Ninth Circuit Rule Changes

Effective July 1, 2007, the Ninth Circuit has promulgated amendments to its rules in several areas, as linked here. Two changes are of special interest along with some minor adjustments.

First, the continuing debate regarding the contents of Excerpts of Record came to at least a partial resolution. Some judges want the Excerpts to give them every scrap of paper in the record, while others want to be able to tuck the briefs and Excerpts under their arm as they board the airplane for their next calendar. The compromise is to require that, for Excerpts of more than 75 pages, the essential documents must be provided in what, in some cases, will apparently be a very short first volume.

The intention for sentencing appeals is a bit mysterious: the essential documents could include the relevant page(s) of the presentence report (if not sealed), the objection and sentencing letters or memorandums on the issue, the transcript deciding the question, followed by the findings of fact order and judgment. But that is not what the rule seems to say, which can be read to simply call for the transcript and any written decision deciding the question as Volume I -- which could be so short it would be more sensibly included as an addendum to the brief. The problem with rules, like Guidelines sentencing, is that one size doesn't fit all.

In commentary, the Court also weighs in on the debate regarding chronology or logic as the organizing principle for Excerpts. The preference is for chronology, unless there is a good reason for a different presentation. The bottom line: think through your Excerpts as you do your brief for clarity and ease of use by the judicial consumer.

Second, the Court ended the grand experiment of 15-judge en banc panels, which had originally been scheduled to last for two years. The additional judges really did not seem to affect the dynamics of argument; there just ends up being more judges who say little or are silent. I wonder if, with so many judges involved, there is a tendency to pay less attention to en banc briefing and argument on the assumption that others will pull the weight. For whatever reason, we are back to eleven-judge en banc panels.

The Court's new rules formalize the good practice of attaching the relevant statute, regulation, or rules at issue as an addendum to the brief, separated by a “distinctively colored page.” The amendments also provide detail regarding Rule 28(j) letters, including the preference that such letters be submitted seven days before oral argument. No last minute computer searches? The amendments also address amicus briefing.

If this isn’t enough excitement for you appellate advocates, we have more: coming soon we have the Supreme Court rule amendments here, which include word limits in addition to page limitations, briefing changes in timing and amicus procedures, electronic filing of merits briefs, and an increase in bar admission fee to $200. The new rules are scheduled to go into effect on October 1, 2007.

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

US v. Sperow, No. 05-30483 (7-26-07). Crossing "t"s and dotting "i"s, especially when it comes to notices of enhancements. Here, the defendant faced an enhancement and a mandatory minimum of 10 years because he had a prior drug conviction and the weight of marijuana was over 100 kilograms. A notice was filed stating both grounds. Before trial, the marijuana was reweighed and it came in at 98.5 kilograms. The government then filed a notice striking "the second paragraph of the indictment" which contained the enhancements because of the weight. At trial, the court questioned whether this affect sentencing, and the government stated that the maximum the defendant faced was 20 years (the non-enhanced stat max). The government also agreed on this interpretation when the PO contacted them, but then changed its mind, and argued that the striking only went to the weight, and not the prior. The court went along and sentenced the defendant to the mandatory 10 years. On appeal, after disposing of a post-indictment delay issue, the 9th reversed and remanded. The 9th (Fisher joined by Ferguson) concluded that the government's actions could be read both ways, but the government had so acted, and had taken the position that it both bases. Its strike had to be given force. The government's reliance on Severino was misplaced, because notice there went to identifying which conviction was to be relied upon rather than an ambiguous filing here, and the actions of the government that indicated the striking of the enhancement. In dissent, O'Scannlain argues that the defendant had fair notice, and the district court's determination of such should be affirmed.

Case o' The Week: Ninth's Home is its Castillo, No Limits on Subject-Matter J/X

In the recent Jernigan decision, the very experienced Judge Betty Fletcher (left) lead an impressive 13-2 en banc majority to reverse a conviction for Brady error. See blog here. Not to be outdone, relative-newcomer Judge Bybee (right) leads a 14-1 majority in Castillo, to hold that procedural rules do not strip the Ninth of subject-matter jurisdiction. United States v. Castillo, __ F.3d. __, 2007 WL 2120232 (9th Cir. July 25, 2007) (decision available here). A great victory for our public defender colleague Dave Porter.

Players: Very important en banc win by E.D. Cal. AFPD (& RPCV) David Porter. Decision by Judge Bybee, lone dissent by Callahan.

Facts: Castillo lost suppression motions on a § 922(g)(1) [felon in possession] charge, then entered into a plea agreement. 2007 WL 2120232, *2. It wasn’t a “conditional” plea that preserved the right to appeal the motion – it just allowed a sentencing appeal in limited circumstances. Id. Nonetheless, Castillo appealed the motion, and not the sentence. Id. The government “[i]nexplicably” didn’t assert the plea agreement as a bar to the appeal. Id. at *3. The panel held the Ninth had no jurisdiction to hear Castillo’s claims and dismissed the appeal. Id.

Issue(s): “We granted en banc review in this case to resolve a question to which we have given inconsistent answers: Do we have jurisdiction to hear an appeal when the defendant entered a guilty plea in which he waived his right to appeal?” Id. at *1.

Held: “We now hold that a valid guilty plea does not deprive the court of jurisdiction and remand to the panel for further proceedings.” Id. “[W]e conclude that our procedural rules do not expand or contract our jurisdiction and that the action or inaction of the parties neither confers jurisdiction nor deprives us of the power to adjudicate a case.” Id. at *6.

Of Note: Castillo will be a seminal cases on subject-matter jurisdiction to hear a criminal conviction appeal. Judge Bybee carefully explains the difference between subject-matter jurisdiction (bestowed by Congress, cannot be waived by the parties) and procedures (like appellate waivers) which can result in dismissal, but which are subject to waiver or forfeiture. Id. at *3-*4. “Procedural rules do not create or withdraw federal jurisdiction.” Id. at *5 (citation and internal quotation omitted). Thus, although Federal Rule of Criminal Procedure 11 creates the process permitting conditional appeals, “[n]othing in Rule 11 affects our jurisdiction to hear Jacobo Castillo’s appeal.” Id. at *6.

How to Use: Remember Bibler? In this recent, tragic case, a female cooperator got ten years based on District Court Judge Haddon’s repeated and erroneous view that Booker eliminated the Safety Valve. See Case o' The Week blog here. The Ninth dismissed the appeal, originally holding that it lacked jurisdiction because of an appellate waiver.

Last May, we noted that Dave Porter had Castillo pending, and that in Bibler the Ninth was woefully out-of-step in its view of its own jurisdiction to correct a manifestly unjust sentence. See id. Since then, Bibler has been twice amended, but the tremendously unjust sentence still stands. See Bibler, __ F.3d. __ 2007 WL 2050956 (9th Cir. Jul. 19, 2007).

With Castillo’s welcome jolt of jurisdictional juice, the Ninth should take another look at Bibler and revisit its own ability to hear cases of egregious error despite appellate waivers – after all, third time’s a charm.

For Further Reading: Thanks to Judge Haddon’s clear error and the Ninth’s dismissal, Ms. Bibler will be incarcerated at FCI Phoenix until 2011. This is unjust: U.S. Attorney / Associate A.G. Bill Mercer should whip together a Rule 35 letter, get Bibler back before Haddon, and let the poor woman get her Safety Valve break. See Bill Mercer press release here. Of course, the really classy thing would have been to have never asserted the waiver in the first place, and allow the sentence to be corrected through remand from the Ninth . . .



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

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Winzer v. Hall, No. 06-55327 (7-23-07). Confronting AEDPA? Here, petitioner was convicted on making a terrorist threat to his on-again off-again girlfriend when he supposedly said "I'll smoke you and you daughter" while patting his waistband as if he had a gun. The 911 call, which was described by the state trial judge as "one of the calmest " it has heard, was precluded, but the statement came through the officer who interviewed the mother hours later as a "spontaneous utterance" under state law. The mother never showed up for trial; the daughter could not recall. The petitioner was convicted though and got nine years. The 9th (Molloy joined by Kozinski and Trott) granted the petition because the petitioner's confrontation clause rights were violated. Although this occurred pre-Crawford, the right to confrontation was still present under Roberts and Lilly. That right was violated here when the hearsay was let in. The state's holding of "spontaneous" did not preclude federal examination because of the confrontation right, and the justification was wanting given the hours later that the statement was made, and the circumstances. A nice decision in the AEDPA context.

US v. Figueroa-Ocamp, No. 05-50777 (7-24-07). A bittersweet victory. The defendant was facing a 1326 charge with a prior state simple possession conviction. The 9th had previously held this was an aggravated felony and so the defendant faced a +8 adjustment. While the defendant fought this on appeal, the Supremes came down with Lopez v. Gonzeles, 127 S, Ct 625 (2006) with the holding that simple possession is not an aggravated felony because it is a misdemeanor under federal drug laws. The 9th applies Lopez here, and holds that the defendant should not have received the adjustment for an aggravated felony. The problem is that the defendant had already served his sentence. The government moved to dismiss for mootness, but the 9th reasoned that the court might reduce the SR term, and that a corrected sentence was needed for any future considerations or use. The 9th therefore vacated and remanded for resentencing.

Congratulations to Jodi Thorp of the Federal Defenders of San Diego.

US v. Castillo, No. 05-30401 (7-25-07)(en banc). In an important jurisdictional decision, the 9th (Bybee writing for the en banc panel) holds that "a valid guilty plea does not deprive the court of jurisdiction...." The 9th's prior precedents had two different views: an appeal waiver divested jurisdiction, or the appeal waiver was procedural, and did not divest of jurisdiction. The defendant here pled guilty to be a felon in possession. He entered into a plea, where he retained the right to appeal if the sentence was higher than 27 months. It was. His appeal however did not raise the sentence, but only went to the guilty plea, and the merits of the search and preindictment delay. The government responded on the merits, and did not raise the waiver. The first panel dismissed for lack of jurisdiction with a dissent. In the en banc opinion, the 9th reviewed the jurisdictional grant of power to courts from the Constitution and Congress, and whether a plea's terms could infringe upon it. The rules of criminal and appellate procedure set the considerations and order of process, but does not infringe on the power to hear appeals. Procedural defects can be waived; jurisdictional grants cannot be. The 9th reasoned that the court here did have jurisdiction, and that the preclusive effects of a plea waiver concerns the posture, nature of plea, and the circumstances were to be considered by the court, but it had jurisdiction to consider them. In so ruling, the 9th aligned itself with the four other circuits that have considered the issue and found jurisdiction. A lone dissent from Callahan argues that precise issue is whether there's jurisdiction over pre-plea constitutional claims in light of an unconditional guilty plea, and she would argue that there was not given the nature of the allegations.

Congratulations to AFPD David Porter of the E.D. Ca (Sacramento) for the win.

Figueroa-Ocampo: the death knell for Ibarra-Galindo

For years, Federal Defenders have been railing against Ibarra-Galindo, the split Ninth Circuit decision that treated simple drug possession as an aggravated felony. We celebrated when, in the context of civil immigration proceedings, the Supreme Court in Lopez held that simple possession did not constitute an aggravated felony. As blogged here, the reasoning of Lopez resolved the question of statutory interpretation in the criminal as well as the administrative context.

In Figueroa-Ocampo, Judge Pregerson authored the opinion finally laying Ibarra-Galindo to rest. The court revisits Judge Canby’s impassioned dissent in the earlier case – “common sense rebels at the thought of classifying bare possession of a tiny amount of narcotics as a drug trafficking crime” – and the adherence to Ibarra-Galindo in the criminal context, even after the Ninth Circuit rejected that interpretation in civil immigration proceedings. Then, based on Lopez, the court holds that “it is beyond dispute that Lopez applies in both criminal sentencing and immigration matters,” overruling Ibarra-Galindo.

The court then addressed the issue of mootness, given that the defendant had already served the unlawful term of imprisonment and begun supervised release. Because the term of supervised release can be modified based on the sentencing error, the court held that the case was not moot.

Congratulations to Jodi Denise Thorp and the San Diego FPD for bringing an era of bad law to an end.

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

Case o' The Week: "Going Rambo in the Ninth," Jimison and 2K2.1(b)(5)

Who doesn't think about "going Rambo," occasionally? Judge Kozinski acknowledges the urge, in a very good opinion limiting a steep and frequent specific offense adjustment in the "gun" guideline, USSG Section 2K2.1(b)(5). United States v. Jimison, __ F.3d __, Slip. Op. 8519 (9th Cir. July 16, 2007), decision available here.

Players: Nice win by AFPD David Merchant.

Facts: Jesse Jimison beat up a girlfriend, got sick from drugs, passed out in an unlocked ranch house, woke up, stole guns, and ended up at a friend’s place. Slip Op. at 8522. He cried, said he’d thought he had killed the girl, that he was going to “go Rambo,” then called the ranch house owner and apologized for stealing the guns and promised to return them. Id. Jimison locked the guns in the trunk of his girlfriend’s car and took off in his friend’s car. Id. He pled guilty to felony possession of guns, and caught an enhancement for having the stolen guns “with the intent of fighting it out with law enforcement if he were caught.” Id. The specific guideline provision at issue gives a four-level bump if the defendant possessed a gun “with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” Id. at 8253.

Issue(s): “We consider when a defendant can be subject to a sentencing enhancement under U.S.S.G. § 2K2.1(b)(5) (2005) [now § 2K2.1(b)(6)] for possessing a firearm in connection with an offense that he never commits.” Id. at 8522. “There is no dispute that shooting at police is a felony offense – the issue is whether there was sufficient evidence about Jimison’s intent to justify imposing this enhancement.” Id. at 8523.

Held: “We have never considered what constitutes proof that a defendant had ‘knowledge, intent, or reason to believe’ that he would, at some time in the future, commit ‘another felony offense.’ We hold that while the defendant need not actually commit the crime, see United States v. Dodge, 61 F.3d 142, 146 (2d Cir. 1995), the government must produce sufficient evidence that he intended to ‘use[ ] or possess[ ]’ firearms ‘in connection with’ a specifically contemplated felony. The plan to commit the felony need not be fully developed. Thus if a defendant acquires a gun intending to use it in a bank robbery, he need not have cased the location or even identified a specific bank that he plans to rob. But he must have formed a firm intent to use the gun for a felonious purpose.” Id. at 8523. “Under these circumstances, there was insufficient evidence to conclude that Jimison formed a firm intent to have a shootout with law enforcement.” Id. at 8526.

Of Note: How does the Ninth Circuit review the application of the Guidelines to the facts? Who knows? Judge Kozinski identifies the intracircuit split, with Kimbrew calling for “abuse of discretion,” Williamson demanding de novo review, and Staten recognizing the conflict. See id. at 8526 n.6.

Conspicuously missing from this list is Rita, the Supreme Court decision that “clarified” that appellate review is for abuse of discretion – or reasonableness – or maybe for procedural problems alone? While Judge Kozinski neatly sidesteps this mess in footnote six, who are we to complain in light of this defense win?

How to Use: This useful decision gives a number of rules for application of this frequent Section 2K2.1 (“gun”) enhancement. First, the government must show more than that the defendant stole the gun to get the enhancement. Id. at 8523-24. Second, Judge Kozinski is skeptical that the vague “Rambo” threats of a scared and confused defendant rose to the level of certainty sufficient to trigger the enhancement. Id. at 8525. The new rule is that this enhancement should not apply when the defendant simply makes a statement about the gun “out of frustration, fear, or grandstanding.” Id.

For Further Reading: Not mentioned in the opinion, but on PACER, is the fact that Jimison got 120 months on this case. Awfully steep for what is essentially a Section 922(g)(1) [felon-in-possession] case – especially when Jimison pleaded guilty!

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

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Hemmerle v. Schriro, No. 06-16601 (7-19-07). On the toll road to justice, just past the AEDPA turn-off, the 9th finds a gap of 33 days that halts the petition. Petitioner was convicted of 2nd degree murder in Arizona in November 1997 and begann a round of appeals and state PCRs. The first PCR alleged IAC with no supporting facts; the box was "checked." That was dismissed without action but a few weeks later, a second PCR was filed that alleged more facts (i.e. the lawyer supposedly told the petitioner to lie and failed to investigate mental illness). That eventually was denied, and the state courts refused to grant review. When petitioner came to federal court, he was found to be 33 days late on his AEDPA and the court dismissed. The 9th (O'Scannlain with Hall and Ikuta) affirmed. The fist state PCR failed to allege specififc facts, and so the second state PCR was not a bridge that permitted tolling, but was a second PCR, and thus time did not toll. Moreover, the AEDPA clock starts ticking with denial of review rather than mandate, and so that time counted. Petitioner was out of time.

US v. Jimison, No. 06-30417 (7-16-07). This is a significant opinion in interpretation of the guidelines. The 9th (Kozinski joined by Fisher and Guilford) hold that for a prohibited possessor to get a two-level bump up for having a weapon and committing a felony under 2K2.1(b)(5), the defendant need not actually commit a crime, but must have a "firm intent to use the gun for felonious purposes." The evidence in this was that the defendant made an offhand comment that he got the gun "to go Rambo." The statement was made to an acquaintance. The evidence did not support this further. The 9th vacated the sentence and remanded.

Congratulations to AFPD David Merchant of the Montana (Billings) office.

US v. Jenkins, No. 06-50049 (7-17-07). In an unusual vindictive prosecution case, the 9th affirms the district court's dismissal of the charge. The defendant had been stopped crossing the border twice previously with illegal aliens. Each time, she basically confessed, stating that she was paid to drive the car over. Each time, the government did not prosecute. This time, she was stopped as a passenger in a car with marijuana. Her defense? She thought she was smuggling illegal aliens. She testified to that at trial. As the jury was deliberating, the government filed alien smuggling charges on her two previous arrests. The district court felt this was done to punish her for testifying, as was her constitutional right. The 9th agreed with the district court's dismissal, using a de novo review for mixed constitutional rights and factual findings. The 9th (Canby and Thomas) held that the government had all the evidence it really needed prior to the defendant's testimony, and that the timing of the charges -- after she testified and while the jury was deliberating -- was properly construed as being vindictive. The three strikes and still out of court. In dissent, Conlon argues against the vindictiveness finding, stressing that the defendant's in-court admissions made the government's case a slam dunk and so the government could now file.

US v. Diaz-Luevano, No. 05-50129 (7-18-07). The 9th, per curiam, clarifies that its decision that reinstatement of removal is separate from removal (Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc)) does not overrule the decision that for guidelines enhancement purposes (US v. Luna-Madellega, 315 F.3d 1224 (9th Cir. 2005), it is prior physical removal that is the trigger for enhancement. The case here involved a defendant who had been removed, came back and committed a violent offense, and then had his removal reinstated. When he returned, and was caught yet again, the prior violent offense counts for the +16 under 2L1.2.

US v. Diaz-Castenada, No. 06-30047 (7-18-07). Is the running of a license plate a search? The 9th had never dealt with this issue, but joins all the other circuits in holding that it is not. Here, the defendant was driving and a police officer ran his license plate, and found that he had a suspended license. The defendant was pulled over, and eventually was arrested for various charges. The 9th(Fisher) unsurprinsingly reasons that a license plate is in public view, has information attached to it, and the defendant should not have an expectation of privacy in the public records.

Rita And Reasonable Doubt

In Rita, the Supreme Court addressed the standard of review for sentencing appeals and approved a presumption of reasonableness for Guidelines sentences, with the caveat that the presumption applied only on appeal. Rita leaves the most important post-Booker sentencing question unanswered: whether controverted facts that aggravate the Guidelines range must be proved to the judge beyond a reasonable doubt. The Rita opinion provides additional arguments that, whether under the Doctrine of Constitutional Avoidance or directly under the Fifth Amendment, the reasonable doubt standard should apply, especially in light of the fractured Third Circuit en banc opinion in Grier, where three judges found that the reasonable doubt standard should apply.

One of the most interesting aspects of Rita was the seemingly conscious limitation of the reasoning to Booker’s Sixth Amendment holding. This limitation leaves completely open the critical distinction between Sixth and Fifth Amendment jurisprudence: the reasonable doubt standard is simply more important than the identity of the finder of fact. We know this from retroactivity doctrine, which requires retroactive application of new constitutional rules related to reasonable doubt but not to jury trial; from the sanctity of the form of the rights, which prevents dilution of the reasonable doubt standard, while permitting non-unanimous and fewer than twelve member juries; and the language used in characterizing the rights, which finds juries basic to Anglo-American jurisprudence, while the reasonable doubt standard is of “transcending value.” The key throughout is our society’s dedication to a very high standard of reliability before a fact can justify additional punishment.

The reasonable doubt standard is before the Supreme Court in petitions for certiorari to the Third Circuit in Grier and the Ninth Circuit in Pike (cert petitions linked here and here), where the arguments are articulated in detail. Rita gives us some reason for optimism that the Court will accept certiorari and ultimately bring us closer to a Unified Theory of Post-Booker Sentencing, which requires that all controverted facts warranting greater punishment be established beyond a reasonable doubt.

The first contribution from Rita stems from Judge Ambro’s anticipation in Grier of the “significant danger” of recreating an unconstitutional sentencing scheme by adopting a presumption of reasonableness. Grier, 475 F.3d at 588 n.37 (concurring). To demonstrate the constitutional dangers – to engage in a bit of metablogging – Judge Ambro cited to the Federal Sentencing Reporter article based on this blog, which points out the higher level of Fifth Amendment protection, as well as the firm line the Court has traditionally drawn in protecting against presumptions that dilute the reasonable doubt standard’s protection. Although the Rita Court found that judge-made findings permitted a presumption of reasonableness on appeal, the Court did not address the question whether the reliability issues underlying the reasonable doubt standard would create constitutional issues if the presumption was based on controverted facts established only by a preponderance of the evidence.

Second, the fragmented Rita opinions reflect serious residual concern regarding the real world effects of Booker. There is not a Federal Defender who does not know that aggravating Guidelines factors result in a greater punishments. The concurring opinion of Justices Scalia and Thomas, while recognizing the stare decisis effect of Booker, also sees the unresolved Sixth Amendment problems with the Guideline scheme, as did Justice Souter’s dissent’s reference to the “gravitational pull” of the Guidelines range. My favorite sentence, when translated to the Fifth Amendment reasonable doubt context, demonstrates a real understanding that we are not debating academic points but deciding how long people are incarcerated for facts not proved beyond a reasonable doubt: “Under the scheme promulgated today, some sentences reversed as excessive will be legally authorized in later cases only because additional judge-found facts are present; and as Justice Alito argued in Cunningham, some lengthy sentences will be affirmed (i.e., held lawful) only because of the presence of aggravating facts, not found by the jury, that distinguish the case from the mine-run.” For those differences to meet Fifth Amendment standards, controverted facts must be established beyond a reasonable doubt.

In Summerlin, the Supreme Court rejected retroactive application of Ring, which recognized the Sixth Amendment right to a jury determination of aggravating factors resulting in the death penalty. The reasonable doubt standard provided the key to the Court’s reasoning: because the facts were established to the judge beyond a reasonable doubt, they were sufficiently reliable that the finality of the decision need not be disturbed. In contrast, every day federal judges impose harsh sentences aggravated by months and years based on facts proved by only a preponderance. A majority of the Supreme Court should find the contrast significant.

Third, the Rita majority, with no mention of the standard of review, reassured itself that the presumption of reasonableness was based on “the thorough adversarial testing contemplated by federal sentencing procedure.” From the time Blakely came down and since Booker, the role of the reasonable doubt standard has been hotly debated between District Court judges who recognize the practical importance of controverted facts that affect the Guidelines, which should require a resolution of the disputed facts beyond a reasonable doubt, and Courts of Appeals that persist in approving of controverted Guideline ranges proved only by a preponderance based on pre-Blakely circuit authority. To assure the reliability of facts necessary to the period of incarceration, the most important feature of the adversarial process at sentencing would be the application of the reasonable doubt standard to controverted sentencing facts.

We need to be consistent and persistent in protecting our clients against sentence aggravation based on a civil standard of proof rather than the reasonable doubt guaranteed by the Fifth Amendment. As briefed in the linked petitions in Grier and Pike, the Court can reach the desired result either by the Doctrine of Constitutional Avoidance or directly under the Fifth Amendment. The Grier majority opinion is especially flawed, as briefed on pages 11-15 of the Pike petition. While making our records and preserving our issues, we should use the Rita opinion’s presumption of reasonableness to emphasize the appropriateness of the traditional constitutional standard of proof of facts that increase the available punishment: beyond a reasonable doubt.

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

Case o' The Week: We'll always have Paris (and, hopefully, this great Brady decision -- Jernigan)

Writing for a whopping 13-2 en banc Court, Judge Betty Fletcher delivers another memorable decision protecting a defendant's Brady rights. United States v. Jernigan, __ F.3d __, No. 05-10086, 2007 WL 1965112 (9th Cir. July 9, 2007), en banc. (Decision available here). This en banc case is well worth a read for its Brady lessons, and also for the Ninth Circuit's first published reference to Paris Hilton (in a -- memorable -- dissent by Judge Bea).

Players: Judge B. Fletcher authors, joined by Judges Kozinski, Rymer, Bybee and Ikuta (and eight others). Only Judges Bea and O’Scannlain dissent.

Facts: Rachel Jernigan, a short Latina woman with acne, was tried and convicted for robbing a Bank of America. 2007 WL 1965112, *2 . The surveillance video was lousy; the conviction was primarily on eyewitness testimony. Id. While Jernigan was in custody, another short Latina woman with acne robbed the same BofA, and was caught with a tracking device tucked into the money. Id. This second short Latina woman also robbed several other banks near the BofA, while Jernigan was in custody and before her trial. Id. at *2. The FBI agent knew of this second Latina, but never bothered to tell the AUSA. Id. at *8. After conviction, Jernigan raised the government’s Brady violation and moved for a new trial. Id. at *2. The district court denied these motions; a three-judge panel affirmed, and the case went en banc.

Issue(s): “Jernigan asserted that the government had failed to meet its Brady obligations by not disclosing the existence of a phenotypically similar bank robber who had been robbing banks in the same area after Jernigan’s incarceration.” Id.

Held: “As we view the withheld evidence in the context of the entire record, it is apparent to us that the evidence was material and that Jernigan was prejudiced by its suppression. Withholding knowledge of a second suspect conflicts with the Supreme Court's directive that ‘the criminal trial, as distinct from the prosecutor's private deliberations, [be preserved] as the chosen forum for ascertaining the truth about criminal accusations.’ Kyles, 514 U.S. at 440. By suppressing this evidence, the prosecution arrogated to itself a central function belonging to the criminal jury and pursued its role as adversary to the exclusion of its role as architect of a just trial. Cf. Brady, 373 U.S. at 87-88 & n. 2. The government has deprived Jernigan of a fair trial and placed a possibly innocent woman behind bars. Because the evidence withheld by the government was material, we reverse the decision of the panel and district court, and remand to the district court for further proceedings consistent with our opinion.” Id. at *6.

Of Note: Judge Fletcher drops a notable footnote: Jernigan had passed (with flying colors) a polygraph confirming her innocence (though we’re assured the en banc court didn’t consider that fact when granting relief). Id. at *5 n.9. Not to be outdone, dissenting Judge Bea counters in a footnote that the district court judge in the case was appointed in 1980 (presumably for the argument that an experienced judge deserves more deference). Id. at *6 n.3 (Bea, J., dissenting). Law is fought in the text; equities, battled in footnotes.

Judge Bea’s dissent is – colorful. He provides a detailed exegesis on smoked and smelly fish that poachers would trail on the ground, to explain the term, “red herring.” Id. at *7. He likens the language of (tremendously respected) Judge Fletcher to the “last retort of the knave caught red-handed.” Id. Finally, he creates the Ninth Circuit’s first published reference to Paris Hilton. Id. at *10 n.12.

((Thankfully) almost lost in this rejoinder is a potentially dangerous point – Judge Bea’s view that the Ninth affords no deference to the district court’s Brady determination, while other circuits employ the abuse of discretion standard to the district court’s factual findings.) Id. at *11.

How to Use: This strong en banc Brady analysis provides much fuel for the discovery fire. (Not many en banc decisions lately that garner thirteen votes -- district courts take note). The Ninth emphasizes that Brady obligations are triggered even if the agent alone – and not the AUSA – has the information. Id. at *8 n.10. Judge Fletcher also correctly undertakes the Brady analysis in the context of the entire record (not just the non-disclosed fact in isolation). Id. at *3. Finally, the decision has wonderful language undercutting eyewitness identification, including cross-racial eyewitness identification. Id. at *3.

For Further Reading: As of last week, no word yet of a cert. petition (knock wood). See article here.

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

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US v. Grace, No. 06-30192 (7-12-07). This is an interlocutory appeal from the court's preclusion of government witnesses. The prosecution of the Grace mining company and defendants grew complex. The government's witness list kept growing, and reached several hundred. The district court grew frustrated with the government's ever-expanding witness and evidence lists, and set a deadline for disclosure of a witness list. The government missed the deadline, and when witnesses -- expert and nonexpert -- were precluded, this interlocutory appeal followed. The 9th (Fisher joined by Wallace and Wardlaw) first had to decide if this met the requirement of 3731 that there be a substantial issue for the government. The 9th focused on the evidence, and decided that the government had met the showing of materiality by identifying witnesses and evidence. Turning to the merits, the 9th held that the preclusion of nonexpert witnesses under Rule 16 was error. Rule 16 does not require disclosure, and the 9th "explicitly held that a district court that orders the Government and the defendant to exchange witness lists and summaries of anticipated witness testimony in advance of trial has exceeded its authority under Rule 16 of the Federal Rules of Criminal Procedure and has committed error." Hicks, 103 F.3d at 841. Note that the 9th made this a bright line: courts cannot force disclosure and it is error if it does. With experts, different rules apply, but preclusion is a last extreme sanction, and the court here did not find wilfulness on the part of the prosecutions. There are lesser sanctions, if any. Wallace concurred on the issue of interlocutory to state that requirement of "substantial materiality" was nowhere in the statute, and the 9th is out of step with this requirement. Wallace would take this en banc.

US v. Abbouchi, No. 05-50962 (7-13-07). The 9th (Pregerson joined by Gould and Clifton) hold that regional sorting hubs for packages being shipped abroad by such carriers as UPS or Fedex are functional equivalents of a border. The defendant here shipped a package to Lebanon, and when it was randomly searched, was found to have false identifications. The defendant argued that the hubs were either a step away from the border and that reasonable suspicion was needed. The 9th reasons that such "jumping off" points are border equivalents, and affirms the convictions. The sentence is vacated in part due to conditions imposed on SR without basis (domestic violence counseling merely because the marriage had "strains.").

Tanner v. McDaniel, No. 06-15405 (7-13-07). The 9th (Tashima joined by Noonan and Callahan) affirm the denial of a writ alleging IAC on failure to consult regarding an appeal. The 9th does rule that Roe v. Flores-Ortega, 528 US 470 (2000), which requires consultation by an attorney with client regarding appeal, does not establish a new constitutional rule. However, on the merits here, there was no IAC given the issues of the voluntary plea, constitutional precedent, and the facts of the case.

US v. Horvath, No. 06-30447 (7-10-07)

Can lying in a PSR result in a false statement charge under 18 USC 1001? The 9th says "no." This case involved a defendant, being sentenced on a prohibited possessor charge, telling the probation officer writing the PSR that he had served in the Marine Corps and received an honorable discharge. The PSR included this information without verification, and the court questioned defendant on it. The court believed it to be true, and used it as one of the mitigators to place the defendant on probation. Four years later, the government determined that the defendant had not served in the Marines, and subsequently indicted him for a false statement under 1001(a)(2). The false statement statute, however, contains an exception for statements made by a party in a judicial proceeding, submitted to a judge, and made in the proceeding. The case here turns on the second, and whether a probation officer is a "judge." The 9th (Graber joined by Pregerson) hold that the probation officer, when preparing a PSR, is acting at the direction of the judge. The PSR is required by Fed. R. Crim. P. 32, and the PSR requires factual information to be gathered by the probation officer. The information included in the was factual, and was to be given to the court, and the probation officer " exercised no discretion." The 9th stresses that the 1001 exception only applies if the law requires the probation officer to include the statement and submit the PSR to the court. The 9th looks to McNeil, the case concerning financial affidavits. Dissenting, Judge Rymer acknowledges that this is a "tough case," but would read the statute literally, that statements made to the probation officer are not made to the judge.

US v. Shea, No. 06-10450 (7-11-07)
Defendant was convicted of intentionally causing damage to a protected computer in violation of 18 USC 1030(a)(5)(A)(i). The defendant was a disgruntled former employee (performance issues and a denial of a "work at home" request). The business was a financial company. After the defendant was fired, a computer program "time bomb" went off that took the accounts and inserted random numbers in place of actual figures. The company restored most data but at great cost, and the FBI went investigating, ending up at the doorstep of the defendant. His name was one of the user names on the code. He gave statements about being stressed and having medical problems. Still, a 7-count indictment was handed down, later consolidated to one count. At trial, the government presented circumstantial evidence that the password and user name came from defendant's computer, he had access, and opportunity. On appeal, alleging insufficient evidence, the 9th (Hall joined by O'Scannlain and Ikuta) held that the jury could make the inference. The 9th also found no variance between the date code was compiled (Jan. 7th) and the trigger date of Jan. 29th. The latter date was the only date listed in the computer, but the defendant's "fingerprints" were not to be found. The 9th reasoned that the date was not important as the act was damaging the computer by the code, which could run at a set time. The defendant was not prejudiced because he knew the various counts and theories. The 9th also brushed aside the defendant's request for new counsel mid-trial as untimely and for reasons that related to tactical decisions within counsel's discretion.

US v. Jernigan, No. 05-10086 (7-9-07) (en banc). The 9th, en banc, reaffirms the government's duty to disclose Brady and grants a motion for new trial. The female defendant was convicted of robbing three banks. While in custody, awaiting trial, two more banks were robbed by a woman that bore a striking resemblance to the defendant: both were Hispanic, five feet tall, with acne or pock-marked face. Although the government knew that other banks had been robbed by this person bearing an uncanny resemblance, the government never disclosed to defense counsel. Counsel argued at trial that it was a misidentification, hammering on inconsistencies with the tellers' descriptions. The jury nonetheless convicted. In prison, the defendant learned of this other robber, and moved for a new trial. The district court denied the request (EHC), stating that the two may have resembled one another but their identities were different. The 9th (B. Fletcher) reversed and granted a new trial, stressing that the government's information was Brady, and should have been disclosed. The evidence met the Brady requirements of being favorable to the defendant, was suppressed by the government (although not by the US Atty see n. 5), and must be material. Bingo to all three. The opinion details the inconsistencies with the identifications, the hesitations, and the similar modes of robbing the banks. There was other exculpatory evidence, too. This led to the reversal. Dissenting, Bea (joined by O'Scannlain) would affirm on the factual findings by the district court that the women did not look alike. The dissent's approach is simply to review the lower decision, not to do justice.

This was tried as a FPD case from Arizona (Phoenix, so we have an interest).

Crater v. Galaza, No. 05-17027 (7-9-07). The 9th (O'Scannlain joined by Brunetti and Trott) reject broad-based constitutional challenge to AEDPA on the basis that it effectively suspends the writ of habeas corpus. The 9th finds that a curtailment does not abrogate the writ. The 9th unsurprisingly joins the other circuits.

US v. Juvenile male, No. 06-30587 (7-5-07). The 9th, per curiam, vacates the district court's decision to transfer a juvenile defendant because of clearly erroneous factual determinations. This is the second time (the first remand was because the court felt it had to consider that the defendant was guilty; such a conclusion is discretionary). In this second proceeding, the defendant again faces a charge of 2nd degree murder. He was over 15 at the time, it was a violent felony, but the transfer revolves around whether the transfer would be in the interests of justice. The court made a factual ruling, in transferring, that the defendant had never been a victim of domestic violence which was completely wrong. Moreover, the court made some judicial observations regarding other juveniles and other programs in BOP that were outside the record and inappropriate. The case gets remanded yet again.

Congratulations to AFPD David Ness of the Federal Defenders of Montana.

US v. Ensign, No. 06-10447 (7-5-07). The 9th affirms the district court's denial of an out-of-district lawyer to appear pro hac vice in this failure to file case. The counsel had been appointed as co-CJA counsel under a catch-all provision given the complexity of the case, but certain Bar improprieties were brought to the court's attention by the government. The court held a sealed hearing as to the proceedings taking place in the State Bar of Arkansas. The court then relieved counsel of his co- CJA appointment. He then sought appointment pro hac vice. The court denied this request, citing the possibility of Bar discipline in Arkansas and other reasons. The 9th affirmed the denial as not being an abuse of discretion. Moreover, the Sixth Amendment did not compel appointment because the defendant was represented by court appointed counsel, and she was not entitled to counsel of her choice when there is appointed counsel irrespective of the questions raised by out of district counsel.

US v. Forrester, No. 05-50410 (7-6-07). A pretty simple rule can be derived from this Farretta case: self-representation must knowingly and intelligently waive counsel, which includes being informed of the charges, sentence, and the dangers of self-representation. The district court missed two out of three. The court failed to inform the defendant of the "nature of the charge" (conspiracy) and misstated the sentence he was facing. The 9th (Fisher joined by Clifton and Smith) easily dismissed the government's harmless error argument, and vacated and reversed. As for the co-defendant, the 9th affirmed his conviction, holding that there was no expectation of privacy or searches in the goverment's computer surveillance of the IP addresses. Content was not searched; just addresses where the messages were sent.

US v. Ruiz-Chairez, No. 05-10226 (7-6-07). The 9th (Schroeder joined by Trott and Moskowitz) held that 2L1.2 (illegal reentry sentence) does not violate the equal protection clause. The Congress can act to enforce immigration laws; and the increasing of a sentence for prior offenses has a rational basis. The 9th noted that other offenses are punished less severely but writes that the argument misses the point, because this heightened sentence is not irrational.

Case o' The Week: Finding Forrester, Fourth Doesn't Protect IP Addresses

Consider as you read this blog that the fact that you visited this IP address isn't protected by the Fourth Amendment -- so says the Ninth in a disappointing cyber law decision. United States v. Forrester, __ F.3d __, Slip. Op. 8069 (9th Cir. July 6, 2007), decision available here. Forrester is another illustration of how bad analogies between old and new technologies are creating a new line of bad Fourth Amendment law.

Players: Judge Fisher authors, bull-dog Ben Coleman and defense counsel Mike Crowley behind yet another creative defense challenge.

Facts: During an Ecstasy investigation, the government received court permission to install a “pen register analogue” on co-defendant Alba’s computer. Slip Op. at 8075. The gadget (or software) captured the “to/from addresses of Alba’s e-mail messages, the IP addresses of the websites that Alba visited and the total volume of information sent to or from his account.” Id. at 8075. This information was used in later search warrant applications. Id. at 8088-89. After a trial, Alba and Forrester were convicted and both got 30 years custody. Id. at 8076.

Issue(s): “Alba contends that the government’s surveillance of his e-mail and Internet activity violated the Fourth Amendment and fell outside the scope of the then-applicable federal pen register statute.” Id. at 8081.

Held: “We hold that the surveillance did not constitute a Fourth Amendment search and thus was not unconstitutional. We also hold that whether or not the computer surveillance was then covered by the then-applicable pen register statute – an issue that we do not decide – Alba is not entitled to the suppression of any evidence (let alone reversals of his convictions) as a consequence.” Id. at 8082.

Of Note: The Ninth is slowly building a body of computer Fourth Amendment law. Ironically (for the Circuit home of Silicon Valley) much of this law is wrong. Here, Judge Fisher analogizes the capture of e-mail addresses, IP addresses of websites visited, and the volume of information transmitted, to old pen register searches (which do not implicate the Fourth because pen registers don’t reveal content). Id. at 8082, 8084. This analogy doesn’t work. For example, call my office from a phone and a pen register would catch you dialing my number – but the feds would have no clue about the content of our discussion. Visit IP address 206.252.132.24, however, and the content viewed in your visit is obvious – any trip to HighTimes.com is a drug trip (pun intended). If you download lots of pages from this IP address (by clinking links), then you’re really interested in 420.

Another way to think about IP addresses is to consider their evidentiary ramifications. It’s a safe bet that the Ninth would allow the content of a web page detected from an IP address as support for probable cause for a search warrant. This inevitable use of IP addresses illustrates that the technology captures far more than mere phone register data. No matter how you slice it, IP addresses aren’t just phone numbers – they are content rich, and are a far cry from simple pen register data. Stanford Cyberlaw Clinic, wake up – here’s a great case for an en banc amicus effort.

How to Use: Thankfully, Forrester doesn’t decide several other digital Fourth abominations: the capture of URL pages, id. at 8084 n.6, or imaging and keystroke captures, id. at 8086. If your case involves computer or internet seizures, hire a consultant-geek. This is an area of evolving (and erroneous) Fourth Amendment law, and simply relying on our understandings of old technologies perpetuates errors the government exploits, and the Ninth adopts.

For Further Reading: This decision quickly caught the attention of the press. See SF Chronicle article here. Combine the fact that the Fourth now doesn’t protect IP addresses, with the feds’ new ISP data retention policies, and we can kiss our privacy rights goodbye. See article here. How is a normal citizen supposed to protect their Fourth Amendment privacy rights in an internet age? Forget the constitution – pony up for a proxy server. See Proxify website here.


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


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Guantánamo Update

In October 2004, the District of Columbia District Court appointed 14 Federal Defender offices to represent about 50 aliens detained as enemy combatants at the Naval Base in Guantánamo Bay, Cuba. Since that time, attorneys, investigators, and legal assistants have received security clearances and met with clients in a wide range of different factual and legal situations. Teams have filed numerous legal pleadings and ranged the world obtaining corroboration of the factual innocence of many clients. With the dramatic grant of certiorari in Boumediene after an earlier denial with dissents, this is a good time to review the history of Boumediene, and to reassess where we are on the legal conflicts, the fate of our individual clients, and the larger context of our litigation.

Initial Skirmishes Regarding Access And Rendition

Our clients petitioned the courts in the immediate wake of Rasul, the June 2004 Supreme Court case establishing jurisdiction to review Guantánamo detention under the habeas corpus statute. Given the time from filing to appointment, the initial stage of litigation involved pleadings to accelerate security clearances and visitation and to protect our clients from rendition to countries where they might face violations of the Convention Against Torture. The scope of our initial efforts was limited by stays already in place pending litigation in the D.C. Court of Appeals to resolve conflicting District Court decisions regarding the right, or lack thereof, of aliens held in Guantánamo.

On the eve of hearings on access, the government granted the requisite clearances and approved our first visits for March 2006, almost a year after Rasul. On the anti-rendition motions, most District Courts granted 30-day notice requirements before a client could be transferred to give us the opportunity to object. The government appealed. In one case, Judge Leon denied an anti-rendition motion without explanation, from which the detainee appealed.

The access questions as well as rendition were debated in the context of stays from appeals in two sets of cases. Detainees picked up in Algeria sought review of Judge Leon’s decision denying any constitutional rights subject to habeas review; the government appealed the decision of Judge Green finding jurisdiction to review the detention of a group of Uighur detainees. Despite the statutory norm of a return within three days of filing, and the historical norm of habeas corpus as a rapid and decisive equitable remedy for unlawful executive detention, the stays in place from the 2005 pro se filings still freeze out the detainees from obtaining a hearing, regardless of the evidence of complete innocence and lack of initial Defense Department jurisdiction.

The Detainee Treatment Act Of 2005 And Hamdan

In December 2005, Congress passed the Detainee Treatment Act, which purported to strip jurisdiction from the federal courts over aliens detained at Guantánamo. Because the statute appeared to apply only prospectively, we asserted that the DTA did not apply to our clients and that the habeas courts should lift the stays to reach the merits. In addition to constituting an unconstitutional suspension of the writ of habeas corpus, the legislation constituted a classic Bill of Attainder and violated the equal protection and due process clauses of the Constitution.

Rather than reach the issues in the District Courts, the stays remained in effect while the D.C. Court of Appeals requested supplemental briefing in the Boumediene and Al-Odah cases. The Federal Defenders filed an amicus curiae brief that argued against retroactive application of the DTA and in favor of construction of the statute to avoid the serious constitutional issues surrounding legislation directed at curtailing existing rights for a small and unpopular group, largely defined by ethnicity and religion (available here).

While the D.C. Circuit pondered the supplemental briefing, the Supreme Court accepted certiorari in the Hamdan case, which involved the war crimes trial of Osama Bin Ladin’s driver. On June 29, 2006, the Supreme Court held in Hamdan that, first, the DTA did not retrospectively deny the District Court’s jurisdiction over the detainee’s habeas corpus petition; and, second, that the proceedings were unlawful because the military commissions failed to provide adequate protections, including those required by the laws of war and the Third Geneva Convention.

The Filter Team Litigation

As soon as Hamdan came down, the construction of the DTA appeared to open the way for immediate action by the District Courts because the DTA, if prospective only for commission defendants, was also prospective only for the mass of detainees not charged with war crimes. But the District Courts maintained the stays awaiting word from the Boumediene and Al-Odah cases in the Circuit Court. And the government, in the immediate aftermath of Hamdan, initiated litigation far from the merits.

In June 2006, three detainees died in custody, resulting in a clamp down on prisoners and even harsher confinement. A month later, the government revealed that investigators had seized and reviewed attorney-client documents as part of their investigation into the deaths. On July 7, 2006, eight days after Hamdan, the government belatedly sought approval for the violation of attorney-client privilege by requesting that the District Courts approve creation of “filter teams” to review the seized documents for evidence related to the deaths and to violations of the protective order governing attorney-client communications.

Judge Leon heard the first group of motions. After a prolonged hearing on the legal and practical difficulties of the government’s proposal, on August 28, 2006, he issued an opinion denying the government’s motions (available here). He found that his discretion should not be exercised in such a manner and that the government would review attorney-client material at its legal peril. Then, Judge Robertson granted the motions before him, approving of the procedure for the investigation (available here). Other judges have not ruled on the question to this date. The conflicting decisions have not been resolved, given that the government did not appeal its loss from Judge Leon, and the detainees before Judge Robertson filed no appeal.

Investigation And Summary Judgment Motions

After the initial meetings with clients, we began the international investigation necessary to corroborate our clients’ claims of factual innocence. In three cases, we were able to gather precise and compelling evidence that our clients’ exculpatory testimony before the Combatant Status Review Tribunals was true. For example, in Nazar Gul’s case, we found the employer, the taxi driver, and the pharmacist in Pakistan and Afghanistan who corroborated that our client was an innocent returned refugee apparently picked up because his name resembled someone else. Adel Hamad’s co-workers in a charitable hospital in Afghanistan corroborated that he is simply a Sudanese hospital administrator with no links to terror or extremism, whose detention the dissenting major in his CSRT called “unconscionable.” And Abdul Rahim Al Ginco’s account of being a Taliban torture victim and political prisoner for almost two years before his liberation was confirmed not only by family and freed detainees from the same political prison, but from contemporaneous news accounts that included his efforts to approach the American authorities regarding human rights violations in the Taliban prison.

We filed motions to lift the stay and for summary judgment based on the international investigation corroborating the factual innocence of the three clients in September 2006. Shortly thereafter, Congress passed the Military Commissions Act of 2006, which explicitly sought to retroactively strip jurisdiction under the habeas statute and expanded to this Country’s soil the aliens subjected to the jurisdiction stripping. The MCA left only a limited review directly in the D.C. Court of Appeals for persons claiming they are being held in violation of CSRT procedure or that CSRT procedures violate the law and Constitution, to the extent they apply.

Despite uncontroverted evidence of factual innocence and lack of Defense Department jurisdiction, the stays remained in place pending the resolution of MCA issues in the Court of Appeals in Boumediene and Al-Odah. Once again, the Court of Appeals requested supplemental briefing, this time on the effect of the MCA on the pending appeals. The Oregon Federal Defenders submitted another amicus curiae brief, this time aimed at the inadequate non-habeas remedies and human costs of suspension of the Great Writ of Habeas Corpus (here). Meanwhile, the motions in the District Court to lift stays languished, deferring to the pending Court of Appeals litigation rather than addressing the unique and separate issues raised in the summary judgment motions.

Finally we received a ruling from the Court of Appeals – and a bad one. In a two-one split decision, the Court of Appeals held in Boumediene that the MCA applied to strip all jurisdiction from the Courts and that the detainees had no constitutional rights. Dissenting Judge Rogers filed a strong defense of habeas corpus, emphasizing the inadequacy of the DTA remedy to develop facts and law requiring release of wrongfully detained aliens.

