (Beezer) dismissed for lack of jurisdiction, because an unconditional guilty plea constitutes a waiver of the right to appeal all nonjurisdictional antecedent issues, constitutional and otherwise. US v. Lopez-Armenta, 400 F.3d 1173 (9th Cir. 2005). The 9th regards this as jurisdictional. An unconditional guilty plea jurisdictionally bars all but jurisdictional appeals. It doesn't matter if the gov't doesn't raise waiver, and indeed responds on the merits. The jurisdictional bar is not waiveable. Wait, Bybee writes in dissent, the 9th's precedent seem to allow the gov't to waive waiver, and to reach the merits. If the majority wants to raise the jurisdictional bar in the face of the gov't's waiver, it should go en banc. Still, as to the merits, the defendant loses.

Tuesday, September 19, 2006

US v. Napier, No. 05-30348 (9-19-06). The 9th considers again what happens when the court doesn't speak its mind at sentencing, but waits until the written judgment to add nonstandard supervised release conditions. Unsurprisingly, the 9th frowns on this practice. here, the defendant embezzled funds. He got nine months imprisonment, three years of supervised release, and conditions of supervised release that may be modified from time to time. The judgment came out, and -- lo and behold -- nonstandard conditions appeared, including drug testing and mental health counseling. On appeal, the 9th (Canby) vacated and remanded for resentencing. It recognized that the judgment did not clarify the oral pronounced sentence; however, there was some ambiguity because the court did make reference to written conditions that would be forthcoming. Given the so-called muddiness, the 9th wants a "do over". In assessing the appropriateness of the conditions, the 9th held that the drug testing was an abuse of discretion because there was no record or indication of drug abuse. Drug testing is not an across-the-board condition., The 9th did uphold mental health counseling given some indications of violence against women in the past. The 9th made clear that an unambiguous oral sentence trumps an inconsistent written one.

Monday, September 18, 2006

US v. Howard, No. 03-50524 (9-15-06). The 9th had struck down the policy of the US Marshals Service in the Central District of California (Los Angeles) that mandated shackling of pretrial detainees in their initial appearance. This had come up previously, and had been struck down because the gov't failed to present any justification or security concerns aside from "We're the Marshals. We said so." The ruling caused a lot of gnashing of teeth among the Marshals, and gov't, and this decision is back up to the 9th with a vengeance. Not surprisingly, the gov't this time had presented a record that persuaded the 9th (Schroeder, Gould and Clifton) that the shackling policy was adopted with an adequate justification of its necessity. The justifications go to the need for security, staff shortages, the lack of time or opportunity for individualized assessment,. Safety and security of the courtroom are the chief concerns. The 9th buys this, and reasons that the legitimate governmental concerns are met.

Although it was a loss, AFPD Carl Gunn's arguments for the individual, and for consideration of a particular defendant as opposed to a general policy, is in the finest traditions of the federal defenders. Gunn's aim for fair treatment of the person as opposed to policy hit the mark; the Marshal and court chose togive more value to a different target. In the aftermath, although the chains may remain shackled, the accused still have us to argue for his dignity.

Saturday, September 16, 2006

Case o' The Week: Bybee's Batson Beauty, Great En Banc Decision in Kesser

In an important and welcome en banc decision, Judge Bybee (left) grants a habeas writ and lays out the current Batson analysis in the Ninth. Kesser v. Cambra, __ F.3d __, 06 Cal. Daily Op. Serv. 10941 (9th Cir. Sept. 11, 2006), opinion available here.

Players: Victory by SF counsel Bill Weiner, en banc opinion by Judge Bybee.

Facts: A District Attorney struck three Native American vernirepersons in a NorCal murder trial. Id. at 10947. When called on the strikes before the trial judge, the DA explained that he struck one of the “darker-skinned” potential jurors because she worked for a tribe, and she would be a little more likely to associate herself with the culture and beliefs of the tribe instead of the mainstream system – “they are sometimes resistive of the criminal justice system generally and somewhat suspicious of the system.” Id. at 10948. The prosecutor also described his experience where an expert allegedly opined that “child molesting is okay in certain [N]ative American cultures . . . .” and described his frustration that Native American offenders were treated within the tribal system “instead of the criminal justice system.” Id. at 10952. Northern District of California Judge Phyllis Hamilton denied the federal habeas; a divided panel affirmed, and the case went en banc.

