US v. Ziegler, No. 05-30177 (1-30-07). For those of you reading this on a government- or employer-provided computer, do you think you have an expectation of privacy? You might in your office, to an extent, but if "big brother" said he could look into the computer, he can. That is the thrust of this case, which concerns an opinion filed on August 8, 2006, but which is withdrawn and this substituted. The 9th (O'Scannlain joined by Silverman and Gould) considers the search of an employee's computer by company managers acting, so they assumed, for law enforcement. They made copies of the employee's hard disk, where bad stuff was found. The 9th recognizes that an employee may have some expectation of privacy in an office, or in a computer that he alone controls, but if the computer is controlled by the employer, and the defendant has consented or agreed or knew the employer or third part could pry (oops, look), then the employer/third party could consent to search.

US v. Tatoyan, No. 05-50783 (1-30-07). If one takes money out of the country, and its more than $10,000 in cash, one had better declare it. Excuses that the defendant was concerned about other passengers knowing that thousands of dollars were hidden in clothes was unavailing. The 9th also rejected the defense of "good purposes" for the cash (benevolence), and various challenges to the statute and instruction. The fine of $100,000 is vacated, though, because under the statute prohibiting bulk cash smuggling, 31 USC 5332(b), only concerns imprisonment up to 5 years, and not fines.

US v. Perez, No. 06-30161 (1-31-07). After Booker, the 9th adopted a limited remand procedure under Ameline. The limited remand is to allow the district court to determine, with assistance of counsel, whether the sentence would have been different if the guidelines were not mandatory. However, when the 9th determines that the record is sufficient that but for the mandatory nature of the guidelines, there was a reasonable probability that the sentence would have been different, the sentence is vacated and remanded for a full sentencing. In this case, the 9th chastises the district court for conducting a limited remand Ameline analysis after the 9th had previously vacated and remanded for a full resentencing. A full resentencing means exactly that. The district court did not have the discretion not to have a resentencing. The 9th states that a harmless analysis doesn't cut it: the district court had to follow the remand and give a full resentencing. The 9th will not prejudge the outcome.

Congrats to AFPD John Rhodes, D. Mont. for the win.

BOP Update: kick the over-incarceration habit

Our society is addicted to over-incarceration. The signs are everywhere: we have the highest rates of incarceration in the world; racial disparities in incarceration rates are a national disgrace; and Justice Kennedy tells us that the prison guard union’s lobbying efforts for more incarceration is "sick." Yet more mandatory minimum sentences are proposed every time a politician needs a headline. What’s a Federal Defender to do?

As set out in the article -- Update On BOP Issues Affecting Clients Before And After Sentencing -- linked here, we can do our small part to address the cult of incarceration in two ways: sensitizing judges to the fact that their sentences are unreasonably bloated by Executive Branch policies that increase the actual time served; and, if administrative remedies and negotiation prove fruitless, litigating the Executive Branch's unlawful increases to our clients’ sentences.

Since the advent of the Guidelines, the Bureau of Prisons has systematically increased the actual time served by abandoning or distorting statutory authorizations for sentence reductions, good time credit, and community corrections. Judges have no way of knowing how the BOP is increasing actual incarceration -- and it's a one-way ratchet -- unless we tell them. The bureaucratic incentives for over-incarceration, at greater tax-payer expense, result in irrational sentences and gratuitous cruelty.

The article provides a number of potential ways to address over-incarceration. The best way is to anticipate problems at sentencing. We can request that judges trump BOP over-incarceration policies by structuring proposed sentences to accomplish what Congress authorized but the BOP won’t implement.

When the BOP abolishes boot camp for non-violent defendants with a sentence of 30 months or less, we propose a six month term of imprisonment, followed by six months in a halfway house as a condition of supervised release, followed by home detention, both conditioned on community service. When the BOP refuses to implement split sentences, we propose probation conditioned upon the split between a halfway house and home detention (or the same as a condition of supervised release after whatever time has been served). When the BOP eliminates the sentence reduction for DAP under 18 U.S.C. § 3621(e) based on mere gun possession, or for prior convictions, or for having an immigration detainer, the sentence without the potential for the incentive may be unreasonably long, especially where those factors already resulted in a longer sentence. And we can assure that issues are resolved at sentencing to avoid problems regarding concurrent/consecutive sentences and eligibility for programs.

But we must also continue to litigate against the many ways the BOP is extending sentences by always requiring more incarceration. The Criminal Justice Act provides discretionary appointment for litigating the BOP’s unlawful practices that increase the actual time in prison. Judges should be encouraged to recognize the many ways that the prison bureaucracy has arrogated to itself the power to over-punish rather than merely carrying out judicially crafted sentences within a legislatively limited statutory context. The BOP policies that result in sentences greater than necessary to accomplish the purposes of sentencing – including the abolition of boot camp, the disqualification of statutorily eligible DAP candidates, the misconstruction of the community corrections statute, and misconstruction of the good time statute – are part of an overall bureaucratic tendency to self-aggrandizement that has no effective check except where the prisoner has a trained advocate at his or her side.

In addition to sentencing and litigation strategies, the outline hits on several recently litigated issues where BOP policies that increased incarceration were judicially rejected:

• Sanctions for failure to participate in the Inmate Financial Responsibility Program where the judgment did not incorporate in-prison restitution schedule;
• Revocation of DAP eligibility after a determination of eligibility and participation in the in-prison residential treatment program;
• Refusal to make a determination of DAP eligibility until the end of the sentence, thereby precluding the full potential sentence reduction;
• Loss of good time and other sanctions for failure to exceed the BOP’s educational requirements;
• Failure to award good time credits for the state portion of a term of imprisonment adjusted down under the Commentary to section 5G1.3.

To kick a nasty habit, you first have to recognize the problem. Federal Defenders need to guard against the creeping norms of over-incarceration: it does not take long for the elimination of a Congressionally-sanctioned program that introduced a touch of moderation to an extraordinarily harsh Guideline regimen to become old news. And the BOP's skewing of the Sentencing Table to be 2.2% longer than contemplated by the Sentencing Commission should make all sentences presumptively ureasonable (as blogged here). We need to educate ourselves about how sentences are being implemented, and act on our knowledge both at the time of sentencing and while the sentence is being carried out, to serve our clients by consistently advocating against their over-incarceration.

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

Case o' The Week: It is Fernandez's Mercado, but Betty Doesn't Buy It -- Acquitted Conduct at Sentencing

In his Mercado, Judge Fernandez sells the status quo: Watts survived Apprendi, and acquitted conduct can be used at sentencing despite Booker. United States v. Mercado, __ F.3d __, No. 05-50624, Slip. Op. at 857 (9th Cir. Jan. 22, 2007), opinion available here. Judge Betty Fletcher isn't buying it, though: in a great dissent, she explains why the use of acquitted conduct at sentencing violates the Sixth Amendment.

Players: Fernandez authors, Graber joins, Judge Betty Fletcher (eloquently) dissents.

Facts: Mercado and his co-D Bravo were charged with RICO and drug conspiracies, and a slew of other gun, murder, and violence allegations in a Mexican Mafia case. Slip op. at 860. A jury convicted them of the drug and RICO conspiracies, but acquitted both on the other serious allegations. Id. Over Apprendi objection by the defense, the district court nonetheless used acquitted conduct to rachet-up their sentences sevenfold: from three years, to twenty. Id. at 865 (Fletcher, B., dissenting).

Issue(s): “[Defendants] assert that in calculating their sentences under the [U.S.S.G.], the district court erred when it considered criminal activity which had been charged in the indictment, but which the jury determined had not been proved beyond a reasonable doubt.” Id. at 859-60.

Held: “We are . . . satisfied that the core principle of Watts lives on and that the district court could constitutionally consider the acquitted conduct.” Id. at 863. In fine, we join, rather than rain upon, the parade of authority that finds no Sixth Amendment violation when sentencing judges consider conduct underlying acquitted counts.” Id. at 864.

Of Note: Despite Fernandez’s “parade” of authority, Judge Betty Fletcher’s dissent is the much more persuasive decision. Fletcher takes the time to undertake the Sixth Amendment analysis (required post-Apprendi) and explains that the majority’s approach is the old Fifth Amendment way of thinking. Her dissent makes sense: using acquitted conduct to inflate a sentence sevenfold is a slap in the jury’s face. And, post-Apprendi, isn’t it the jury that deserves deference, not the district court? It’s hard (if not impossible) to reconcile Mercado with the spirit of Apprendi.

How to Use: One day, when Reason, Justice, and Betty Fletcher prevail, Mercado will be reversed. Plain error review will then hit our clients like a ton of bricks. (See, e.g., Ameline and progeny). No matter how slim the likelihood of this future victory, avoid the future Olano trap with a placeholder objection at sentencing now, despite Mercado. (This is especially true after a trial where acquitted conduct is in play at sentencing).

For Further Reading: Mercado is a Fernandez opinion; ergo, definitions follow.

“Renascent” (id. at 862): adj. “resurgent (rising again as to new life and vigor).” See definition here.

“Mutatis Mutandis” (id. at 864 & n.6): “A direct translation from Latin of mutatis mutandis would read, ‘with those things having been changed which need to be changed’. More colloquially, it can be interpreted as ‘the necessary changes having been made,’ where ‘the necessary changes’ are usually implied by a prior statement assumed to be understood by the reader. It carries the connotation that the reader should pay attention to the corresponding differences between the current statement and a previous one, although they are analogous. This term is used frequently in economics and in law, to parameterize a statement with a new term, or note the application of an implied, mutually understood set of changes.” See definition here.

Or,

A Science-Fiction, role playing game incorporating mutants battling "normal" society: “an interactive gaming environment created with this concept in mind; that in order to create, one must change, and that change is inevitable as a fundamental given. All things change. We can only strive to make the changes that will create a better world.” See the mutatis mutandis web page here.

(Presumably Judge Fernandez intended the former definition . . . .)

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


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US v. Arnt, No. 05-50124 (1-25-07). The 9th (B. Fletcher joined by Fernandez and Graber) vacates a voluntary manslaughter conviction and remands for a new trial based on the failure to give an involuntary manslaughter instruction. The defendant was tried under the Military Extra-territorial Act, 18 USC 3261-67, for the stabbing of her husband on an Air Force base in Turkey. Under a plain error review, the 9th finds the indictment sufficient despite failure to allege that she resided with her husband. The jury was so instructed. The failure to allege in the indictment does not strip the court of jurisdiction. Moreover, there was sufficient evidence to so find at trial. The 9th did find that the court should have given the lesser included. In a two-step analysis, the 9th identifies involuntary manslaughter as a lesser of murder; in the second step, the 9th found that there was some evidence supporting the theory that the killing was accidental, or a result of negligence (knife wound's path, drunkenness of victim, intent).

Congrats to AFPD Jonathan Libby, C.D. Ca (Los Angeles) for the win.

US v. Hector, No. 05-50270 (1-25-07). The 9th (McKeown joined by Hall and Wardlaw) reverses the granting of a new trial and the judgment of acquittal. The 9th found that the district court's granting of suppression of evdience for failure to serve a warrant was too severe, and that under the facts here, where the defendant was on probation, any failure to serve the warrant was too attenuated from controlling misconduct. There was also sufficient evidence for a jury to find that the defendant possessed a weapon during drug trafficking.

US v. Mercado, No. 05-50624 (1-22-07). The 9th (Fernandez joined by Graber) hold that acquitted conduct can still be used in sentencing. The defendants here were charged with RICO and conspiracy to distribute narcotics, but were acquitted on murder charges. The sentencing court still considered the murders, and sentenced them to the stat max (20 years) as a result. On appeal, defendant argued that Apprendi and Booker effectively overruled Watts. The 9th said "no," and that Watts, although shaky, still was controlling, as all the other circuits held. The reasoning was the lesser burden of proof, and the discretion of the judge under the advisory guidelines. In a spirited dissent, B. Fletcher castigates the reasoning, and argues that Watts has been overruled on both policy and constitutional grounds as the jury verdict should end the matter under the Sixth Amendment. The dissent is the opening brief for the cert petition.

Benitez v. Garcia, No. 04-56231 (1-22-07). The 9th grants a petition per curiam in an opinion that replaces the one filed May 23, 2006. The petitioner was extradited from Venezuela on murder charges, but the conditions were that he not face death, nor a sentence of longer than 30 years. In state court, he was sentenced to 15 years to life. The district courts held that the claim was either not ripe, nor not in violation of the treaty. The focus should be not on time "served" but on the sentence imposed, because that was the understanding when Venezuela allowed extradition under the express terms of the treaty. The 9th held, therefore, that the sentence of 15 to life was in violation of the terms of extradition. The California state courts acted unreasonably. The petition granted for a resentencing and the term cannot exceed 30 years.

Cunningham: support for Ninth Circuit rehearings on the ACCA and reasonable doubt

The Supreme Court opinion in Cunningham once again demonstrates that the Nation’s highest court is far ahead of the Circuits in protecting Fifth and Sixth Amendment rights. Justice Ginsburg provides some important support for our continuing struggle to persuade the courts that, under the Doctrine of Constitutional Avoidance, the silence in the Armed Career Criminal Act and federal sentencing statutes on the standard of proof should be filled by interpreting those statutes to require proof coextensive with the constitutional standard of proof beyond a reasonable doubt. Cunningham provides a big boost in two areas of current and future Ninth Circuit rehearings en banc.

In Cunningham, the Court addressed the California state sentencing system, which permits a sentence at the high end of a guideline based upon certain findings. The state supreme court construed the Supreme Court’s post-Apprendi case law to permit a high-end sentence upon proof of facts to a judge by a preponderance of the evidence. Justice Ginsburg provided the clear law: "[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence." And the traditional 5-4 majority for the post-Apprendi Sixth Amendment jurisprudence is now a 6-3 majority, with Chief Justice Roberts adding his vote.