Stay-And-Abey And The DTA

The Boumediene and Al-Odah legal team quickly put together a petition for certiorari that was joined by a number of amici favoring speedy and decisive resolution of the issues. On April 2, 2007, the Supreme Court denied certiorari, with two accompanying opinions. In a strong dissent, Justice Souter, joined by Justices Breyer and Ginsburg, adopted the concerns of Judge Rogers, calling for speedy resolution of the issue. Justice Stevens, joined by Justice Kennedy, framed a very careful statement accompanying the denial of certiorari that raised two issues. First and foremost, the Justices stated that the petitioners’ failure to exhaust the DTA remedy left insufficient information regarding its efficacy, so review was not appropriate “at this time.” Second, the Court made clear that any action prejudicial to the habeas petitioners while the issues were being exhausted should prompt immediate remedial action.

The denial of certiorari led to two parallel actions: the government moved to dismiss all appeals and district court habeas cases for lack of jurisdiction; and petitioners began moving under the DTA for immediate release along with motions to expedite, following DTA actions previously filed in Parhat and Bismullah.

The government’s position on dismissal, while aggressive, lacked legal support. Under well-established habeas corpus law, the proper procedure while remedies are exhausted is for the district court to enter a stay-and-abey order, which holds the habeas case in abeyance and maintains the status quo until exhaustion is completed (Rhimes v. Weber). Dismissal for lack of subject matter jurisdiction is only appropriate where the Supreme Court – not a lower court – has finally decided the question, which emphatically had not occurred with the Boumediene denial of certiorari. The D.C. Circuit law and Supreme Court authority also supported interim authority for orders protecting the habeas petitioners rights while matters are being finally resolved, such as the protective orders and the 30-day notice orders. These protections are particularly important because the government in the direct DTA litigation in the Court of Appeals, attempted to impose a new protective order that sharply limited access to clients.

In a group of consolidated cases, the Court of Appeals granted the government’s motion to dismiss its own appeals of 30-day notice orders and denied the motions to dismiss the underlying habeas petitions, remanding the cases to the District Courts to decide in the first instance whether stay-and-abey orders should be entered or the cases should be dismissed. The sole appellant’s appeal was dismissed based on Boumediene, which will likely require further review, especially in light of the grant of certiorari last Friday.

Where From Here?

The deep freeze of the never-ending stay has left meritorious petitions unheard for almost two years. From April 16, 2007, DTA petitions establishing violations of CSRT procedures and actual innocence have been pending before the Court of Appeals. In contrast to the habeas norm requiring a return in not more than 20 days, the cases are, in effect, stayed pending the outcome of arguments in Bismullah and Parhat that do not address dispositive issues, which need no further procedural development, for a ruling on the merits. To the extent Justice Kennedy and Stevens needed to know if the Court of Appeals remedy constituted an adequate substitute for habeas corpus, the answer is a resounding “no.”

The District Courts have also turned a deaf ear to date to requests for expedited consideration – or even a hearing – on lifting the stay and getting to the merits, as illustrated by two examples. Abdul Rahim, whose claims regarding lack of Defense Department jurisdiction and use of the products of Taliban torture are unique, has sought expedited hearing based on the extreme psychological distress from post-traumatic stress disorder and torture syndrome from the brutal torture at the hands of the Taliban, which is aggravated by his treatment for six years at Guantánamo. And Adel Hamad, the Sudanese hospital administrator, simply wants his day in court on the same basis articulated by the major in his case, who found no reasonable basis for considering him an enemy combatant. So far, the stays remain in place and the government has not even been compelled to respond to the claims of innocence.

But it’s not all dismal. Nazar Gul is now back with his family in Afghanistan. The military made use of the innocence investigation, the government determined he could be repatriated but without renouncing its categorization of him as an enemy combatant. A week after we spoke together at Guantánamo, Nazar Gul was home with his mother. We are seeking to maintain his habeas corpus petition based on the obvious collateral consequences of the false label enemy combatant. Interestingly, the MCA does not apply to him because he is no longer at Guantánamo, leaving him in the pure Rasul position based on the jurisdiction at the time of the filing.

Adel Hamad also received notice he can be repatriated. His defense team received assurances in Sudan that repatriation can occur immediately. Nonetheless, our government has yet to transfer him. There are detainees who have been declared free to leave for over a year. And the enemy combatant status has not been reversed, so Adel continues in the limbo of indefinite detention, far from his loving and suffering family, who you can see in this short video.

Abdul Rahim continues in custody with a motion to expedite pending the Court of Appeals decision in Parhat and Bismullah and with the District Court motion to lift stay still pending. Especially given his status as a witness to human rights violations, the continued incarceration of this Taliban torture victim is cruel and senseless. The sooner he has a hearing with an opportunity to clear his name, the sooner the return issues can be addressed for a Syrian Kurd tortured by the Taliban into falsely stating he was an American spy, then treated by Americans as a terrorist based on video-tapes resulting from the Taliban torture.

So the struggle continues on several fronts. In the District Courts, we try to maintain the habeas actions and to persuade judges to address unique facts and law not addressed in other forums. In the Court of Appeals, we are objecting to use of the Boumediene majority opinion while the Supreme Court case is pending, while seeking expedited review even under the limitations of the DTA review for CSRT violations. In the military proceedings, we provide the evidence of innocence and request that the enemy combatant determinations be vacated. In the Supreme Court, we congratulate the tenacious advocacy by the teams representing Boumediene and Al-Odah and stand ready to provide any assistance in what promises to be an extremely scary, defining moment, on our Country’s history.

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

US v. Gonzalez, No. 05-10543 (7-3-07). Defendant acted out on a flight, acting strangely, and demanding that the flight land. He ended up saying that he had a bomb and thrashing about as terrified passengers screamed. Other passengers wrestled him to the ground. He plead to Interference with a Flight Crew, in violation of 49 USC 46504. At sentencing, he got a 9-level enhancement for "reckless endangerment." This appeal concerns whether that enhancement was appropriate. The 9th (McKeown and Ezra) said "yes" and affirmed the 27-month sentence. The 9th reasoned that the combination of interference with crew, need for a diversion, and fear and terror caused by threats, escalated the conduct to reckless endangerment despite the fact that the plane was never in real danger. The distinction is between the statute reading 'harm" to plane or "endangerment." The focus on the 9th repeatedly turned to the "chaos" the defendant supposedly caused. The 9th, turning to the standard of proof, held that it should have been clear and convincing under Dare, 425 F.3d 634 (9th Cir. 2005), but that the error was harmless.

Dissenting, Tashima argued that the plane was never endangered, and that the acts only went to interfering with crew. He cautioned that the court's reasoning will elevate every offense under this statute to endangerment.

Schroeder v. Tilton, No. 06-15391 (7-3-07). The 9th affirmed a dismissal of a petition. The petitioner argued that the state change in evidence (allowing prior sexual abuse acts to be admitted) was applied in his case in violation of the ex post facto clause. The 9th held that the quantum of evidence needed to convict petitioner, nor the burden of proof, was not shifted. Under AEDPA, the state court (California) decision was not unreasonable.