Issue(s): “Richard Kesser seeks a writ of habeas corpus on the grounds that the prosecutor struck potential jurors on the basis of their race, in violation of the Equal Protection Clause of the Fourteenth Amendment.” Id. at 10946.

Held: We hold that the California courts, by failing to consider comparative evidence in the record before it that undeniably contradicted the prosecutor’s purported motivations, unreasonably accepted his nonracial motives as genuine. We conclude that the California courts’ finding are not merely wrong, but an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. at 10957.

Of Note: As good as this case is, there are two concurrences that provide even greater depth to a defense Batson challenge. Judge Wardlaw, joined by Judges Paez and Berzon, would also grant the writ because the state appellate court failed to apply the “mixed-motive” analysis required when a prosecutor gives both race-based and race-neutral reasons for a strike of a venireperson. Id. at 10982. Judge Berzon concurred, speculating that on direct appeal (instead of on habeas), the constitution might require an even more vigorous Batson inquiry. Id. at 10990.

How to Use: For habeas folks, this case is interesting for Wardlaw’s reliance on circuit authority to help divine “clearly established” federal law. Id. at 10985. The Supreme Court may address this practice this fall, in Musladin (though we sure hope that it doesn’t).

For defense trial lawyers, Kesser is now the lead Batson decision in the Ninth – an essential case for the trial kit. Note, however, Berzon’s Big Hint that there may be a defense challenge for a more vigorous Batson analysis on direct review – her point is worth making and preserving in the trial court.

For Further Reading: Judge Bybee is a W. Bush appointee who was involved with the infamous “torture memo” while he was at DOJ. We’ve noted before that Bybee has been a welcome surprise – though conservative, he’s got a stubborn individual liberties streak that often comes down on the side of the constitution. See blog here.

Maybe Bybee will turn out to be a Kozinski (photo above right) protege; willing to tolerate whopping-high sentences, but intellectually honest about constitutional protections. See Kozinski blog here. Notably, Kozinski joined author Bybee in Kesser, with both abandoning their dissenting brethren on the right. See id. at 10991 (Judges Rymer, O’Scannlain, Kleinfeld, Callahan, and Bea).

It was smart to put Judge Bybee out front on this opinion – maybe he has the Republican creds to fend off cert.-happy Supreme Court clerks (though it didn’t prevent the en banc hit in Bybee’s great Jewell case, Heredia). See 2006 WL 235801; see also 9th Cir. en banc status, here.

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

Frierson v. Woodford, No. 04-99002 (9-14-06). Need a listing of IAC at sentencing? This case provides it. The 9th (Paez) grants habeas sentencing relief as counsel failed to conduct investigation, failed to review prior transcripts, failed to look into mental health, misunderstood the law, misconstrued privileges, and embarked on sentencing strategies that were ill-conceived and woefully executed. Silverman, concurring, would find IAC in the failure of counsel to present evidence that petitioner was innocent of a prior killing when he was still a juvenile. The witness who had made the statements had no privilege against self-incrimination (he had been acquitted), but instead of impeaching, counsel fumbled, got an invocation, that was then limited. Not pretty. To Silverman, this was such a deficiency that the court could have stopped there and not trudge through the other failings.

Thursday, September 14, 2006

Comer v. Schiriro, No. 98-99003 (9-13-06). Petitioner wants to die. He asks to drop his petition and appeal, and to have the state execute the capital sentence. The district court found him competent after an evidentiary hearing. The 9th (Ferguson) acknowledged this competency, but held that his petition deserved a hearing given that "death is different." The 9th distinguished other cases, notably Gilmore, where petitioner had waived appeal, as standing cases. Turning to the merits, the 9th affirmed the conviction, but granted relief on the sentencing claim. Petitioner had not appeared for his trial, waiving presence, but for sentencing, he was dragged and beaten by prison guards, and appeared shackled, naked, and bleeding and exhausted. Even though it was judge sentencing (pre-Ring), the 9th acknowledged that judges are only human, and the appearance of petitioner, and the inhumanity, must have affected the process. Rymer, strongly dissenting, accused the majority of "raw imposition of judicial power." She argued that because petitioner was competent to waive his appeal, that was the end of the case. The 9th has no authority to go searching for issues, or rendering advisory opinions.