The first area Cunningham will affect is the pending rehearing en banc in Grisel (blogged here), in which the Court will need to construe the pleading and proof requirements of the Armed Career Criminal Act. We have been arguing that, under the Supreme Court opinions in Haley and Shepard, the Doctrine of Constitutional Avoidance must be applied to any application or extension of Almendarez-Torres, the case finding that an immigration statutory enhancement did not need to be pleaded in the indictment. Cunningham provides a sharp focus on why the characteristics and sequence of ACCA prior convictions are facts that may well be constitutionally required to be pleaded in the indictment and proven beyond a reasonable doubt (as Fourth Circuit Chief Judge Wilkins found in dissent here) but at least raise a serious enough constitutional questions to require the same result through statutory construction.

In footnote 14, Justice Ginsburg puts a stake through the heart of the argument that facts concerning the offender should be treated differently from facts regarding the offense: "Apprendi itself, however, leaves no room for the bifurcated approach..." This footnote means that ACCA facts, such as the characteristics of the prior offenses and their sequence, should easily fall into the category of facts that must be proven in conformance with the Sixth Amendment. In the Grisel opening brief, as well as in the amicus support, the defendant presents the case for at least serious constitutional doubt on these questions, which implicates the Doctrine of Constitutional Avoidance. While still recognizing the limited exception for the fact of a prior conviction, Cunningham emphatically makes the point that these types of offender-oriented facts are entitled to the same Sixth Amendment protections as facts regarding the offense.

The second area involves a need for rehearing en banc rather than a petition that has already been granted. In three cases in the past two weeks, the Ninth Circuit, without any consideration of the Doctrine of Constitutional Avoidance, has claimed that precedent requires mere preponderance in support of guidelines enhancements, even as to acquitted conduct. In Lyons, the court amended an opinion to state without citation: "The argument that the district court should have imposed a 'beyond a reasonable doubt' standard is foreclosed by our case law." In Pike, the Court allowed a five-level guideline increase based only on proof by a preponderance, citing to a pre-Booker case (Riley) in which the defendant agreed that the preponderance standard applied. Most recently in Mercado, the court allowed enhancement of the guidelines based on acquitted conduct, with Judge Betty Fletcher dissenting based on a careful analyses of the constitutional issues.

In Mercado, neither majority nor dissent exercised the available option of avoiding the constitutional disagreement by resolving the case on statutory grounds. The majority simply relied on the Supreme Court opinion in Watts, which the Booker majority specifically found did not address the relevant constitutional issues, and the other Circuits' adherence to use of acquitted conduct to increase sentences. The latter point is especially unpersuasive: in the Sixth Amendment arena, not a single Circuit anticipated Apprendi or Blakely. Judge Fletcher fleshes out the historical bases for the Supreme Court's Sixth Amendment jurisprudence, which she finds unreconcilable with sentencing based on acquitted conduct.

These three cases should be reheard en banc, separately or together, to do what thus far the Ninth Circuit has not done: analyze the reasonable doubt requirement in the context of both the Supreme Court’s post-Apprendi jurisprudence and in light of the Doctrine of Constitutional Avoidance. From the time Booker came down, the residual Fifth Amendment reasonable doubt question has needed an answer, especially given the lack of statutory instruction on the burden of proof (briefed and blogged as summarized here).

Justice Ginsburg’s Cunningham opinion provides key support for the reasonable doubt standard. The phrase "sentence-elevating factfinding" is a great synonym for what routinely occurs in federal court regarding guideline facts "neither inherent in the jury’s verdict nor embraced by the defendant’s plea." Judge Ginsburg traces the history of the Court’s recent Sixth Amendment jurisprudence to the Jones case, which invoked the Doctrine of Constitutional Avoidance to construe the carjacking statute to require Fifth and Sixth Amendment rights regarding aggravating factors that increased the statutory maximum. The emphasis on Jones and constitutional avoidance is very helpful because most of the Jones analysis focuses on the Fifth Amendment and Winship, whereas Booker is strictly a Sixth Amendment case. The Fifth Amendment right to deprivation of liberty only based on facts proved beyond a reasonable doubt requires a different, and stricter level of compliance, as we know from the contrasting cases on retroactivity: "yes" on reasonable doubt (Ivan V. and Hankerson); "no" on judge rather than jury where the reasonable doubt right is intact (Summerlin).

While addressing the Sixth Amendment, Cunningham clearly expresses the constitutional norm that increased punishment should be predicated on facts proven beyond a reasonable doubt. This last point will likely be developed as the Court addresses the presumption of reasonableness in Rita. As set out in Guidelines Appeals: The Presumption of Reasonableness and Reasonable Doubt, 18 Fed. Sent. Rptr. 170 (Feb. 2006), the presumption of reasonableness itself is a powerful argument for the reasonable doubt standard as a matter of Fifth Amendment law, especially in light of the Supreme Court's law on presumptions in criminal cases. And even without a presumption, if a sentence would be unreasonable, even though within a statutory maximum, without the higher guideline range as a starting point, doesn’t that exactly match a "sentence-elevating factfinding"? Third Circuit Judge Sloviter, in a dissenting opinion, has already found a Fifth Amendment violation based on draconian results from findings by a mere preponderance (as blogged here).

The Grisel en banc argument is set for March 22, 2007. We are hoping petitions for rehearing en banc will be filed in each of the three reasonable doubt cases. Meanwhile, both at the trial level and on appeal, we need to carefully preserve our clients’ rights in ACCA cases and in all sentencings based on controverted facts that increase the guideline range, under both the Constitution and under the relevant statutes as construed using the Doctrine of Constitutional Avoidance.

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

Case o' The Week: "Collective knowledge" works for the Borg -- and Cops, Too, Says Ninth in Ramirez

In Star Trek's Next Generation series, the Borg are the Federation's nemesis: a huge, hive mind with a collective conscious. Turns out, that's true for cops too. In United States v. Ramirez, Judge O'Scannlain tolerates a search where a narcotics sergeant had facts relating to probable cause, but didn't relate any of those facts to a completely unrelated traffic cop who actually did the stop. United States v. Ramirez, __ F.3d __, Slip. Op. at 533 (9th Cir. Jan. 17, 2007), opinion available here. (Resistance is futile . . . . )

This is a dangerous Fourth Amendment opinion expanding the collective knowledge doctrine in the Ninth Circuit; it is worth a close read.

Players: Hard-fought appeal by CD Cal AFPDs Craig Harbaugh, (now Defender) Sean Kennedy, and Brad Levenson.

Facts: Glendale Police Sgt. Meier learned that there was a sophisticated, electronically-controlled hidden compartment in a Mountaineer SUV. Id. at 538. The SUV was surveilled until it met up with a Silverado. Id. at 539. Men got out of the Silverado, met with Ramirez and co-defendant Beltran, and placed a heavily-weighted gym back in the back of the Mountaineer. Id. at 539. The Silverado men returned to their car with a manila envelope or box. Id. Sgt. Meier requested a traffic stop of the Mountaineer over police radio. The SUV was then stopped by another officer for straddling a lane line, and Beltran was (improperly) arrested for driving on a Mexican license. Id. at 540. The traffic cop who stopped the Mountaineer wasn’t told the facts known by Sgt. Meier; facts which established probable cause. A search of the car produced eight kilos of cocaine. Id. at 540.

Issue(s): “In this criminal appeal we must decide whether the ‘collective knowledge’ doctrine justifies a warrantless stop of an automobile by one officer at the request of another officer within the same police department.” Id. at 538.

Held: “We are satisfied that the collective knowledge doctrine includes no requirement regarding the content of the communication that one officer must make to another. Where one officer knows facts constituting reasonable suspicion or probable cause (sufficient to justify action under an exception to the warrant requirement), and he communicates an appropriate order or request, another officer may conduct a warrantless stop, search, or arrest without violating the Fourth Amendment. Accordingly, appellant’s convictions are AFFIRMED.” Id. at 554-55.

Of Note: This O’Scannlain opinion systematically broadens the collective knowledge exception to the Fourth Amendment – it is a decision we’ll curse in future Fourth Amendment cases. The defense urged two limitations on the collective knowledge doctrine: that the officers at least be working on the case together, and that there be some minimal communication about the knowledge known. Id. at 544. O’Scannlain rejects each of those limits. Here, it doesn’t matter that Sgt. Meier was a narcotic officer and the officer who stopped the car was a completely unrelated traffic cop. Id. at 554. It doesn’t matter that the Sgt. Meier didn’t even tell the traffic cop the real purpose of the investigation, much less the facts giving probable cause for the real stop. Id. at 552-54. Ramirez, combined with Whren, (the Supreme Court decision tolerating pretext stops) creates this troubling scenario: a distant supervising officer with information directs a dupe, drone officer to detain citizens for reasons that the beat cop needn’t know. Another nail crowded into the Fourth’s beat-up coffin.

How to Use: Judge Kozinski, at least, worries that this case could go too far. See id. at 555 (Kozinski, J., concurring). He writes separately to emphasize that “This is not a case where the investigating officers ordered a fellow officer to conduct a traffic stop because they lacked probable cause for a narcotics stop. Sergeant Meier had probable cause to order a narcotics stop, and that’s exactly what he did.” Id. In other words – and this is an important limitation – the collective knowledge doctrine can’t be used to salvage a stop, when there is no knowledge. Here, Sgt. Meier had sufficient facts to establish P.C. before the traffic cop conducted the pretext stop. That’s a key limitation of the Ramirez decision.

For Further Reading: Has the “collective knowledge” doctrine become completely unmoored from any of the common-sense restraints one would expect in Fourth Amendment law? Yep, says Simon Stern, in a very interesting upcoming law review article: Constructive Knowledge, Probable Cause, and Administrative Decision-Making, forthcoming in the Notre Dame Law Review (2007), article available here.

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

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US v. Pike, No. 05-30528 (1-17-07). This is a deceptively simple sentencing remand. The defendant robbed a bank, was caught, and confessed. He pled without a plea agreement. The PSR gave him a 5-level enhancement because he may have had a gun in the backpack. He stated that the gun was kept in the car. The court refused the enhancement, using the "clear and convincing" evidentiary standard since the enhancement was more than four levels. On appeal, the 9th (Reinhardt joined by Tashima and Graber) remanded for resentencing. The 9th held that the wrong standard was used because the question of whether a heightened evidentiary burden of proof was to be sued required a "totality of circumstances" analysis, looking at the maximum sentence of the crime allege din the indictment; whether it negates the presumption of innocence for the alleged crime; whether the facts offered in support of the enhancement create a new offense; whether the extent of the conspiracy is involved (relevant conduct); whether the enhancement is more than four levels; and whether the sentence is doubled. Under this test, the sole factor present here was an increase of more than four levels, and that, by itself, has never been held to trigger an enhancement. The focus is on whether other offenses are being punished under a lower standard. The 9th carefully said that under this case, and these facts, the sole factor of five levels, without more, was not enough. The 9th did stress that the court still had to determine, on remand, whether the d efendnat had the gun in his backpack during the robbery or whether it was left in the car. The standard is preponderance of evidence. The 9th also held that the phrase "I have a gun" is not per se a threat of death. It is pretty good evidence of it, but it must be assessed under the totality of circumstances test, and the defendant's acts here might not be a threat of death. Thus, this case redefines the test for what standard of proof is to be used in a guideline sentence, and stresses that the express threat of death with the phrase "I have a gun" is not automatic for an enhancement.

US v. Berger, No. 04-50469 (1-18-07). The 9th (Pregerson joined by Leavy and Beistline) affirm convictions for securities fraud, finding that materiality was established. More interesting was the issue of the judge's informal "chat" with the jury over scheduling that lead to the judge lapsing into a quasi-Allen discussion. The 9th found that the defendant had waived the informal chat, but not the subsequent Allen discussion, nor the giving of a modified Allen instruction. The error, though, was harmless because of the nature of the instruction, and the fact that the jury might not have been deadlocked (it had been a two month trial). The case was remanded for resentencting on the government's cross-appeal because the court had, after Blakely, refused to use enhancements not given to the jury, and now, under Booker, the guidelines were advisory.

Ruiz-Vidal v. Gonzales, No. 04-73812 (1-18-07). The 9th reverses an order of removal based on possession of a controlled substance because there was no indication what the controlled substance was, and it might not have been one. The judicially reviewable documents are not clear, and the petitioner had plead nolo to a different charge than for what he was indicted with in state court.

Kelly: prisoners should receive good time credits on the state portion of a sentence adjusted down under U.S.S.G. § 5G1.3

You know how the sentencing judge has to adjust down a sentence under U.S.S.G. § 5G1.3 to achieve a concurrent sentence with the time already served on an undischarged state sentence? George Kelly had his sentence adjusted down 28 months, but the Bureau of Prisons refused to exercise its statutory duty to award good time credits on the whole sentence, instead treating the sentence as a downward departure, despite language in the Guidelines Manual and the Judgment that contradicted this characterization. Judge Stewart granted habeas corpus relief to Mr. Kelly (here)(Kelly v. Daniels, __ F.Supp.2d __, 2007 WL 79342 (D.Or. Jan. 10, 2007)) based on legal standards elaborated in the memorandum linked here. Here’s the summary on why we should be reviewing all our § 5G1.3 adjusted sentences to be sure our clients are receiving full good time credits and, if not, filing for habeas corpus relief.

Under U.S.S.G. § 5G1.3, the sentencing judge can adjust a sentence down to achieve a partially or fully concurrent sentence to a previously imposed state sentence. In the commentary, sentencing judges have been instructed to note in the judgment that the lower number of months in the sentence is not a departure but an adjustment to reflect that the Bureau of Prisons, pursuant to 18 U.S.C. § 3585, will not credit time prior to the commencement of the sentence that has been credited against another sentence. The concurrent portion of the sentence, under the separate good time credit statute, is fully subject to good time credits for the time in state custody. 18 U.S.C. § 3624(b).

We need to check good time calculations because the Bureau of Prisons does not always award good time for the portion of the total term of imprisonment served concurrently while in state custody, treating the adjusted sentence as a departure rather than as part of the term of imprisonment. After exhausting administrative remedies (assuming no imminent harm), we should litigate this issue by establishing that no departure is involved, that the plain meaning of the good time credit statute requires that earned good time credit be awarded on the entire term of imprisonment, and that any ambiguity in the statute would have to be resolved in favor of the prisoner.

The good time credits for Mr. Kelly’s 28 months come out to about four fewer months of actual incarceration. We need to be sure our clients are receiving the proper calculation of good time credit on § 5G1.3 sentences, which can save them many months of prison time and accelerate their entry to community corrections programming.

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

US v. Ressam, No. 05-30422 (1-16-07). This is a terrorism case. The defendant was convicted of bringing explosives across the border. He was convicted at trial, cooperated, ended cooperation, and ended up with a sentence of 22 years (he was facing 65). The government appealed the sentence as unreasonable; and defendant appealed a conviction that imposed a mandatory ten years because he had explosives while committing another felony. The 9th fastened on the conviction, holding that there must be a relational tie between having the explosives and committing the underlying felony (here, a false statement). The 9th 's interpretation runs counter to two other circuits, but it constrained by precedent (precedent penned by then Judge Kennedy) in US v. Stewart, 779 F.2d 538 (9th Cir. 1985), overruled in part on there grounds by US v. Hernandez, 80 F.3d 1253 (9th Cir. 1996). Rymer, joined by Berzon, stressed that Stewart, dealing with a firearms statute, required an "in relation to" tie to the other felony for the mandatory term to be triggered. In dissent, Alarcon argued that Stewart has been long overruled. The result of the reversal on that count is to return the case for resentencing, which will be post-Rita/Claiborne, and post-Carty/Zavala.

Congrats to FPD Tom Hillier and AFPD Michael Filipovic of the W.D. Wa (Seattle) for the win.

US v. Ramirez, No. 05-50165 (1-16-07). The 9th affirms the doctrine of "collective knowledge" in one officer knowing facts that result in probable cause asking another officer to stop a car and make an arrest. This was an ongoing drug investigation, and the 9th affirmed the denial of suppression, holding that the team investigating the defendants had sufficient probable cause to order a warrantless stop of a car by another officer in the same department. The 9th declines to require that the content of probable cause or suspicion be transmitted to the stopping officer; it is enough that one officer has it. O'Scannlain was joined by Bybee. Kozinski concurred to stress what the case was not, which was an officer lacking probable cause asking another to come up with something. Here, the officer had probable cause, and asked the arresting officer to make it seem like a traffic stop because of officer safety.

US v. Hicks, No. 06-30193 (1-11-07). This is an interesting Booker effect case: if the guidelines go down for a guidelines imposed sentence, and resentencing is allowed under 18 USC 3582(c), should the guidelines be treated as mandatory or advisory? In a case of first impression anywhere (maybe because the guidelines go down so infrequently), the 9th (B. Fletcher joined by McKeown and Schwarzer) emphatically stated that the sentencing must treat the guidelines as advisory. The facts here involved a drug conspiracy in 1993. It was a family affair, except the father was acquitted, who was the "kingpin," and the son was left holding the bag, and unfortunately a gun, too. He received a 40-year sentence. The guidelines changed so that a 924(c) charge meant that one did not count the gun in the guideline sentence, and resentencing was allowed under the guideline provision 3582(c). The government contended that the court, in resentencing, could not look at Booker, but had to treat the guidelines, unconstitutional and all, as mandatory. The 9th found this was error, bad policy, unconstitutional, and that it did not make sense. The court, in this resentencing, is not limited to just taking off two levels, but can resentence.

US v. Hernandez-Castro, No. 06-10074 (1-12-07). Booker left intact the "safety valve"'s requirement, 18 USC 3553(f), that a defendant, to be eligible can not have "more than 1 criminal history point, as determined under the sentencing guidelines." Although Booker made the guidelines advisory, it did not, and could not, trump the mandatory minimums established by Congress, nor the legislative enactment of the safety valve. Furthermore, a departure to a criminal history category also does not make the defendant eligible. US v. Valencia-Andrade, 72 F.3d at 774. Booker is not a magical incantation which spells the disappearance of congressional enacted mandatories (yet).

US v. Reynard, No. 02-50476 (1-12-07). The 9th rejects a number of challenges to the collection of DNA for probationers. The defendant was ordered to submit a DNA sample for the data base, refused, and was found in violation of his SR conditions. On appeal, the 9th finds there were no retroactivity, ex post facto, right against self-incrimination, and (by two judges), the commerce clause. Dissenting, Pregerson would find that the DNA collection is outside of Congress's authority under the commerce clause. The DNA is not injected in the stream of commerce; Congress is therefore overreaching.

Guantanamo: why we need habeas corpus

With fourteen Federal Defender offices representing about 50 Guantanamo detainees, we need a quick answer to why aliens detained in the war on terror should have their cases reviewed by federal court through the writ of habeas corpus. My short answer is: Adel Hamad, Nazar Gul, and Abdul Rahim Al Ginco. These three detainees represented by our office have filed summary judgment motions based on international investigation that establishes that they are neither enemy combatants nor a danger to anyone.

A great place to start is the eight-minute video summary of the evidence in Adel’s case by attorney and investigator William Teesdale, linked under the title Guantanamo Unclassified. Send it on to anyone who still believes the fiction that Guantanamo only holds the worst of the worst. This Sudanese hospital administrator, teacher, and family man has done nothing to warrant the suffering he is undergoing as he enters his fourth year of unjust incarceration. Adel’s case is also summarized by the Center for Constitutional Rights’ website as one of the Faces of Guantanamo and in these articles in the NewYork Times and the Portland Tribune (which includes photos from the field). The summary judgment documents are available here and on the District of Columbia District Court website under Hamad v. Bush, Civil No. 05-1009-JDB (document 59)(filed October 17, 2006).

The second case involves Nazar Gul, who fled Afghanistan as a child during the Soviet occupation in the early 1980s. After about 25 years as a refugee in Pakistan, he returned to Afghanistan in April 2003 and found work with the Karzai government. While in Gardez to obtain treatment for an infected molar, he was picked up in a dragnet, apparently because of the similarity between his name and that of another man, a former mujahadeen commander. Our investigation team – AFPD Ruben Iniguez and Federal Defender Investigators Martin Caballero and William Teesdale – went to Afghanistan, then through the Khyber Pass to Pakistan, locating and videotaping witnesses including Nazar’s supervisor at work, the pharmacist who treated the molar, and the taxi driver who drove Nazar to seek treatment. The summary video submitted in support of the summary judgment motion, narrated by FPD Investigator Martin Caballero, is available as Nazar Gul video here; there is also a great article summarizing the case here in the Hispanic News. The full documentation is available from the District of Columbia District Court website under Gul v. Bush, Civil No. 05-888-CKK (document 51)(filed October 16, 2006).

