US v. Stanton, No. 06-10519 (8-31-07). In a sobering opinion, the 9th (Goodwin joined by Bybee and Smith) held that there was sufficient evidence to support a magistrate's conviction for DUI. The district court had reversed, but the 9th reinstated. The 9th held that it had jurisdiction over the government's appeal. In terms of the conviction, when viewed in the light most favorable to the government, a rational trier of fact could have determined the defendant was guilty. The defendant testified as to the amount of alcohol he drank (several glasses and refills at a wine tasting near Lake Mead and a later glass at a restaurant). He also was driving 70 mph in a 45 mph zone. He failed two field sobriety tests and blew a .115 on a preliminary breath test. That test result was not used to determine guilt but only to establish probable cause, although the test was used to corroborate that he had been drinking. The statements of the defendant that he was "buzzed" also supported the verdict.

Case o' The Week: Ninth Rewards Defense Expert Chase, United States v. Chase

Yet another great Ninth Circuit decision arises out of the Fertile Crescent for criminal appeals: the District of Montana. United States v. Chase, __ F.3d. __, 2007 WL 2410177 (9th Cir. Aug. 27, 2007), decision available here. In Chase, Judge Ferguson emphasizes the right of an indigent defendant to a defense expert, and adds some teeth to the process by which meth quantities are estimated.

Players: Notable win by Montana AFPD John Rhodes, decision by Judge Ferguson joined by Judges Pregerson and Ikuta.

Facts: Chase pleaded guilty to meth crimes. 2007 WL 2410177 ,*1. At sentencing, he fought the government’s theory of the quantity of meth produced. Id. The government’s estimate was based on a letter by an expert, who had in turn relied on state reports about the lab’s contents. Id. The expert’s estimate was five times higher than what Chase admitted he produced. Id. Chase’s requested his own forensic expert; that was denied by the district judge. Id.

At an evidentiary hearing, the government expert conceded that he didn’t know the amount of precursors, and that he based his estimate on the size of a big flask (although there was no evidence that this particular flask had been used). Id. Chase testified and denied cooking that much meth. The district court sided with the government, and sentenced based on at least double what Chase admitted to having cooking. Id. at *2.

Issue(s): “Chase contends that . . . the district court erred in denying his request for an expert; . . .[and] the court based its determination of drug quantity on unreliable evidence.” Id. at *1.

Held: “We hold that the district court abused its discretion in denying Chase's request for a forensic expert and relied on evidence lacking sufficient indicia of reliability.” Id. “The Supreme Court has long recognized ... that ... justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake. . . . In this case, Chase had a right to hire an expert who could have produced his or her own investigation, interpretation, and testimony.” Id. at *3 (internal quotations and citation omitted).

Of Note: Chase will be remembered for its strong endorsement of the right of indigent defendants to experts. The case is also important, however, for meth lab cases because the Court establishes several important rules for yield calculations.

First, Judge Ferguson explained that the district court’s calculated production “lacked sufficient indicia of reliability.” Id. at *6. He then clarifies that glassware alone is an insufficient base to calculate production – previous cases involving glassware included precursor amounts and estimates arising from those chemicals. Id. Moreover, Ferguson limits the “multiplier” method of estimating production over several cooks. Id. at *7.

How to Use: Judge Ferguson’s rejection of the government’s arguments about defense experts provides ammo to the defense when seeking experts in other contexts. The Court rejects the government’s whine that the defense had a chance to cross the government expert, and that was enough. As Ferguson observes, “This argument misses the point.” Id. at *3. A defense expert is critical for two separate and independent reasons. First, a defense expert could have presented an alternative theory of calculating meth production – in other words, the expert could have affirmatively advanced the defense case. Id. Secondly (and separately) a defense expert could have sharpened the cross of the government expert, by honing attacks on the expert’s methodology. Id. at *4. Plug both of these rationales into CJA requests for defense experts (and note the reversal in Chase just to drive the point home).

For Further Reading: Rely on a good Ninth Circuit decision in the last couple of years, and you probably have the District of Montana to thank. That district had just 417 defendants commencing federal criminal cases in the year before June of ‘06. See US Courts statistical report here. The D Az, by contrast, had over 4,000. Id. Yet the Big Sky district has had a hugely disproportionate number of criminal appeals (and reversals) in the Ninth: Chase, Garcia, Larson, Jimison, and Juvenile Male in the last year alone. What’s gives?

The aggressive appellate chops of Tony Gallagher’s Defender office is one explanation – though US Attorney Mercer and the Montana district court bench may deserve some of our thanks, as well. Has no one heard of buying appellate waivers with a reasonable deal?

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

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US v. Chase, No. 06-30242 (8-27-07). The 9th sent a strong message to district courts that sentencing hearings are important, and that the defense must be given the means to contest government allegations. This was a meth case. The defendant said he only produced 40 grams of meth for personal use; the government expert said, theoretically, that upwards of 600 grams could be produced with the glassware found. The issue was hotly contested but the court denied defendant's request for an expert. Instead, the court asked the government witness to pretend he was a defense witness. The government witness, to his credit, said he could not. The 9th stressed that the defendant had to be afforded the means and chance to defend himself in sentencing hearings, and that the court and system would have benefitted from such an expert. There was prejudice because how the amount was calculated was susceptible to different interpretations. The 9th (Ferguson joined by Pregerson and Ikuta) also found that the sentence was based on insufficient data to justify the amount of drugs. A very good opinion for the procedures and process of sentencing.

Congratulations to AFPD John Rhodes of the D. Mont. for the win.

Bryant v. Arizona Atty General, No. 06-16138 (8-27-07). Petitioner argued that the statute of limitations under AEDPA had to be statutorily and equitably tolled because the prison failed to provide him with case law interpreting 28 USC 2244. The 9th affirmed the dismissal, finding that the petitioner had access to the case law on a date at least one year before he filed his petition and thus was out of luck. The 9th does recount how the Arizona prison system has a limited number of copies of the statutes, and that after 1997, the system went to paralegals who could get materials but could not conduct research. Still, at the facility where he was, he had such access and failed to file.

US v. Grigg, No. 06-30368 (8-22-07). Loud music leads to sex, drugs, and guns . . . or so believe the police. Here, defendant was identified by an irate neighbor as someone who played his music loud when driving. The police leaped into action, trailing the defendant who was driving silently, foregoing a driver's license check or other further investigation, pulling him over on supposedly reasonable suspicion, whereupon a prohibited weapon was found. The district court said it was a close question as to reasonable suspicion, but denied the suppression motion. The 9th reversed and granted. Gould, joined by Paez and Rawlison, wrote that a balancing test set forth in the Supremes' Hensley, 469 US 221 (1985) controlled, and using that test, a court reviewing a stop to investigate a past misdemeanor or minor infraction must assess the potential risk to public safety associated with the nature of the offense. Drunk driving is different from loud music, which the 9th opined seemed a most innocuous offense.

Congratulations to AFPD Tom Monaghan, E.D. Wash and Idaho, for the win.

US v. Hurd, No. 06-30592 (8-24-07). The 9th (Smith joined by Goodwin and Reinhardt) affirm the denial of a suppression motion despite the fact that the paragraph describing the house to be searched was not initiated. The previous paragraphs, describing the defendant and the vehicle, were. The house was searched and crack, cocaine, a scale, and cash were found. The failure to initial the paragraph in the warrant describing the house was at most a technical defect and not a constitutional one. The judge signed the warrant at the end and an objective review indicates that the warrant was lawfully authorized.

Case o' The Week: Solid Gould, New Ninth Circuit Rule on Terry Stops for Misdemeanors, Grigg

Judge Gould accomplishes the rare double-play, with last week's great decision in Yida (featured here) and this week's excellent opinion in United States v. Grigg, __ F.3d. __, 2007 WL 2379615 (9th Cir. Aug. 22, 2007), decision available here. In Grigg, Judge Gould articulates a new rule for the Ninth (and apparently, the first such rule in any circuit): Despite the Supreme Court's decision in Hensley, being wanted for a misdemeanor is not necessarily grounds for a Terry stop.

Players: Great win by AFPD Thomas Monaghan, Fed. Def. E. Wa. & Idaho.

Facts: A citizen complained to the cops that Grigg was “booming” music out of his car. Id. at *1. As the citizen filled out a complaint, Grigg drove by with no music blaring. Id. The police nonetheless pulled Grigg over, blocked the car, ordered him to stay inside, then saw a rifle in the car. Id. at *2. Officers had made no effort to call the car in to dispatch, or identify the driver. Id. at *2. Grigg was charged with possession of an unregistered machine gun and convicted after a trial. Id. at *1.

Issue(s): “[I]n Hensley, the . . . Supreme Court held that ‘if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.’ The Hensley court explicitly confined its analysis to the felony context, leaving open the question whether the rule could be extended to ‘all past crimes, however serious,’ i.e., misdemeanors. . . . Grigg’s challenge to the district court's extension of Hensley raises an issue of first impression for us.” Id. at *4 (citation omitted) (emphasis added).

Held: “[O]ur evaluation of a Terry stop in the context of a completed misdemeanor should tend to give primary weight to a suspect’s interests in personal security, while considering the law enforcement's interest in the immediate detention of a suspect is not paramount.” Id. at *9.

“Despite the misdemeanor-felony distinction . . . we decline to adopt a per se standard that police may not conduct a Terry stop to investigate a person in connection with a past completed misdemeanor simply because of the formal classification of the offense. We think it depends on the nature of the misdemeanor.” Id. at *9.

“We hold that under the balancing test set forth in Hensley, a court reviewing the reasonableness of a stop to investigate a past misdemeanor (or other minor infraction) must assess the potential risk to public safety associated with the nature of the offense. Under the circumstances here, it was unreasonable for the Nampa police to pull over Grigg on suspicion of having played his music too loudly where they did not duly consider the lack of any threat to public safety, especially given the untested alternative means of ascertaining Grigg’s identity. The motion to suppress was erroneously denied.” Id. at *11.

Of Note: This new Ninth rule is an important limitation of Hensley. Hold your breath ‘till the en banc and cert. twins pass by.

How to Use: Is your client’s misdemeanor sufficient to trigger a Hensley stop? Here’s the test:

“”[A] court reviewing the reasonableness of an investigative stop must consider the nature of the offense, with particular attention to any inherent threat to public safety associated with the suspected past violation. A practical concern that increases the law enforcement interest under Hensley is that an investigating officer might eliminate any ongoing risk that an offending party might repeat the completed misdemeanor or that an officer might stem the potential for escalating violence arising from such conduct, both of which enhance public safety. Conversely, the absence of a public safety risk reasonably inferred from an innocuous past misdemeanor suggests the primacy of a suspect’s Fourth Amendment interest in personal security.” Id. at *8.

For Further Reading: Here’s the back story. The trial defense was that Grigg didn’t know the gun was automatic. At trial, Grigg called the gun-seller who testified that it was broken and fired sporadically. See Appellant Brief, 2006 WL 3368590. ATF Agents – unhappy with that exonerating testimony – offered the witness immunity to change his story. Id. at *24-*25. When the witness refused an agent threatened, “someone is going to have to drink from that trough” – meaning the exonerating would be prosecuted if he didn’t play along with the government's theory. Id. At trial, an agent conceded this statement took place. Id.

Stellar investigation by Alcohol Tobacco and Firearms, the crown jewel of federal law enforcement agencies. Think these equities (not mentioned in the decision) weighed in favor of this Fourth Amendment victory?


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

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US v. Yida, No. 06-10460 (8-16-07). The 9th upholds a district court's exclusion of the former trial testimony of a witness in the retrial of the defendant. The government allowed the witness to be deported to Israel (truly next year in Jerusalem) when he gave assurances that he would return. He did not. He stated that health problems prevented him; the government's assurances they would pay for travel, hotels, and medical were to no avail. When the government sought to use his tetsimony in the second trial, the defendant objected, and the court granted the preclusion. The 9th's affirmance (Gould joined by Smith and Covello) focused on FRE 804's unavailability requirement and the government's need to use all "reasonable means" to "procure the declarant's testimony." The government, although not acting in bad faith, did not do what was reasonably necessary when the defendant was here to secure his availability for the next trial, and just bringing in the testimony was insufficient. Gould, who authored the majority, also penned a concurrence emphasizing the constitutional stakes of confrontation, and that interpretation gives added weight to the statutory spin.

Congratulations to AFPD Josh Cohen of D. N. Ca. (San Francisco) for the win.

US v. Hernandez-Acuna, No. 06-10173 (8-16-07). A district court judge rejected a magistrate's recommendation to suppress evidence without conducting his own evidentiary hearing. The defendant argues this violated due process. The 9th (Rymer joined by Thompson and Fisher) sidestep the issue. The magistrate had suppressed a stop of a sedan for supposedly driving in tandem with a truck containing marijuana. Officers had testified as to their observations of the driver and passenger as appearing rigid and of their driving habits. The magistrate found no reasonable suspicion. The district court rejected the recommendation to suppress without a hearing. He found, under the facts developed, there was reasonable suspicion under the totality of circumstances. At trial, the same officers testified, and defense counsel moved for suppression. The 9th was troubled with the rejection without a hearing, although noting that no credibility finding was made, there had to be implicit suggestions of doubt. Nonetheless, because of the "replay" at trial, and the opportunity to hear the officers, defense counsel raised the issue directly. As such, there is no reason for a remand for another evidentiary hearing.

US v. Lambert, No. 07-30060 (8-16-07). The 9th (Hawkins, Alarcon, and Wardlaw) affirm the sentencing enhancement under 2B1.1(b)(8)(A) for the defendant's misrepresentation that he had submitted grants on behalf of a tribe's Education Dept. The defendant had argued that the fraudulent grants he submitted on the Education Dept's behalf were written under his own name, and not on behalf of the Education Dept. He received $12,000 for his fraud. The acts of defendant were under the guise of representing the education dept of the tribe, even if he used his own name, and so fell under the guideline.

Case o' The Week: A new Gould Standard, U.S. v. Yida and "Unavailable" witnesses for FRE 804(a)(4), (a)(5)

Judge Gould (left) delivers a great decision that expands the temporal requirements for "reasonable" efforts to secure an "unavailable" witness under Federal Rule of Evidence 804(a)(4) and (a)(5). United States v. Yida, __ F.3d. __, No. 06-10460, 2007 WL 2325143 (9th Cir. Aug. 16, 2007), decision available here. Even better, he concurs (with himself) and emphasizes a constitutional component, as well!

Players: Important win by ND Cal AFPD Josh Cohen (see below).

Facts: Yida and others were charged in an ecstasy conspiracy. 2007 WL 2325143, *1. Co-D Reziniano flipped and was jailed five months before trial on a mat-wit detainer. Id. At trial Reziniano was “thoroughly cross-examined” by AFPD Cohen. Id. Josh hung the first jury and the case was set for retrial. Before retrial, Reziniano asked to be deported to Israel and promised to return to testify. Id. Without informing defense counsel or the court, the government agreed. Id. Reziniano was deported to Israel and then (shocking!) refused to return for retrial because of “illness.” Id. at *2. The government tried to introduce Reziniano’s prior trial testimony at the retrial, under the “unavailable witness” exception to the hearsay bar. Id. (relying on FRE 804(a)(4), (5)). District Judge Breyer refused, holding FRE 804 “unavailability” meant that the government must act “reasonably” in retaining the availability of a witness, not simply in seeking his return. Id. Here, Breyer explained, the government did not act reasonably when it allowed Reziniano to be deported. Id. The government took an expedited appeal. Id. at *3.

Issue(s): “This appeal turns on whether Reziniano is ‘unavailable as a witness’ such that his former testimony is admissible at Yida’s retrial [under FRE 804(a)(4) or (a)(5)].” Id. at *3. “This appeal turns on the meaning of ‘reasonable means’ and the relevant time-frame for assessing the [FRE 804] proponent’s conduct.” Id. at *5.

Held: “[I]mplicit in the duty to use reasonable means to procure the presence of an absent witness is the duty to use reasonable means to prevent witnesses from becoming absent.” Id. at *8 (internal citations and quotation omitted). To be sure, the appropriate time-frame for assessing the government’s actions will vary, according to the specific facts presented. Here, it is clear that the appropriate time-frame should not be limited to the government’s efforts to procure Reziniano’s testimony after it let him be deported, but should instead include an assessment of the government’s affirmative conduct which allowed Rezinano to be deported to Israel in the first instance . . . .” Id. at *8.”

“We agree with the district court and conclude that the government’s decision to deport Reziniano without informing either the court or Yida’s counsel, without taking a video deposition, and without having any means of compelling his return, was not reasonable, particularly when contrasted with the alternatives available to the government.” Id. at *12.

Of Note: Yida should be heavily mined by defense bar for excellent language on the importance of live testimony (drawn heavily from NACDL/Professor Friedman’s amicus contributions, as noted in the opinion). Id. at *3-*4. Even better, turn to Judge Gould’s concurrence emphasizing the constitutional dimension of the concept of “unavailability” and Sixth Amendment ramifications of FRE 804 evidence. Id. at *14-*15.

How to Use: Anyone dealing with material witnesses should read Yida carefully – the opinion is a primer for how to deal with this testimony before a mat-wit is allowed to leave the United States. Id. at *10-*12. Moreover, the opinion covers “unavailability” due to medical necessity. Id. at *13.

Finally, here’s a great quote: “Prosecutors must not only act in good faith but also operate in a competent manner; a prosecutor cannot claim that a witness is unavailable because a prosecutor has acted in an ‘empty-head pure-heart’ way.” Id. at *4. Describe any AUSA you know?

For Further Reading: Yida’s a fitting occasion to mark the departure of AFPD Josh Cohen (right) to private practice at Quinn Emanuel. A Williams College and Yale Law grad, Josh was a district court clerk and practiced at Williams & Connolly in D.C. He’s been a valued colleague and a great friend at the ND Cal FPD since 2003 – the Yida hung jury and Ninth Circuit victory are testaments to his skill as an attorney and to his commitment to indigent defense. (He is also the nattiest AFPD west of the Mississippi). Josh will be sorely missed: we wish him luck in private practice and look forward to future cases with him as CJA-appointed counsel.

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

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Womack v. Papa, No. 06-15069 (8-13-07). The 9th affirms a denial of an IAC claim from a Nevada state petitioner. He alleges that he received bad advice as his plea exposed him to be adjudicated a habitual criminal and receiving LWOP sentences. The 9th found that the state courts had adequate grounds to deny the IAC claim, holding that the state court record indicated he knew what he was doing and the evidence presented in post-conviction did not undermine the state courts' holdings.

US v. Seljan, No. 05-50236 (8-14-07). When sending letters abroad, the 9th decides, beware of writing wrongs. Here, the defendant sent Fed Ex packages to the Philippines. The packages were searched, which the 9th found permissible, because the clearing house was the functional equivalent of a border. A customs agent, acting under 31 USC 5371(b) (currency transfers) can search the full contents of any packages and smaller envelopes or wrapped items, looking for illegal currency sent abroad. He is also permitted to read personal correspondence when it is immediately apparent (through a quick scan, as here) that it contains obvious incriminating material. Here, the defendant sent packages to an 8-year old girl in the Philippines with sexually suggestive remarks and references. This lead to further searches and finally an arrest when the defendant was about to board a flight. The 9th (per curiam with Gould and Clifton and Pregerson for a part) upheld the search of the Fed Ex package, and two of the three (guess) upheld the reading of the letters because the letters were only quickly scanned at this "border," and the incriminating language was readily apparent from various phrases about body parts and ages. Pregerson, in dissent, argues that suspicionless search of a letter in the context of searching for currency violates the 4th Amendment. Pregerson notes that the agent could clearly see that it was an informal letter rather than anything that was dutiable. Pregerson also notes that obvious incriminating material, like child pornography or false social security cards, could be searched. But to allow a reading of personal correspondence without any suspicion goes too far. The majority's trumpeting of terrorism (that again) rings hollow because it was the US Mail that was being used, and risks unwarranted intrusion. Looking at paper is different from reading it.

Case o' The Week: Great Fisher decision, Garcia

A Great Fisher (left) opinion may provide some relief for two men with a century and a half or so of federal time ahead of them. See United States v. Garcia, __ F.3d. __, Slip. Op. 9681 (9th Cir. Aug. 10, 2007), opinion available here. In Garcia, the Ninth reminds us that there are -- remarkably -- still some limits to conspiracy liability. It also makes clear that discouraged Guideline departure factors are fair game as Section 3553(a) mitigators.

Players: Opinion by Judge Fisher.

Facts: Garcia, Smith, and others were charged with meth and gun crimes in Montana. Slip. Op. at 9685. At trial, Garcia’s Rule 29 motion challenged five conspiracy counts. Id. That motion was denied. Smith pleaded guilty. Id. at 9686. Garcia was sentenced to 1,284 months (107 years). Id. at 9685. Smith was sentenced to 369 months - 30 years. Id. at 9686. At sentencing, District Judge Cebull thought he was barred by the guidelines from considering Smith’s pitch that drug addiction was a mitigating sentencing factor. Id. at 9686.

Issue(s): 1. Could Garcia be held criminally liable for substantive acts committed by the conspirators before he joined the conspiracy? