US v. Doe, No. 05-50474 (5-29-07). Overseas travel can broaden one's horizon. It can also be expensive. And if one engages in criminal conduct, such as travel for sexual exploitation of a minor, one can be ordered to pay restitution. Here, the 9th (O'Scannlain joined by Hall and Callahan) hold that a defendant must pay restitution to an overseas child victim of sexual exploitation as a result of his conviction for travelling overseas to sexually abuse minors. The defendant is only identified as "Doe" because the case was sealed below. This unusual twist may be because of prison security, or perhaps concerns for the family and victims abroad. The defendant travelled to his native land and brought back pornographic photos of minor children, some of which showed him performing sexual acts. The photos were discovered as he cleared customs. He received 204 mos. He was ordered to pay restitution for counseling, education, and medical treatment for 8 out of 18. His objections went to his not being able to discern which victims were involved, the extent of the counseling required, or whether there was a casual connection between the abuse and the educational retraining. The 9th found it was not an abuse of discretion for the court to so order, focusing on the wide scope of restitution and the slight need for causation. The 9th moreover stressed that the restitution could be considered low because it was the developing world, and the costs were less (yes, that was there).

The case had a limited remand because the defendant requested to see any special SR conditions contemplated, but the court denied the request, stating that the objections could be interposed later. The 9th strongly disfavors this, and stressed that the defendant should be able to consider any SR conditions contemplated beforehand. (This provides another reason why Probation should disclose the sentence recommendation ahead of time.)

Kharana v. Gonzales, No. 04-71335 (5-29-07). The 9th (D.W. Nelson) holds that one cannot get a fraud conviction declassified as an aggravated felony as being over $10,000 by paying off the restitution ahead of sentencing. The petitioner tried to use that gambit, looking to the guidelines for support. The 9th was dismissive, reasoning that the guidelines departure applied to making restitution before charges are brought, not after. Moreover, the plea here was for greater than $10,000. Wallace concurred, stating though that a modified categorical approach should be used.

US v. Trimble, No. 06-30298 (5-30-07). Form over substance? Not in this case. The 9th (Berzon) reverses fines of $100 for traffic violations because of they were arbitrarily applied. The defendant got several tickets on a military base. She was ticketed with petty offenses and had to appear in court. When she did, she was fined more than others with similar offenses. Why? Because some officers used old ticket forms and others used new forms. Why? Well, the AO (yes, the AO) did not print enough new forms that added a "+$25" to the fine as a result of new legislation. The 9th brushed aside the magistrate's and district court's explanations about the need for privacy (mysterious, the 9th termed the rationale) and the need for revenue (true, but the fine should not rest on whether old or new forms used). Trying to save the convictions, the government also tried to argue that the defendant was put "on notice" but notice cannot come afterwards. The 9th holds that such arbitrary acts violate the equal protection clause of the 5th amendment. O'Scannlain concurred, grousing that the tickets were imposed arbitrarily, but that the opinion goes too far.

Congratulations to AFPD Jerry Kuh of the W.D. Wash. The Constitution applies to great and small matters.

US v. Lenihan, No. 06-30488 (5-30-07). Speaking of small matters, the misdemeanor probably seemed minor enough for the defendant when he waived representation and represented himself in a domestic violence case. He plead guilty. Here, he was found later with a gun, and was a prohibited possessor. The 9th held that the waiver of counsel was constitutional. The state misdemeanor court did not have to warn the defendant over the dangers and disadvantages of self representation under the circumstances since the Supremes have a sliding scale for such waivers under Iowa v. Tovar, 541 US 77 (2004). This overturns the 9th's Atkins case that had a higher standard for waiver. Under Tovar, the defendant bears the burden of proving that the waiver was unknowing and here he was informed that he had the right to counsel and that the conviction may have implications.

Pulido v. Chrones, No. 05-15916 (5-30-07). In a per curiam decision, the 9th affirms the granting of a petition because of an erroneous state jury instruction. Petitioner argued that he did not commit a felony murder during a store robbery because he became involved afterwards. He supposedly was in a car when the robber, and murderer, came out of the store with the register and ordered him to open the register. The state instruction was botched, stating that an aider and abettor can be guilty of a felony murder, but the defense was that he was not an aider and abettor. Moreover, the instruction for special circumstances had a typo, substituting "or" for "and." This instruction here was structural error under Lara. O'Scannlain concurred, stating that the standard should be reviewed by the Supremes, implying that Lara should be overturned, and that "harmless" review was appropriate. Thomas also concurs, taking issue with O'Scannlain, and holding too that even under a harmless error review, the petition should still be granted.

Case o' The Week: En Banc Curtin Divides Right. United States v. Curtin & FRE 404(b)

A useful en banc win on Federal Rule of Evidence (FRE) 403 balancing and review is overshadowed by a disturbing loss on FRE 404(b). United States v. Curtin, __ F.3d __, 2007 WL 1500295 (9th Cir. May 24, 2007), decision available here.

Writing for the en banc majority, Judge Trott (left) holds that stories about sex with children -- recovered from a defendant's PDA -- were admissible FRE 404(b) evidence in a "traveler" case where intent was at issue. Judge Trott parts ways with his Brethren on the Right: Judge Kleinfeld authors a vigorous (and persuasive) "dissent" (on the 404(b) issue), joined by Kozinski (right), among others.

Players: Judge Trott writes; Kleinfeld leads "dissenters" (on FRE 404(b)). [Kleinfeld and others concur on the 403, but effectively dissent on the FRE 404(b) issue].

Facts: Curtin was charged with traveling interstate to have sex with a minor. 2007 WL 1500295, *1. To prove “intent,” at trial the government admitted lewd stories about child sex that were on Curtin’s PDA when arrested. Id. A divided Ninth Circuit panel reversed, holding that “reading material” was not fair game as FRE 404(b) “character evidence.” Id. The Ninth took the panel's decision en banc.