Stephens v. Herrera, No. 04-56232 (9-13-06). The 9th dismissed the petition because petitioner failed to state an "actual innocence" claim to gain the exception to the successor petition rule. Here, petitioner had filed a number of claims. each was denied. His latest attempt tried to get a jury instruction error to be an actual innocence. It didn't wash.

US v. Rowland, No. 05-10375 (9-13-06). This case (and the 292 mos. sentence) turns on whether Guam officials had reasonable suspicion to stop and question individuals that they reasonably suspect are violating Guam's importation laws, without regard to whether the flight originated domestically or in a foreign country. The 9th held that the officers were enforcing Guam's own laws against drug importation, and that importation was not confined to foreign flights. The police had enough information to stop and question based on the local laws that is read broadly as to how the drugs are brought in.

US v. Stevens, No. 05-30597 (9-13-06). The 9th (Goodwin) vacates a 30 year sentence for receipt and possession of child porn. The 9th held that that the 2004 amendment to the Guidelines that expanded the definition of "minor" from someone younger than 18 to include someone who was posing as a minor was a substantive change. Here, the defendant had online conversations and sent porn to an agent posing as a minor, and not to minors themselves. Graeber dissented, arguing that the amendment expanding the definition of minor was a clarification rather than substantive, and therefore not ex post facto it.

Wednesday, September 13, 2006

Kesser v. Cambra, No. 02-15475 (9-11-06)(en banc). The 9th, en banc, granted a habeas petition in a Batson challenge. The state struck Native American prospective jurors, using such telling reasoning as "Indians always favor their cultural institutions," or "she was the one with the darkest skin," or "she seemed too misty and emotional." The 9th would have none of it, embracing the concept of Batson, and finding that the state courts' pooh-poohing the reasoning, or finding a mixed collection of reasons, as being unacceptable. Concurrences also focused on the equal protection issues with such purposeful exclusion. The dissenters (including O'Scannlain) would defer to the state courts under the deferential AEDPA standards.

Yee v. Duncan, No. 05-55265 (9-11-06). The 9th dealt with another Batson issue. On this petition,. the state prosecutor could not recall the reason he struck a minority juror. The 9th had originally granted relief, but withdrew the opinion, and issued this, which upheld denial. Tthe 9th ruled that the third prong of Batson was not met, which was the finding of discriminatory intent. The first two prongs, of making a case and shifting reasons to the state, were procedural proof production. The second prong, though, could not be the deciding prong; the court had to find. Thus, the forgotten reason, although proof and a factor, was not sufficient to grant a relief; a court had to discern and hold that intent was present, and here, under AEDPA, the state courts were not contrary to law.

Sunday, September 10, 2006

US v. Cienfuegos, No. 05-10201 (9-8-06). The 9th (Wardlaw) holds that restitution for future lost income may be ordered under the Mandatory Victims Restitution Act of 1996 (MVRA) so long as it is not based upon speculation, but is reasonably calculable. The defendnat was convicted of involuntary manslaughter for a vehicular homicide on an Indian reservation. At sentencing, the gov't submitted a report from a CPA calculating the victim's lifetime future lost income as $1,851,134. The district court had denied the restitution, reasoning that the complexities for lost income belonged in a civil suit, and not in a federal sentencing. The court ordered restitution for funeral and related expenses. The 9th first brushes off the gov't missing deadlines and filing, reasoning that the failure to comply was harmless, and the deadlines were actually to prevent the defendant from accelerating sentencing. The 9th then goes through the MVRA legislative history, and the term 'lost income" and concludes that future income is permissable as restitution. The 9th cautions against speculation, or unrelated casual factors. The import of the decision is to make sentencing even more complex, as the district court warned, and can result in discovery focused on the victim and his or her true future potentials. Of course, restitution can be ordered, but realistically, can millions or even thousands really be paid?

US v. Mueller, No. 05-10180 (9-8-06). In an interesting opinion, albeit yet another loss for the defendnat, the 9th concludes that Booker does not allow probation for a defendnat convicted of receiving child porno in violation of 2252. The defendant's argument was that the statute did not preclude probation. The defendant argues further that a court could impose probation, instead of the mandatory. No such luck, answers the 9th, because that would be an accidental byproduct of Booker, and would run counter to Congressional intent.

Saturday, September 09, 2006

Case o' The Week: 2+ years of custody too much for nine year old stealing candy bar, says Ninth in Washington

In a case that would make Victor Hugo proud, the Ninth rejects a thirty month bump for a defendant who stole a candy bar when he was nine. See United States v. Washington, __ F.3d __, 2006 Cal. Daily Op. Serv. 10725 (9th Cir. Sept. 6, 2006), decision available here. A very interesting little undermining of the "prior conviction" exception of Apprendi.

: Written by Judge Hug, joined by Pregerson and Clifton

Facts: Washington stole a candy bar from another kid when he was nine years old. Id. at 10752-53. Years later, as an adult, he was convicted for bank robbery and § 924(c). The sentencing judge jacked Washington’s Criminal History up to V, based solely on the candy-bar prior and other juvi adjudications. Id. This gave a guideline range of 77-96 months – about thirty months steeper than Category I, which is where his lack of adult priors would have put him.

Issue(s): “Washington contends that basing his criminal history on his juvenile adjudications violated the Sixth Amendment because his juvenile convictions were obtained without affording him the right to a jury trial.” Id. at 10753.

Held: “Because Apprendi’s prior conviction exception does not apply to juvenile adjudications obtained without the right to a jury trial, it is clear that, in Washington’s case, the district court impermissibly relied on such juvenile adjudications to impose a sentence above the maximum sentence authorized by the jury verdict and the mandatory guidelines in effect at that time.” Id. at 10755 (emphasis added).

Of Note: Washington was sentenced before Booker, back in the mandatory Guideline regime. Therefore, its core holding is limited to older pre-Booker cases still on appeal. The decision, however, has some intriguing concepts buried in its holding. Most notably, the panel extends the logic of Tighe – an ACCA (statutory max) case – to regular old run-of-the mill Criminal History and guideline ranges. See id. at 10754. This is a big deal, because in Tighe the juvi prior increased a “real” statutory maximum instead of just a guideline “statutory maximum” (a la Booker). See United States v. Tighe, 266 F.3d 1167, 1191 (9th Cir. 2001). In other words, after Washington juvi priors violate Apprendi because they increase the guideline range – at least, that’s true for mandatory guidelines. Extending the bar on juvi priors from ACCA to the guidelines is a very big step done in a very quiet way. This is a subtle, but real, chink the edifice of the Almendarez-Torres “prior convictions” exception to Apprendi.

The Ninth also signals that another proposed Apprendi “fix” isn’t going to fly: just upping all statutory maximums or guidelines to “life” to avoid Apprendi problems may violate Booker reasonableness and due process. Id. at 10753-54.

How to Use: Of course, Washington is of interest for any pipeline Booker case that had juvi priors in the Criminal History calculation. This subtle little expansion of the juvi-prior bar, however, also deserves to be tucked away for a later Apprendi day – maybe the Washington rule can be extended to other adjudications without juries, like immigration proceedings?

Tighe and Washington also suggest that it is just plain unreasonable (Booker unreasonable, that is) to increase a sentence so dramatically for juvenile adjudications. The pair of cases are great Booker ammo for Section 3553(a) pitches when juvenile priors have unfairly upped Criminal History and the guideline calculation.

For Further Reading: When will the Supremes finally get around to extending Apprendi to prior convictions? Seems like they’ve all but done that in Shepard. See Shepard v. United States, 544 U.S. 13 (2005). For an interesting discussion of Apprendi, juvenile adjudications, and the “prior conviction exception,” take a look at Berman’s post. See blog post here.