In the third case, a young Syrian was tortured by the Taliban and kept under horrible conditions in the political prison in Kandahar for almost two years before he became an American prisoner in January 2002. As the result of the Taliban torture, he falsely confessed on videotape to being an American spy. When his prison was liberated after American bombing, Abdul Rahim and four other foreign nationals met with the press, the Red Cross, and others. When he was taken into American custody, videotapes that were the product of Abdul Rahim’s well-documented torture by the Taliban apparently became the basis for detention that is now entering its fifth year – seven years counting the Taliban imprisonment. His account has been verified by contemporaneous press stories, other detainees, and his family. The evidence is summarized in articles from the New York Times, the Washington Post, and the Associated Press. The sworn statements and other evidence is available here and from District of Columbia District Court website under Al Ginco v. Bush, Civil No. 05-1310-RJL (documents 37 and 39)(filed September 21, 2006).

These cases, as well as the cases of all the other detainees who have filed for habeas corpus relief, have been stayed pending the resolution of cases that have been before the District of Columbia Circuit Court. Many rounds of briefing have been filed, including the briefs linked here, here, and here. Federal Defenders filed an amicus brief after the passage of the Detainee Treatment Act (available here) and, more recently, filed a supplemental amicus brief in light of the Military Commissions Act (available here). Each District Court has pending motions to lift the stay to hear the summary judgment motions pending in the cases of Adel, Nazar, and Abdul Rahim.

On the fifth anniversary of the human rights issues raised by Guantanamo, we are hoping to bring the flesh and blood reality that underpins those rights before a court of law as soon as possible, whether under current law or based on the pending legislation repealing the attempted repeal of the core constitutional right to habeas corpus review. It's a good time to remember Dr. Martin Luther King Jr.'s words from the Birmingham Jail: "Injustice anywhere is a threat to justice everywhere."

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

US v. Gonzalez-Perez, No. 05-10693 (1-10-07). Defendant received a 16-level enhancement in a 1326 sentence for a state (Florida) conviction for "false imprisonment." Hmmm, sounds like a crime of violence, but under the categorical approach of Taylor/Shepherd, the statute, in all its overbroad ramifications, is examined. The Florida statute allows for false imprisonment through "secretion" (as in hiding). The state courts interpreted that as not requiring violence or force in upholding convictions (precedential sauce for the goose is also fit for the gander). As such, the 9th (Rawlison joined by Fernandez and W. Fletcher) held that the statute is overbroad, and the enhancement was erroneous. Remanded for a new sentencing.
Congrats to AFPD Tracy Friddle, D. Ariz, for the win.

US v. Crapser, No. 05-30456 (1-10-07). This is another knock-knock case at a motel that turns into a seizure. The question on appeal was whether the Terry seizure was warranted. The 9th (Graber joined by Goodwin) answer "yes." The police had suspicions that the defendant might be wanted on a warrant, and that drugs might be involved. The officers went to his motel door, knocked, and asked a person through the window if they could speak to the defendant. He came out. Using the totality of circumstances test from Arvizu, the 9th found that the nervousness of defendant, the admission by a guest that she used meth, a pressure cooker found in a trunk previously, and a lapse of time between seeing the officers and coming out, all rose to a level that allowed a Terry stop. The defendant also voluntarily consented to search. Reinhardt, dissenting, laments the further erosion of the fourth amendment, and argues that the police had little cause to question him about drugs, and that the factors did not rise to a Terry stop. The case revolves around use of the "totality of circumstances" standard.

US v. Jones, No. 06-30024 (1-10-07). A wealthy car collector dies, and the estate wants to minimize taxes by selling off this fleet of prized cars at cut-rate prices. Too good to be true? Sure was. Defendant was lured into the scheme, and before he learned of its fraudulent nature, he was soliciting investors. However, defendant kept the money for himself rather than turn it over to the other schemers (ah, what a bunch). When the feds moved in, defendant told his investors that the money had been seized. Defendant entered into a plea for one wire fraud count. After pleading guilty, he tried to back out, alleging that his acts were not fraudulent because he did not make false statements prior to receiving funds. The court finally sentenced him (four lawyers later) and he appealed. The 9th had little patience, holding that the factual basis covered the elements, and that the defendant was involved in a scheme. The 9th also held that the court did not abuse its discretion in not letting him withdraw from the plea.

US v. Jiang, No. 05-10671 (1-10-07). The 9th (D.W. Nelson joined by Berzon and Bright) reversed a conviction for making a materially false statement. The conviction was a result of an agent interviewing defendant, who ran a computer export business and shipped some equipment to China. The agent failed to tape the conversation in which the defendant supposedly made a statement and the agent's notes were, ahem, inconsistent at key places. Moreover, the court at this bench trial failed to make sufficient findings of fact. The conviction is reversed.

US v. Fort, No. 06-10473 (1-8-07). The 9th issues a very bad discovery order expanding the scope of protected discovery for work product to state police investigative reports that were turned over to the US Attorney for their investigation. The 9th reverses a district court protective order that had disclosure when the government thumbed its nose at the court's request for assistance in drafting. Graber, joined by Tallman, reasoned that the reports fell under work product and analysis. This case itself dealt with an alleged violent gang in a project. Dissenting, W. Fletcher takes the majority to task for confusing work product with concerns about disclosure. This order is badly reasoned and flawed.

Case o' The Week: Unwelcome FORTIFICATION of Rule 16 Discovery, U.S. v. Fort

"Manifestly absurd," complains dissenting Judge William Fletcher of Judge Graber's statutory interpretation of Rule 16 in United States v. Emile Fort, __ F.3d. __, No. 06-10473 (9th Cir. Jan. 8, 2007), opinion available here. (Or, to be fair, that's how Fletcher characterizes the logical consequences of the majority's statutory reading . . . .)
In Fort, Judges Graber and Tallman deliver an extraordinarily disappointing discovery decision; an opinion that could have a profound impact on federal criminal practice. Judge Fletcher predicts defense chaos will ensue based on the decision's new (and strained) interpretation of Rule 16: let's oblige.

Players: Graber (above right) writes, Tallman (below right) joins; W. Fletcher (upper left) dissents.

Facts: Feds inherited previous state gang investigations and made them into federal, RICO, capital charges. While developing their case, federal AUSAs got copies of San Francisco (local) police reports. The federal prosecutors disclosed many of these reports to the defense, but redacted key names due to witness safety. N.D. Cal. Judge Alsup ordered disclosure of the unredacted reports under a restrictive protective order. Slip op. at 4-5. In a heated hearing, the government refused to comply: Alsup imposed sanctions. Id. at 3. The government took up the discovery and sanction orders in an interlocutory appeal. Id.

Issue(s): “This appeal presents the question whether investigative reports prepared by a local police department prior to a federal prosecutor’s involvement qualify for the discovery exemption created by Rule 16(a)(2) when they are turned over to the federal prosecutor for use in the federal investigation and prosecution of the same acts by the same people.” Id. at 9 (emphasis added).

Held: “We hold that the documents [the police reports] in dispute are not discoverable because they are covered by Federal Rule of Criminal Procedure 16(a)(2) whether prepared by federal, state, or local officials. Accordingly, we vacate the June 16 [discovery] order . . . .” Id. at 3.

Of Note: Judge William Fletcher questions the majority's statutory interpretation in a forceful and persuasive dissent. [ed. note: This particular judge does not use phrases like “manifestly absurd” lightly: en banc antennae should be quivering].

Judge Fletcher's plain reading of the rule is right; the majority’s interpretation of an exemption to Rule 16 disclosure requirements turns the statute on its head. Moreover, the majority’s strained interpretation opens up all sorts of “sauce for the goose, sauce for the gander” arguments for the defense (as Judge Fletcher warns in his dissent). If this decision doesn’t go en banc, it is a wide-open invitation for a whole raft of new defense challenges (see "How to Use" below).

What a mess this opinion could cause. Imagine not getting the local cop’s police report in a simple felon-in-possession case, or no report disclosed in a little one-shot crack sale that goes federal. The police report is the discovery, in those cases -- and those cases are the bulk of the federal criminal docket. The majority's decision ignores the fact that feds don’t make their own cases anymore: by and large, they just snag investigations from state cops. Fort will profoundly gum up the works in the vast number of state investigations that go federal: how can one defend or resolve a case without even seeing the police report?

How to Use: The majority in Fort oddly interprets Rule 16's use of “agent” of the “government” to include state officers working on a case long before the federal investigation begins. White collar defense bar, take note: given the majority’s novel interpretation, a symmetrical reading of Rule 16(b)(2) would allow the defense to avoid reciprocal defense disclosure of many documents under a dramatically broadened theory of what constitutes the defendant’s “agents” (such as corporate employees, accountants, investigators, firm lawyers, etc.). See Fletcher, W., dissenting at 11-12.

What about dirt from a state or local officer’s personnel file? Under United States v. Henthorn, 931 F.2d 29 (9th Cir. 1990) the defense traditionally only got disclosure if the law enforcement officer was federal, or an officially cross-designated state/federal agent. But, the Fort majority’s strained reading of “agent” should broaden Henthorn discovery obligations. According to Judge Graber, local cops are now federal government “agents,” even before a case goes federal. [I can’t explain it; I just report it]. If that’s true, then Henthorn disclosure obligations should apply to those local cops when a federal case is initiated. Use Fort to broaden federal government disclosure obligations, when seeking impeachment information from local or state officers’ personnel files.

Finally, what about actually getting needed police reports? Try Rule 17(c) subpoenas – a tool not touched by this opinion at all. District court judges unimpressed with Fort's reasoning (and unwilling to tolerate the chaos the opinion will cause for their docket) may now have a new view of the relevance of a 17(c) subpoena for a local police report.

For Further Reading: For a good description of the back story to this heated battle, see Justin Scheck’s Recorder article here (subscription required, free trial available at this link).

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


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The Ninth Circuit Takes On Enhanced Sentencing Under The Armed Career Criminal Act

Two cases from the Ninth Circuit today, when read in tandem, bode well for a serious look at recidivist sentencing policies that, up to now, have been unduly disparaging of Fifth and Sixth Amendment rights. In Grisel, the Court ordered rehearing en banc regarding a sentence imposed under the Armed Career Criminal Act; in Jimenez-Ortega, a panel abandoned Ninth Circuit precedent that had been superseded by Supreme Court authority.

Under the Armed Career Criminal Act, defendants charged with possession of a firearm face much harsher sentencing -- a maximum of life without parole instead of a ten year maximum -- if they have three prior predicate convictions. The predicate priors can include generic burglary convictions, as defined by the Supreme Court in Taylor. Where the burglary statute is nongeneric, the Court in Taylor, as modified by Shepard, described the modified categorical approach, which allows the use of judicially noticeable facts to determine whether the conviction under an over-broad statute constitutes a generic burglary conviction.

Oregon's statute is nongeneric, or over-broad, because entries into places like cars and lockers are included. However, an early Ninth Circuit case failed to address this aspect of Oregon law, resulting in treatment of the Oregon burglary statutes as sufficiently narrow to describe generic burglary. Further, the Ninth Circuit to date has simply relied on Almendarez-Torres to find no need for pleading in the indictment or proof beyond a reasonable doubt (or an admission during a plea colloquy) of the characteristics and sequence of the prior convictions.

Multiple consitutional issues should be avoided in this scenario. Under the Supreme Court's holdings in Haley and Shepard, the Doctrine of Constitutional Avoidance applies to any application or extension of Almendarez-Torres, as blogged most recently here (third section, with links to briefing). Further, under Shepard, the characteristics of generic burglaries, such as those encompassed within the nongeneric the Oregon statute, must be established with Sixth Amendment compliance as a matter of statutory construction.

Which brings us to the grant of rehearing en banc in Grisel. As set out in CJA panel attorney Kendra Matthews' opening brief (linked here) and the Federal Defender amicus brief (linked here), en banc review is appropriate to bring the treatment of the Oregon statutes in line with post-Taylor case law and to apply Fifth and Sixth Amendment standards, as a matter of statutory construction, to a statute that is silent on pleading and proof on the characteristics and sequence of prior convictions. Although the order for en banc review does not define the issue, the statutory construction of the ACCA, in light of the intervening Supreme Court case law in Haley and Shepard, is necessary to analysis of the Oregon convictions under Taylor. We should be careful to preserve these issues pending the ruling in Grisel.

The other criminal case on the docket today, Jimenez-Ortega, resolved an intra-Circuit conflict without resort to en banc review. Federal Defender Kasha Pollreisz of the San Diego office won a remand for her client based on the intervening Supreme Court decision in Gaudin that undercut and superseded Ninth Circuit law that did not require a finding of materiality for an obstruction of justice adjustment based on trial perjury. This important win on a recurring sentencing issue should also help in arriving at the right result in Grisel. The key to Grisel's ruling that the case did not need to be resolved en banc -- and to all litigation regarding statutory enhancements based on prior convictions -- is the en banc decision in Miller v. Gammie on the effect of intervening Supreme Court authority. Just as the Supreme Court in Gaudin superseded Ninth Circuit precedent on materiality, the Supreme Court's decisions in Haley and Shepard superseded Ninth Circuit precedent on the pleading and proof required under the ACCA.