Issue(s): “Curtin contends . . . . that (1) the five stories amounted to inadmissible character evidence, introduced only to show propensity in violation of Rule 404(a) of the [FRE], and (2) that the probative value of the stories was exceeded by their potential prejudice, in violation of Rule 403.” Id. at *6. “Curtin objected also to the admission of the stories in the district court. . . . . [T]his appeal address[es] whether sexually explicit reading material is admissible under Rule 404(b).” Id. at *7.

Held: 1. Re: FRE 404(b): (Reverses panel) “[W]e cannot say that the district court . . . . erred in determining that the stories in Curtin’s possession contained relevant evidence of Curtin’s intent.” Id. at *14. “We come now to the central question of whether there is something about relevant literature per se such that . . .‘possession of lawful reading material is simply not the kind of conduct contemplated by Rule 404(b).’ . . . . [W]e conclude that no such blanket exclusion or privilege exists.” Id. at *17 (citations omitted). “[W]e find nothing in the Constitution or in the First Amendment's guarantees of free press and free speech that would support such an exclusion or privilege.” Id.

2. Re: FRE 403: “Was the trial court in this case required to have read every word of these stories when exercising its balancing discretion pursuant to Rule 403 to determine whether their potential for undue prejudice substantially outweighed their probative value? Our answer here is in the affirmative. The inflammatory nature and reprehensible nature of these abhorrent stories, although generally relevant, is such that a district court making a Rule 403 decision must know precisely what is in the stories in order for its weighing discretion to be properly exercised and entitled to deference on appeal. . . . In this context, reliance on an offer of proof simply is not enough.” Id. at 21. “[W]e hold as a matter of law that a court does not properly exercise its balancing discretion under Rule 403 when it fails to place on the scales and personally examine and evaluate all that it must weigh. Relying only on the descriptions of adversary counsel is insufficient to ensure that a defendant receives the due process and fair trial to which he is entitled under our Constitution, as this case demonstrates.” Id. at *22.

Of Note: Judge Kleinfeld’s "dissent" (on FRE 404(b)) is passionate and persuasive. One of his most damning points is that the stories at issue (extracted from a zip file) were three times as long as War and Peace – and there was no showing that Curtin had actually read the things! With Kleinfeld and Kozinski among the 404(b) dissenters, maybe SCOTUS will add Curtin to the long list of Ninth Circuit reversals?

How to Use: Though a bad 404(b) case, this is a great process (Federal Rule of Evidence 403) decision. At minimum, Curtin holds that a court must personally review all 404(b) evidence before admitting it. Moreover, the Court quotes very favorably (and comes precious-close to holding) that an articulated FRE 403 balancing test is a necessary prerequisite to the admission of 404(b) evidence. See id. at *21 (discussing United States v. Merriweather, 78 F.3d 1070 (6th Cir. 1996)).

For Further Reading: Senior Judge Trott is an old hand at evidence issues. He was the Ass’t A.G. who argued United States v. Abel, the lead Supreme Court decision that supports the broad use of bias evidence (by the government). And of course, this decision, Curtin, endorses the broad use of character evidence (by the government). In United States v. Collins, however, Judge Trott upheld the exclusion of bias evidence (in that case, offered by the defense . . . .). 90 F.3d 1420 (9th Cir. 1996).


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


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US v. Sandoval, No. 06-30370 (5-23-07). The 9th (per curiam) affirms the use of a state court abstract for the discrete question of the length of the prior sentence imposed. The court did not use the abstract to guess at the nature of the conviction, which the 9th has held to be impermissible under Navidad-Marcus, 367 F.3d 903 (9th Cir. 2004). An abstract can be used, with charging documents, to see if a prior conviction qualifies as an aggravated felony under Valle-Montalles, 474 F.3d 1197 (9th Cir. 2007). The use of the abstract here was not an assessment of the prior, or a look at its nature; it was for the sentence imposed. The 9th also brushed aside an objection to the court's order for fingerprint exemplars.

US v. Jeremiah, No. 06-10397 (5-24-07). In a SR appeal, the 9th decided it did not have to decide whether a probation officer's swearing for a request for a warrant did or did not include the supporting facts. The reason was that the defendant was found in violation, and a conviction cannot void the arrest here. This differs from Vargas-Amaya, where the warrant and arrest was affected after the SR ran because here, the defendant was still under SR. The failure to conduct a PH was also waived because it was not raised before the district court at the admit/deny hearing. There was sufficient evidence for a violation finding although the evidence was open to interpretation. Finally, the 9th upheld the conditions and times of drug testing as the court set the number, and was appropriate.

US v. Curtain, No. 04-10632 (5-24-07). Sitting en banc, the 9th (Trott) reverses and remands a conviction in a child "traveler" case on the basis of the court failing to properly conduct a FRE 403 balancing test. The defendant here was ensnared in a sting operation with an undercover agent posing as a 13 or 14 year old girl. The defendant traveled to meet her. His defense attacked the specific intent, arguing was that this was all fantasy, and he was hoping that she was an adult woman who was also play acting. To rebut this, the government introduced reading material he had in his possession, some five pornographic stories that dealt with underage initiation into sex. The district court read two stories, tied their admission to intent, and allowed the stories in. He did not read all the stories for a 403 balancing test. All 15 judges agreed that the 403 analysis was flawed because the district court had to read all, and assess how unduly prejudicial they were (one unread story, for example, had bestiality involved). In the majority opinion, the 9th rejected any blanket ban against admission of legal reading or first amendment material to prove intent. Such a ban is unnecessarily broad. The opinion reviews the various circuits, and finds that in specific cases, with specific facts, and with specific defenses, such admission may be proper. It still must be balanced. Moreover, the 9th cautioned against a wide-open interpretation; it must be narrowed and tied. An example was a book about the great train robbery and a case involving theft from a train with similar details and circumstances. As for 403, the district court must review all the evidence and weigh and balance. That was not done here. In a number of concurrences, with strange bedfellows (Kleinfeld, Kozinski, Pregerson, Thomas and Berzon), concern was expressed at whether the issue had to be even decided (Wardlaw), or whether prior precedent could be taken as a ban (it was not) and that First Amendment concerns had a place in the analysis. Fantasy is not illegal.

US v. Meiners, No. 06-30389 (5-21-07). The 9th (per curiam) considers the 8th Amendment's prohibition against cruel and unusual punishment when it comes to a 15-year sentence for possession, distribution, and advertising of child pornography. Unsurprisingly, the 9th finds that the sentence is not "grossly disproportionate" to the gravity of the offense. The 9th does not even clear the first hurdle of the analysis, which is a threshold comparison of the crime and sentence imposed. Given the harm inflicted, the sentence does not strike the court as grossly disproportionate, and given the precedent in three-strike and other Eighth Amendment cases, this challenges fails.

US v. Orman, No. 06-10398 (5-22-07). The Fourth Amendment is sold out at the mall. Really. The defendant (a prohibited possessor) was seen by a public utility employee placing a gun in his boot before entering a mall. Security was alerted, which included an off-duty police officer moonlighting as security. He approached the defendant and asked him if he had a gun. The defendant said "yes." The officer did not see the gun but saw a bulge in the defendant's shirt, asked if that was the gun, and when the defendant again said "yes," the officer took the gun. Other officers had come, but stood away. The officer asked if they could continue to speak in a security office, where they went to. The defendant explained that the gun belonged to his wife, and they did not want to leave it in the car. The district court denied suppression and the 9th (Callahan joined by Goodwin and D. Nelson). The 9th explained that Terry is really a two-prong approach: stopping for reasonable suspicion and then a pat-down. Here, the stop was supported both by reasonable suspicion and by consent. The seizure of the gun was lawful for safety purposes.

Foote v. Del Papa, No. 06-15094 (5-22-07). The 9th considers a state petitioner arguing IAC because the court appointed the public defender's office on appeal after the public defender had been relieved of representation pretrial because of "irreconcilable conflicts." Petitioner argues that the Sixth Amendment requires conflict-free appointed appellate counsel. Under AEDPA, the 9th (Wallace joined by Thomas and Ezra) hold that there was no Supreme Court case right on point. Sure, they reason, an "irreconcilable conflict" between trial counsel and defendant may entitle defendant to a new counsel, see US v. Moore, 159 F.3d 1154, 1158 (9th Cir. 1998), but there is no Supreme Court case that applies this to appellate counsel. As such, the claim fails. This is not a case where the petitioner is essentially without counsel or where counsel is conflicted (the Sullivan exception) because of competing interests and this adversely affected performance. As such, the state supreme court did not unreasonably apply federal law.

(Ed note: This "Foote-note" to the Sixth Amendment seems too narrow as it is not a large step from trial counsel to appellate counsel. The record seems clear as to the antipathy between petitioner and the public defender's office, and one wonders what the petitioner would have to show. There is also no mention of any ethical obligations toward such representation.)

Case o' The Week: Categorically disappointing pair of Taylor decisions, Gomez-Mendez

Judge Kozinski (left) sits on two panels last week, with two disappointing results for the Taylor categorical analysis of state statutes. Nonetheless, former San Diego Community Assistant Defender Ben Coleman gives the panel a run for their money in an admirable challenge. See United States v. Gomez-Mendez, __ F.3d __, Slip. Op. 5651 (9th Cir. May 14, 2007), decision available here.

Players: Creative and aggressive challenge by Buckland counsel Ben Coleman (formerly of the San Diego Community Defender).

Facts: Gomez-Mendez pleaded guilty to illegal reentry. Slip. op. at 5655. He had suffered a conviction under Cal. Penal Code §261.5(d), for unlawful sex with a minor. Id. At sentencing, the court imposed a sixteen offense-level specific offense adjustment, treating this conviction as a “crime of violence” under USSG § 2L1.2. Id. Moreover, the government refused to move for the reduction of the third offense level for acceptance at sentencing: the district court made no findings about this refusal. Id.

Issue(s): 1. “We are asked to decide whether a defendant’s prior California conviction for unlawful sexual intercourse with a minor qualifies as a ‘crime of violence’ under the federal Sentencing Guidelines.” Id. at 5654.

2. “[W]e consider Gomez-Mendez’s argument that the district court erred in failing to apply an additional one-level reduction for timely acceptance of responsibility under U.S.S.G. § 3E1.1(b) because the government improperly refused to file a motion under that provision.” Id. at 5665 (footnote omitted).

Held: 1. “[W]e affirm the district court’s determination that Gomez-Mendez’s prior conviction for unlawful sexual intercourse by a person at least twenty-one years old with a minor under sixteen years old under Cal. Penal Code § 261.5(d) qualifies as a ‘crime of violence’ under U.S.S.G. § 2L1.2(b)(1)(A)(ii).” Id. at 5666.

2. “We remand this case to the district court for further proceedings to determine whether the government improperly refused to file a motion under U.S.S.G. § 3E1.1(b).” Id. at 5666.

Of Note: This is one of a pair of disappointing decisions on the Taylor categorical analysis decided last week. See also United States v. Carson, Slip Op. 5743 (9th Cir. May 15, 2007) (finding Washington assault statute categorically a “crime of violence” for § 4B1.2), decision available here. While both cases are defense losses (and thus neither can be commended), Gomez-Mendez presents a far better explanation of the Taylor categorical analysis.

One troubling aspect of the Carson decision is its eagerness to switch the burden on the defense. Specifically, Carson requires the defense to establish that a statute is overbroad, and thus cannot serve as a categorical predicate. Carson, slip. op. at 5748 (citing Gonzalez v. Duenas-Alvarez, 127 S.Ct. 815, 822 (2007)). Keep on eye on this troubling trend, sparked by Justice Breyer in the Duenas “theft offense” decision earlier this year.

The silver lining? The Court in Gomez-Mendez remands for factual findings on that safe-haven of the lazy prosecutor: the government’s refusal to move for the third acceptance point despite an open plea. When Espinoza-Cano was decided a year ago, we promised AUSAs would abuse this inane guideline: unfortunately, we were right.

How to Use: Pit bull Coleman shows how it is done in Carson. In a “dead” § 1326 case, he challenges the categorical characterization six ways from Sunday, including the lack of an affirmative defense to “sex with a minor.” Gomez-Mendez, Slip op. at 5659. Note Kozinski leaves open the possibility that a lack of affirmative defenses can derail a categorical categorization of a state crime as a “generic offense.” Id. at 5661.

To top it off, Ben revives the old Apprendi challenge to § 1326, arguing that the statute had changed since previous cases rejecting that attack. Id. at 5663. Want a defense primer on how to mount a no-holds barred attack on a categorical approach to a state crime? Gomez-Mendez, and Ben’s briefing, is the place to start.

For Further Reading: DOJ has proposed a new guideline for “acceptance of responsibility.” A defendant who pleads open, but files motions, gets no reduction. An open plea with no litigation gets one offense-level off. A pre-indictment plea earns a two-offense level reduction. If the defendant pleads before indigent counsel is appointed (thus saving government resources), she earns the three-level reduction. To read this proposed amendment in its entirety, visit the DOJ website here.


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

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U.S. v. Simiskin, No. 05-30590 (5-18-07). The hortatory treaty language for Indians usually pledges rights that are trounced as soon as it suits the government or states. In an exception, the 9th (Paez joined by D. Nelson and Thompson) hold that the 1855 Yakima Indian treaty, giving the tribe the right to travel on public highways, meant that the State of Washington could not require defendants (Yakima tribal members) to give notice of transportation of unstamped cigarettes. As a result, since there was no state violation, the federal indictment charging Contraband Cigarette Trafficking must be dismissed. The 9th affirmed the dismissal of the indictment. Thus, in this case, so long as the grass grows, the streams run, and the Yakima Treaty of 1855 is not abrogated, the Yakimas transporting unstamped cigarettes can travel freely without state notification.

The state cannot tax cigarettes sold to tribal members on reservations. They can tax cigarettes sold to non-tribal members. The state wants to keep track of what was sold to whom. Thus, the state wanted the notification of unstamped cigarettes transportation so they could track the cigarettes, and collect taxes on sales to non-tribal members.

The 9th goes through the applicability of the CCTA, the applicability of the treaty, and its interpretation of "travel", which was very broad. There is no evidence that Congress meant to trump treaty rights through the CCTA. "Goods" that travel on public highways are not limited to tribal goods, and the state's interest in regulation, say of fishing for conservation, is not applicable when the purpose of the regulations are revenue.

Congrats to AFPD Rebecca Powell of the Federal Defenders of Eastern Washington.

US v. Gomez-Mendez, No. 05-50729 (5-14-07). The 9th (O'Scannlain joined by Kozinski and Bybee) affirm a determination that California's "statutory rape" conviction was a crime of violence for 2L1.2 (illegal reentry) enhancements. Cal. Penal Code 261.5(d) makes it an offense if a person 21 or over has sex with a minor under 16. The 9th has no trouble finding it is a 'crime of violence" and finds it is not overbroad because it lacks the affirmative defense of "reasonable belief of age." No matter," declares the 9th because statutory rape is, in most states, a strict liability offense. The 9th also finds no merit in an argument that distinguishes between principal, aider or abetter, or accessory. The 9th does remand for the district court to determine if the government acted without any legitimate interest (irrationally) in refusing to move for a 3rd point. The defendant plead straight up to the indictment of 2L1.2.

US v. Hoang, No. 05-10669 (5-14-07). T he 9th (Wardlaw joined by Trott and W. Fletcher) hold no fourth amendment violation occurs when the Fed Ex package suffers a temporary diversion. The fourth amendment possessory interest is in timely delivery; here, the brief diversion or delay did not affect that interest. There was also no Fourth Amendment issue in the dog sniff of the package, which was random.

US v. Carson, No. 06-30387 (5-15-07). The 9th (per curiam) holds that Washington's second-degree assault statute is a "crime of violence" for the career offender enhancement provision under USSG 4B1.1. The second degree assault statute punishes the knowing infliction of bodily harm and under a categorical approach under Taylor, it qualifies as a crime of violence.

Case o' The Week: Reinhardt "brings to" en banc opinion a majority on "brings to" statute, Lopez

A great en banc decision by Judge Stephen Reinhardt (left), and a great win by the San Diego Community Defender, means a dramatic change for border defense practice. See United States v. Angelica Lopez, __ F.3d __, 2007 WL 1309689 (9th Cir. May 7, 2007), decision available here.

Players: Another win for Chief Appellate Attorney Steve Hubachek of the San Diego Community Defender.

Facts: Angelica Lopez was arrested by the Border Patrol while driving a van full of undocumented aliens in San Diego County. Lopez, 2007 WL 1309689,*2. She was charged with bringing an alien to the US for financial gain, aiding and abetting, and transporting an undocumented alien within the US. Id. at *1. The “bringing to” charge carries a five year mandatory minimum. Id. at *3. At trial, alien material witnesses and the defendant herself testified that she picked the aliens up after they had been smuggled across the border, in the United States. Id. at *2-*4. She was convicted, and got the mand-min five years. Id. at *3.

Issue(s): “The issue before us is whether a driver who transports a group of illegal aliens from a drop-off point in the United States to another destination in this country commits only the offense of transporting aliens ‘within’ the United States or whether that individual is also guilty of the additional offense of aiding and abetting the crime of ‘bringing’ the aliens ‘to’ the United States. See 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(2) (2000); 18 U.S.C. § 2 (2000).” Id. at *1 (footnote omitted).

Held: “We hold that although all of the elements of the ‘bringing to’ offense are satisfied once the aliens cross the border, the crime does not terminate until the initial transporter who brings the aliens to the United States ceases to transport them-in other words, the offense continues until the initial transporter drops off the aliens on the U.S. side of the border. At that point the offense ends, regardless of the judicial district in which the termination occurs. Because, here, the defendant transported undocumented aliens only within the United States and did so only after the initial transporter had dropped the aliens off inside the country, and because there is insufficient evidence to establish that the defendant otherwise aided and abetted the initial transportation, we reverse the convictions on the ‘bringing to’ offense.” Id. at *1

Of Note: This masterful Reinhardt opinion is worth a read in several respects. First, it has had an immediate impact on defense practice on the border. AUSAs there have been fond of abusing the “bringing to” statute to threaten mand-mins, and coerce “fast track” (high-custody) deals. Lopez has put a quick end to that abuse: we’re already hearing reports of better deals and more freedom to try cases. The decision is also interesting for its discussion of Section 1324 and how the subsections of this statute interrelate.

Finally, the en banc case is a revealing snapshot of Circuit fault lines: Chief Judge Schroeder, Judges Reinhardt, Pregerson, Kozinski, Hawkins, Thomas, Graber, Gould, Berzon and Smith prevailed, Judge Bea “specially” concurred, and Judges Tallman, Rawlinson, Clifton and Callahan (forcefully) dissented.

How to Use: An easily-overlooked (though important) part of Lopez is its critical analysis of “aiding and abetting.” See id. at *11-*12. That discussion is a welcome re-emphasis of A&A’s mens rea requirements. Judge Reinhardt insists that an “aider and abettor” is only one “who, with mens rea ... commands, counsels or otherwise encourages the perpetrator to commit the crime.’” Id. at *11. Use this great language in where aiding and abetting liability is in play.

For Further Reading: How long this appellate victory will survive Congressional “correction” is an open question. Earlier this month, (Democrats) in the House of Representatives sent a bill to the Senate that dramatically increased funding for border enforcement – but that did not include committee provisions which “toughen[ed] penalties for alien smuggling.” See ABC News article here. This bill, however, evoked a promise of a Presidential veto. See id. Meanwhile, bipartisan negotiators in the Senate reported on May 9th what they call a “grand bargain” on immigration, which addressed the severity of penalties for illegal immigrants. See New York Times article here.


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


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Serrato v. Clark, No. 06-15167 (5-9-07). Boot camp was dumped by the BOP. No comment, no hearing, no notice. A defendant who plead, and who was eligible, and indeed counted on it, brought a habeas challenge. The district court dismissed. The 9th (Bea joined by Farris and Clifton) affirmed, finding that the petitioner had no substantive right to a boot camp program. BOP's action was within its legal discretion because of a lump sum appropriation, and did not require notice and comment. BOP's act furthermore did not violate any sentencing statutes nor was a violation of separation of powers. Finally, petitioner could not rely upon the ex post facto clause nor retroactivity. Thus, boot camp ends by an administrative fiat by BOP, and with deference to that act buy the courts.

US v. Simtob, No. 06-30120 (5-11-07). We consider ourselves fortunate if we get a reversal of any kind; so, how fortunate would it be if the defendant gets reversal of his convictions for jury bias AND a reversal of the SR violation because the court used the underlying conviction to max him out. The defendant here was on SR when he got other drug charges. At trial, a juror complained that the defendant was "eye-balling" her. The judge said, "stop it," but never investigated or questioned the juror for bias. The 9th (Ezra joined by Fisher and Tallman (!)) reversed. The court has to investigate further when such an issue arises. The judge should have inquired of the juror whether she could continue to be fair and to see what the extent of the concern was. The court had given the defendant 240 months (guideline max was 97).

As for the SR violation, the 9th reversed because the court used the underlying conviction as the sole reason for a max of 3 years. In US v. Miqbel, 444 F.3d 1173 (9th Cir. 2006), the court stated that the seriousness of the underlying criminal offense cannot be the main or primary reason for a revocation sentence. The SR statute, 3583, omits, for example, 3553(a)(2)(A). The sentence should focus on the breach of trust aspect, and not on the seriousness of the underlying offense or respect for law. Now, the 9th opines, this does not mean a court cannot consider the underlying criminal conduct, but the consideration has to deal with trust, reintegration into society, and other trust factors. The 9th stresses though that '{a] district court may not impose a revocation sentence solely, or even primarily, based on the severity of the criminal offense underlying the revocation, as the sentence for that offense is left to the sentencing court."

Sure this means that a court accomplish the same goal by dress it up in breach of trust language, but the court has to connect the sentence to breach of trust, and the underlying new conduct. It is that step or nexus that can be reviewed.

This is a reversal of another Montana case (Haddon).

Congrats to David Ness of the Montana Federal Defenders (Great Falls).

Lambright v. Schriro, No. 04-99010 (5-11-07). Granting a petition for IAC at capital sentencing. Petitioner argued IAC at sentencing based on shoddy and insufficient investigation of past mental illness, drug use, deprived and depraved childhood, and PTSD from Vietnam. The panel (per curiam of Ferguson, Reinhardt, and D. Thompson with a concurrence by Ferguson) basically held that the counsel, under Wiggins, had an obligation to investigate and uncover mitigation. Moreover, the court erred in connecting or requiring a nexus between the mitigation and the offense. The mitigation is separate from any defense, or the standards for a defense). Concurring, Ferguson stresses the nature of PTSD and the fact that petitioner's description of tour in Vietnam may not have been accurate does not preclude other bases for PTSD.

Congrats to AFPD Jennifer Garcia of D. Arizona (Phoenix).

US v. C.M., No. 05-50585 (5-8-07). It is almost like the border patrol thought to themselves, "How can we violate every single provision of the Juvenile Delinquency Act (JDA)?" This is a juvenile case, in which the defendant was apprehended for possibly smuggling aliens. He was not taken directly to a magistrate, his request to speak to the Mexican Consulate was ignored, and no family members were contacted despite the juvenile providing the information of their whereabouts. Of course he confessed, but that was really the only evidence that he knew the passengers were illegals. The 9th (Ferguson joined by B. Fletcher) found no constitutional error, but blatant and pervasive violations of the JDA that rose to misconduct. The adjudication was reversed and the case remanded. The opinion details every misstep by the officers, and every point where they had a chance to take action under the JDA but chose to violate the JDA instead. Dissenting, Callahan does not quarrel with the violations, but is inclined to find them harmless. In any event, she would remand for a determination of the remedy for misconduct rather than a reversal of the adjudication.

US v. Esquivel-Ortega, No. 05-30355 (5-8-07). Life may be a highway, but just because you're a passenger in a van that's stopped, and you get upset, it doesn't mean you're part of a drug conspiracy using the road. The 9th (Tashima joined by Berzon and (!) O'Scannlain) reverse for insufficiency of evidence. The first issue was standard of review, because the defendant moved for acquittal, and then put in government discovery and evidence for its case without renewing the motion. The 9th found that it should still be de novo because nothing had really changed, and the evidence was already before the court. The facts had the defendant and his family as passangers in a van that had a secret compartment. Someone else was driving. The DEA had an undercover operation that called and a man with a Hispanic accent answered the CI's call. There was nothing that linked the defendant or his family to the van besides their being passengers -- they did not own it (a relative did), they only shared the driving, and they were going on vacation. Essentially the government's case was that defendant became upset when told the van would be impounded and he said that he had never been in trouble, and was worried about his family, who were with him. There were a few tools in the van, some bondo, and fast food trash. The 9th could not find the link of knowledge and so reversed for insufficiency. There is a nice summary of the insufficiency evidence cases with drugs in the opinion.

An interesting day in the 9th, where in one opinion there are dueling concurrences over what role a judge should play in Ameline remands, an Apprendi error that was deemed harmless, and an en banc that interprets "bringing to" to mean where illegal aliens are dropped off, and thus is a circuit split.

US v. Fifield, No. 06-30171 (5-7-07). The defendant got an Ameline remand, but the court just resentenced, without asking counsel's views on sentencing before the final decision. This is the requirement in U.S. v. Montgomery, 462 F.3d 1067 (9th Cir. 2006). The 9th (Tashima) finds error and orders a remand for a resentencing. In a concurrence, O'Scannlain bemoans the transformation of the neutral judge in an advisory system into an active participant in having to bear the burden, shoulder the responsibility, take the first step in soliciting counsels' views. O'Scannlain sees this as an affront to the common law and shaking the very foundations of the Anglo-American jurisprudence. ("Montgomery requires judges to overlook their limited role in a centuries-old American tradition of adversarial litigation.") O'Scannlain is bound by Montgomery but urges this to go en banc to free the judiciary from its crushing and unseemly task. Tashima and Berzon then take the unusual step (since Tashima authored the opinion) of filing a separate concurrence to disagree with O'Scannlain, pointing out that Ameline is judicially crafted and requires nothing more, nor nothing less, than notice and an opportunity to be heard. The court must do due process. Tashima concludes that, "I do not believe that requiring 'sentencing judges to notify counsel' places an 'undue burden' upon them or, in any manner, 'misapprehends the proper role of the judge.'"

Congrats to AFPD John Rhodes from the D. Montana (Missoula).

US v. Hollis, No. 05-30611 (5-7-07). The 9th affirms a drug conviction and sentence (240 mos) despite Apprendi error. The defendant was convicted of distribution of "cocaine base." He argued that the mandatory minimum was inappropriate because the indictment and special verdict only stated "cocaine base" and not "crack." There could be other forms of cocaine base, argues defendant. "True," answers the 9th, and agrees that the indictment must state "crack" to get the mandatories. This agrees with the other circuit that considered this post-Apprendi. However, although there was Apprendi error, the evidence was overwhelming (you see where this is going) and so any error was harmless. The 9th also found no merit in the argument that 404(b) of other drug sales was improperly admitted on the basis that the only evidence was a cooperating witness. The 9th said that went to the weight. A better argument would have been at the time of the prior acts, or type of drugs.

US v. Lopez, No. 05-50415 (5-7-07) (en banc). The 9th (Reinhardt with Schroeder, Pregerson, Kozinski, Hawkins, S. Thomas, Graber, Gould, Berzon, and Smith)) rules that under 1324(a)(2):

We hold that although all of the elements of the "bringing to" offense are satisfied once the aliens cross the border, the crime does not terminate until the initial transporter who brings the aliens to the United States ceases to transport them -- in other words, the offense continues until the initial transporter drops off the aliens on the U.S. side of the border. At that point the offense ends, regardless of the judicial district in which the termination occurs.

A defendant who transports, or aids and abets, after the initial drop off, but before the so-called final destination, is "only" guilty of transporting "within" the U.S. The decision (en banc) canvases the statutory language and intent, and holds that the offense must end when the aliens are dropped off.

Concurring, Bea would find that under a strict reading the statute, the crime ends once the border is crossed. This expansion to the drop off is a case of statutory interpretation that is uncalled for.