Steven Kalar, Senior Litigator N.D. Cal. Website available at


Wednesday, September 06, 2006

US v. Washington, No. 04-50431 (9-6-06). Defendant committed armed robbery. He was left, shall we say, holding the bag, or at least possibly brandishing a gun. On appeal, defendant argued that Miranda was violated. When he was being booked, he was questioned about "gang affiliations." He also, when he was read his rights, stated that he "would listen without a lawyer." The 9th (Hug) holds that gang affiliation is just standard bio information (!) and serves to make the suspect safe. The 9th also holds that defendant effectively waived his rights and that the distinction of "listening" wasn't a waiver with conditions. Defendant also argued that statements of witnesses who placed him at the robbery were motivated by the prospect of a reward. After vigorous cross-exam, the prosecutor offered statements made earlier. Defendant raised a hearsay objection, but the 9th agreed with the gov't that it was a prior consistent statement and so was nonhearsay. Allegations of prosecutorial misconduct were made for statements about the Miranda hearing, but they were denied as harmless. Finally, the case was remanded for the court to determine whether brandishing took place. The jury found no brandishing in its verdict (hence a 5 year and not a 7 year sentence) but the 9th, acknowledging the tension with Harris, still found that Harris controls, and a judge must make the call. The case is remanded for a resentencing moreover because juvenile convictions were counted (including when the defendant allegedly stole candy when he was 9), and that under Ameline, a resentencing should take place. the original district judge is now deceased,a and so a full resentencing takes place.

Reynoso v. Giurbino, No. 05-55695 (9-6-06). The 9th (Reinhardt) affirms the granting of a writ for IAC. The petitioner was convicted of a shooting 3 years earlier on fairly skimpy identification evidence, and the witnesses had all been informed of the reward before they came forward. The 9th concluded that the state court's decision as to IAC, when the counsel failed to cross on the reward, was contrary to the Supremes, and so relief must be granted. Trott, in dissent, argues that certain factual issues are still uncertain, namely whether the public defender had been told by the prosecutor that all the witnesses knew of the reward. This, and other trimming issues, need to be resolved so that the decision can be measured against IAC standards, and whether the assessment of IAC by the state courts were unreasonable.

Monday, September 04, 2006

Case o' The Week: Taking the "Confrontation" out of the Confrontation Clause, United States v. Larson

A snitch works off a mandatory minimum life sentence by testifying at trial. “OK to exclude this fact in a jury trial,” says the Ninth, in a remarkably unpersuasive decision. United States v. Patricia Ann Larson, __ F.3d. __, 06 Cal. Daily Op. Serv. 10263 (9th Cir. Aug. 28, 2006), opinion available here. An opinion that cries out for en banc review.

Players: Hard fought case by Montana Defender Anthony Gallagher and AFPD David Ness.

Facts: Two snitches testify in a meth trial. Id. at 10263, 10270. Snitch A was looking at five to forty, Snitch B could have gotten mandatory life. Id. at 10269. The trial judge refused to allow defense cross about the likely prison term the snitches were facing absent their cooperation with the government. Id. at 10270. The defense was allowed to cross regarding the snitches’ understanding that only the AUSA could move for a reduced sentence. Id.

Issue(s): “[The] first contention on appeal is that the district court violated their Confrontation Clause rights when it prevented counsel from cross-examining the government’s cooperating witnesses as to the minimum terms of imprisonment they would likely have faced if not for their agreement to testify against the appellants.” Id. at 10271.

Held: Where the court allows extensive examination as to the existence of an agreement by which a witness has traded adverse testimony for the government’s motion for a reduced sentence, the defense has provided the jury with sufficient information upon which to judge the witness’s motivation for testifying and his or her corresponding credibility. The length of the sentence the cooperating witness would otherwise face—even where certain because of an applicable statutory minimum – is marginally relevant in light of testimony about the existence of an agreement generally. Such evidence may be excluded at least where, as here, the jury may have improperly inferred that the defendants faced sentences of similar duration.”
Id. at 10278-79.