We should be using Jimenez-Ortega to request favorable rulings in the first instance and preserving all our challenges that involve Almendarez-Torres and the Doctrine of Consitutional Avoidance. Where not charged by indictment or proved beyond a reasonable doubt, statutory enhancements under recividist provisions such as the Armed Career Criminal Act and the immigrations statutes apply and extend the reach of Almendarez-Torres. Each of those statutes, which are silent on the manner of pleading and proof, must now be construed to be Fifth and Sixth Amendment compliant, just as the Ninth Circuit in its en banc opinion in Buckland reconstrued the federal drug statutes to require Fifth and Sixth Amendment compliance.

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

Case o' The Week: Ninth is living in a "Material" World - Jimenez and Obstruction

Kozinski, his former clerk (now Judge) Ikuta, and Reinhardt deliver a good per curiam decision with new law in the Ninth Circuit regarding the proof of obstruction of justice enhancements. United States v. Jimenez, __ F.3d __, Slip. Op. 121 (9th Cir. Jan. 5, 2007), opinion available here.

Players: Notable victory by San Diego AFPD Kasha Pollreisz.

Facts: Jimenez testified at a marijuana importation trial and was convicted. Id. at 123. At sentencing, the district court “characterized defendant’s trial testimony as ‘so incredible, in light of all of the evidence, that it was clear to the court that [he] intended to obstruct or impede justice with [his] version of the facts. [His] testimony was not the result of any confusion, mistake or faulty memory, but an attempt to willfully obstruct justice.’” Id. The court imposed an upward adjustment under USSG § 3C1.1, for obstruction of justice. Id.

Issue(s): “We address whether a district judge must make a finding of materiality before he can enhance a defendant’s sentence for obstruction of justice based on perjury under U.S.S.G. § 3C1.1.” Id. at 123.

Held: “Post-Gaudin, the materiality of a false statement is one of the factual predicates of an obstruction enhancement, and we must remand where the district court failed to make a finding on this point.” Id. at 125 (emphasis added). [ed. notee: United States v. Gaudin, 515 U.S. 506 (1995) is the Supreme Court case that held that the materiality of a false statement must be decided by the trier of fact].

Of Note: This little opinion addresses divergent case law in the Ninth as to whether the materiality of a false statement is a purely legal question, or a question of fact that must be determined by a trier of fact. The Court blames this divergence on the intervening Supreme Court decision in Gaudin. While normally an en banc panel would have to resolve a circuit conflict in its own caselaw, this three-judge panel notes and employs “an exception to this rule when one of our opinions has been superceded by intervening Supreme Court authority.” Id. at 125. Query if this dodge is a new trend, in a Circuit quickly weary of frequent en banc service in the new fifteen judge panels.

How to Use: Any decision that stiffens the requirements for an obstruction finding is welcome. In a world where clients are interviewed by both Pretrial and Probation, and often submit declarations in support of suppression motions, obstruction is of concern even when there is no testimony at trial. This is particularly true after November 1, 2006 – the newly amended guideline now permits the adjustment for “obstructive conduct that occurs prior to the start of the investigation of the instant offense of conviction.” USSG § 3C1.1, Historical Notes, 2006 Amend.

What is a “material” false statement? The guideline's commentary defines material evidence as “evidence, fact, statement, or information that, if believed, would tend to influence or affect the issue under determination.” Id. comment. n. 6 (emphasis added).

For Further Reading: “Woodshedding a client” – that is, coaching a witness to provide questionable testimony or evidence – is a delicate subject in the defense community. For an interesting, and thought-provoking article on this practice, see “Ethics in the Woodshed,” by Walter Steele, Jr., available here.

Another author suggests that practical limitations often prevent the subornation of perjury: “My conclusion – based solely on experience – is that we [attorneys] do not do badly, and not necessarily because of our sterling moral fiber. Practicalities help to keep us from pushing too far. In the first place, you can get, well, caught.” Article available here.


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

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US v. Jimenez-Ortega, No. 06-50007 (1-5-07). A defendant might lie on the stand, but did it really matter? Defendant was charged and convicted of importation drugs, and testified somewhat incredibly at trial. The court found his testimony so outlandish that he gave an adjustment for obstruction. The 9th (per curiam) remanded, reasoning that an obstruction adjustment requires a finding of materiality, and the court here failed to make such a finding. The 9th had two divergent sets of precedents, but elected to follow US v. Jimenez, 300 F.3d 1166 (9th Cir. 2002), which had followed the Supremes in US v. Gaudin, 515 US 506 (1995), where materiality must be decided by a trier of fact and was not a purely legal issue.

Lin v. Gonzales, No. 04-73860 (1-5-07). There is no bar against moving to reopen a deportation proceeding under 8 USC 1231(a)(5) only applies to a pending or present proceeding and is not a bar for all time. Once a removal is completed, the petitioner can try to reopen it in another proceeding. The ambiguity of the statute's present tense supports this.

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. Silva, No. 05-50871 (1-3-07). The defendant gets an Ameline remand. Although the sentencing court shrugged off the request for a resentencing, the defendant's smart lawyer has now asked for a chance for allocution, a last cry to change what the guidelines had written in fast-drying unfair concrete. Surely the court would grant that, and allocution should be granted in a limited remand situation. What could be unfair about that? The defendant looks forward to the chance to stand before the court, and in a halting, humble voice, say why his heart aches, say how the drug rehabilitation allows him to see his future clearly and not obscured in a drug hazed furtive search for the next hit. It is a chance, he thinks, to express his pain, his acceptance, and to retrace the steps he has taken, and not just the steps he has walked back and forth in his cell. Maybe, just maybe, the court's heart can be touched, an Ameline resentencing granted, and the sentence lightened just a little. Then the letter comes from his lawyer, with a cite to this case (Silva), in an opinion by O'Scannlain, that such sentiments are beside s the point in an Ameline remand. What does allocution have to do with the previous sentence imposed pre-Booker? After all, the court, reading cold paper, can decide that an Ameline remand sentence would not be different. In such a way, "i"s can be dotted on the procedure without having to look at a defendant's eyes. An Ameline remand gives the court a chance to consider whether a sentence would be different; but there is no right by the defendant to beseech, beg, or berate. Ameline is narrow, and neither federal rules nor due process require such an opportunity. The defendnat reads the letter, and balls it up, throwing it against the wall that he will stare dumbly at for the rest of his sentence. The silent tears will flow that night and in the nights to come.

Garcia-Jimenez v. Gonzales, No. 03-74625 (1-3-07). Petitioner gets only one bite out of the relief apple. If the petitioner gets waiver relief under former 212(c for certain removable offenses, he cannot also get cancellation relief under 1229b, even if the waiver and cancellation would occur at the same proceeding. The 9th (Silverman) follows the plain language of the statute and the intent that any receipt of waiver relief forecloses cancellation relief. This is the same result as the 8th Circuit.

Morales v. Gonzales, No. 05-70672 (1-3-07). Petitioner seeks relief on the denial of an asylum claim because she is transgendered and may suffer torture if deported back to Mexico. The 9th (Thompson) grants relief and remands because the BIA erred in using the recitation of facts in a state court opinion when those facts were not the basis of a state conviction and other facts used in a sufficiency of the evidence analysis.