Dissenting, Tallman (joined by Rawlison, Clifton and Callahan) decry that this circuit contravenes established precedent in other types of smuggling cases (drugs or contraband), undermines congressional intent, and is contrary to the DC, 1st, 3d, 5th, 6th, 8th, 10th, and 11th circuits).

Congratulations to AFPD Steven Hubachek of the Federal Defenders of San Diego.

Case o' The Week: Ninth Brooks Bibler Thumper -- US v. Brooke Bibler, and Appellate Jx

The Honorable Judge Sam Haddon (left) clearly got a sentence wrong when he held Booker eliminated the Safety Valve (again). In a very disappointing decision, the Ninth found it had no jurisdiction to correct this error because of an appellate waiver. See United States v. Brooke Bibler, No. 06-30375, __ F.3d. __, Slip. Op. at 4949 (9th Cir. May 4, 2007), decision available here.

Players: Yet another Booker- related appeal of a sentence imposed by the Hon. Sam E. Haddon of Montana. See blog here (discussing Judge Haddon's role in shaping Ninth Circuit Booker jurisprudence).

Facts: Brooke Bibler pleaded guilty to drug charges that carried a ten year mandatory-minimum. Slip. Op. at 4952. She was Safety Valve eligible, and after she cooperated the PSR recommended 41-51 months. Id. Judge Haddon instead gave her eighty months, based on his – novel – (and incorrect) view that Booker eliminated Safety Valve. Id. at 4953. (This is the second Ninth Circuit opinion discussing that novel approach). Although Bibler’s plea agreement contained an appellate waiver, she took Haddon up.

Issue(s): “An appellate waiver will not apply if . . . the sentence violates the law. . . . A sentence is illegal if it exceeds the permissible statutory penalty for the crime or violates the Constitution.” Id. at 4954.

[ed. note: The issue was whether the Ninth could conduct a substantive appellate review. It held it could only do so (despite an appellate waiver) if the sentence was illegal. The issue was thus whether this sentence was, "illegal."]

Held: “Even assuming that the district court erred in failing to apply the safety valve statute, which this court has held to be mandatory post-Booker, see United States v. Cardenas-Juarez, 469 F.3d 1331 (9th Cir. 2006), this error does not render appellant’s sentence illegal because § 3553(f) does not lower the permissible statutory penalty for the crime.” Id. at 4954. “If defendants intend to preserve a larger subset of their appellate rights, this must be bargained for in the plea agreement. For instance, defendants could reserve the right to appeal in case of plain error, or in case the district court issued a sentence that exceeded a particular period of time. But absent such a bargained-for term, or the applicability of an exception, a knowing and voluntary waiver of appellate rights will preclude substantive appellate review in this Court.” Id. at 4955 (emphasis added).

Of Note: This little decision has quickly generated big interest from the Defender community. San Diego appellate gurus Steve Hubachek and Shereen Charlick have noted that this egregious sentencing error doubled Ms. Bibler’s sentence exposure. They note that the Court’s cramped view of its own jurisdiction to correct this error is out of step with other circuits. See United States v. Gwinett, __ F.3d __, 2007 WL 1217733, *2 (3rd Cir. Apr. 26, 2007). Moreover, other circuits have allowed relief in egregious cases despite appellate waivers. See, e.g., United States v. Khattak, 273 F.3d 557, 562-63 (3d Cir. 2001).

In a similar vein, Sacramento appellate expert David Porter has an en banc case pending that challenges the Ninth’s refusal to exert appellate jurisdiction after an unconditional guilty plea. United States v. Castillo, No. 05-30401 (argued Mar. 21, 2007). In recent briefing, David touts four Supreme Court decisions from the last five terms that conclude that a party’s litigation conduct cannot strip a federal court of subject-court jurisdiction.

The Bibler sentence is plainly wrong; the fact that it can't be touched on appellate review is unjust. Some very smart folks are taking a very hard look at this issue of appellate jurisdiction: stay tuned for further en banc action.

How to Use: Judge Betty Fletcher means well by encouraging us to carve out exceptions to negotiated appellate waivers. On a level bargaining playing-field, that would be great advice. Unfortunately, defense “bargaining” is better described as defense “groveling:” we usually don’t have a lot of leverage to demand these exceptions. There’s two solutions to this problem.

First, an enlightened United States Attorney's Office should agree to carve out an exception to appellate waivers for plain error. Given DOJ’s slavish devotion to the guidelines, this is in the government’s interest – after all, it purports to be very concerned that guideline calculations be accurate. (In this case, for example, the government has previously conceded in the Ninth that Judge Haddon simply got his safety valve/Booker analysis wrong. The government should want that sentence corrected).

Another answer is for district courts to insist that plain-error review survive appellate waivers. Judge Charles Breyer in the N.D. Cal. has been very active in this area, and has a standing order about appeal waivers. Academics, the bench, and DOJ should take a closer look at Judge Breyer’s reasoning – his approach would nip this appellate-jurisdiction conundrum in the bud.

For Further Reading: Judge Breyer’s standing order on plea agreements is available here.

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


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US v. Sine, No. 05-10575 (5-1-07). The 9th decides that a district court's description of defendant Sine's sin was reversible error. The 9th (Berzon joined by B. Fletcher and Trager) consider the appeal of a lawyer who engaged in a complex, complicated, and completely fraudulent pyramid scheme. As the pyramid started to collapse, he started to concoct a "good faith" defense. In a move tantamount to crying, "Look, the pyramid is falling, what a surprise!", he began to file lawsuits around the country attacking those who recruited for failing to put up enough collateral. A district court judge dismissed the suit, held him in contempt, and in the proceedings and order denounced the defendant as deceitful and other unkind characterizations. The prosecutors in the E.Dist. Ca. used that order and findings in their case, and in cross examination. On appeal, the prosecutors argued that the good faith defense opened the door. The 9th slammed that argument shut. The 9th held use of the judgment and order was error, and pretty bad error on hearsay FRE 403 grounds. Indeed, the 9th stresses that "Such use of the judge's statements was highly improper. It both unfairly prejudiced Sine and introduced impermissible hearsay into the trial." Alas, the defendant never objected! So, although there was error, in light of the overwhelming admissible evidence, it was harmless.

Note the nice literary touch: "[W]hile prosecutors are not required to describe sinners as saints, they are required to establish the state of sin by admissible evidence unaided by aspersions that rest on inadmissible evidence, hunch, or spite." Quoting US v. Schindler, 614 F.2d 227, 228 (9th Cir. 1980).

US v. Ray, No. 06-30466 (5-3-07). The 9th holds that Booker has no effect on the revocation of supervised release. Booker does not set the stat max at the applicable guideline range for subsequent violations. The 9th (Tashima joined by B. Fletcher and O'Scannlain) join all the other circuits in so holding. Moreover, this decision comports with recent the circuit's recent precedent concerning sentencing for probation and SR violations without being restricted by previous guideline ranges.

US v. Bibler, No. 06-30375 (5-4-07). At sentencing on a plea bargained drug case with a mandatory minimum, the district court held that the safety valve did not apply post-Booker. This was wrong. The 9th has held that the safety valve, being legislative under 3553(f) does apply. See US v. Cardenas-Juarez, 469 F.3d 1331 (9th Cir. 2006). The defendant, however, had entered into a plea agreement in which she waived her appellant rights. The 9th here (B. Fletcher joined by Tashima and O'Scannlain) said "too bad." The defendant waived and so the 9th lacks jurisdiction. The fact that the district court legally erred does not make a sentence illegal. The defendant should have kept appellant rights on this issue.

THIS SHOULD BE A WARNING. The government insists on appeal waivers in most cases. Before one agrees, recognize this is broadly construed. Use this case to point out why one may need an exception for safety valve, or other adjustments. Defendants cannot depend upon the kindness of courts.

Neglected Compassion: Reduction of Federal Prison Terms Under 18 U.S.C. § 3582(c)(1)

Here’s a tragic story with a hopeful ending. When Congress enacted the Comprehensive Crime Control Act of 1984, everyone knew the actual time prisoners serve for federal crimes was going to skyrocket – as indeed it did. With this knowledge, Congress included in two places a provision for reduction of sentences based on "extraordinary and compelling" circumstances arising well after the federal sentence becomes final.

The basic provision is 18 U.S.C. § 3582(c), which allows the federal judge to reduce the term of imprisonment, after considering the 18 U.S.C. § 3553(a) factors, where "extraordinary and compelling reasons warrant such a reduction." The statute names the Director of the Bureau of Prisons as the person to commence such a proceeding by filing a motion. Congress then assigned to the Sentencing Commission the responsibility – in the mandatory "shall" language – for expanding on the statutory language in § 3582(c) by setting criteria and providing examples, with the only limitation that rehabilitation "alone" is not sufficient. The statute, 28 U.S.C. § 994(t), states:

"The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason."

And here’s where the story gets ugly. In the twenty years since the Guidelines went into effect, the Sentencing Commission has not acted on the mandatory direction in § 994(t). The over 700 amendments have almost all ratcheted up the sentences defendants must serve, but the provision giving the sentencing court broad authority to reduce a sentence that is too harsh in light of subsequent developments – such as illness, infirmities, extraordinary family needs, acts of heroism, and rehabilitation – was not implemented.

Even worse, with no consideration of the broad statutory language and the ameliorative purpose, the Bureau of Prisons filled the vacuum with the Death Rattle Rule: the only ground for filing a motion was terminal illness and, in practice, the motions were rarely filed until the last moments of life. The policy is pathetic: with almost 200,000 federal prisoners, the BOP has only filed an average of 46 motions in each of the last five years. And the telling statistic is that in about 16% of the cases where motions are filed, the prisoner died before a federal judge ruled on the motion.
For practitioners in a melancholy area of law, we deal with some of the most heart-breaking situations where prisoners and their families have tragic medical situations or other astoundingly strong equities but no path to the judge. We have sometimes had the good fortune to use § § 2241 or 2255 to begin litigation and either reach a compromise amended sentence or a release pending final disposition or a meritorious ground for relief. But much more often, people with no reason to be serving the long Guidelines sentences, with changed circumstances that are extraordinary and compelling by any measure, remain in custody.

Now the hopeful news: The Sentencing Commission has proposed an amended policy statement that implements its duty under § 994(t) by spelling out grounds that constitute "extraordinary and compelling" circumstances. The proposed amendment is linked here. The American Bar Association, former Pardon Attorney Margy Love, the Families Against Mandatory Minimums, the National Association of Criminal Defense Lawyers, the Federal Defenders, and others have played roles in bringing this matter forward and, thankfully, the Sentencing Commissioners have recognized that the time has come to make the § 3582(c) provision meaningful by adding to the circumstances warranting relief.

Once the policy statement becomes effective, it will be interesting to see if the Bureau of Prisons recognizes the critical but ministerial role it plays under the statutory scheme. Under § 3582(c), the "it" that must find that the sentence reduction is appropriate is the Judiciary in the form of the sentencing court. The BOP, when it becomes aware of conditions arguably meeting the criteria under § 994(t), should alert the federal judge by motion to allow for the decision on the merits of the claim. To date, the BOP has adopted an unlawfully limited view, recently proposing another rule embodying its Death Rattle Rule. The Federal Defenders and others have pointed out the many ways the rule is unlawful, as a violation of delegation doctrine, separation of powers, and the plain meaning of the statute (the Federal Defender comment is available here).

So at a time when the federal prison population is setting new records, we may have a mechanism for ameliorating long sentences that are no longer serving the purposes of sentencing and, if not serving those purposes, are pointlessly and expensively cruel.

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