Of Note: One snitch faced a five-year mandatory minimum; the second, life. Id. at 10275. The fact that Snitch A was facing five years was of “slight probative value,” explained the panel, because “a five-year sentence is not particularly lengthy.” Id. The panel’s dismissal of this exposure as evidence of bias is staggering, particularly because Snitch A was the twenty-two year old mother of a two-year old baby. Id. at 10277.

Snitch B’s exposure to a “statutory life sentence” has greater probative value,” reluctantly concedes the Court. Id. at 10275. (Gee, do you think?) The panel hold that this evidence of bias was properly excluded, however, because the jury might improperly infer that the defendants were looking at life. Id. at 10276. Actually, the jury could have inferred that the defendants faced a sentence of anywhere from five years to life – the two snitches’ exposures. Moreover, the Ninth has reassured us ad nauseam that jury instructions cure all: why wouldn’t a simple cautionary jury instruction to “not consider punishment as a factor in the defendant’s guilt” cure this potential prejudice?

Larson is fundamentally unfair and is divorced from the realities of criminal practice. Snitch A was never really going to get the stat max of forty years: the five year mandatory minimum was the real motivation for this 22-year old mother to lie on the stand. Snitch B was working off life in prison: the most motive to lie imaginable. Any experienced practitioner knows that mandatory minimums drive defendants to cooperate in the vast majority of 5K cases – and the Ninth here tolerates the entire subject being off limits for the jury? Larson should go en banc -- the Montana folks are preparing the petition now. That we have to tolerate snitch testimony is a sad fact of federal practice; that this testimony cannot be meaningfully tested at trial goes too far.

How to Use
: Larson does not say mandatory minimums are never fair game for cross. Instead, the panel held that this defense was allowed sufficient cross – and the life sentence carried sufficient prejudicial impact – that the limitation on cross did not violate the Confrontation Clause. Id. at 10278. Distinguish the 3-prong analysis of Larson (id. at 10274) when a court tries to shut down your cross: the government will undoubtably read the case far too broadly.

For Further Reading: 47-year old defendant Patricia Larson got eight years in this case. See press release here. Cooperator Joy Potria got 41 months, about twenty months off her 5-year mand-min. Cooperator Rick Lamere got 38 years, with some Rule 35 action possible.

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


Friday, September 01, 2006

US v. Arellano-Ochoa, No. 04-30545 (8-31-06). This is an open and shut case....literally. Police came to a trailer, for a little chat (knock and talk) because of suspicions of the presence of illegal aliens. The trailer's screen door was closed; it was half metal and half screen. The door behind it was open. The officers went up the steps to knock, when a man appeared, swung the door almost shut, and dodged, and shut the blinds. the officers opened the door, and saw a gun on the floor of the doorjamb, shouted "gun" and went on a protective sweep. Evidence was found of drug dealing. The defendant raised a 4th amend. motion, The 9th (Kleinfeld) reviews the jurisprudence of screen doors, when they are protective (summer) or not (winter). The 9th recognizes that the screen door does act as a screen for the home, and there is privacy interests. Here, though, there were exigent circumstance because of the furtive movements of the man, and the quick dodge raised the possibility of danger to the officers, and others. The opening was justified.

US v. Covian-Sandoval, No. 05-50543 (8-31-06). The 9th (Nelson) reviews a plea colloquy was that somewhat light on the facts and charge for a 1326. The review though was for plain error, and none was found. Under Rule 11, the court has to make sure the defendant knows what the charge is, and understands the nature of the offense. The court met the first part (informing) but not the second. However, the elements were read, the defendant exhibited no confusion as to other parts of the plea, counsel was present, and the charge was read. The 9th holds that the defendant adequately possessed an understanding, and the intent of Rule 11 was meant under the plain error standard.

Sass v. California Bd of Prison Terms, No. 05-16455 (8-31-06). The 9th (Goodwin) finds that the denial of parole was not in violation of any Supreme Court ruling, and the rulings were a reasonable application. Reinhardt dissented, sadly commenting that his colleagues ("able jurists" would one day rue their decision, involving a parolee whose parole was denied because a history of extensive past alcoholism apparently made him a present danger, and the lack of finding that his conviction for 2nd degree homicide was more cruel or callous than other 2nd degrees..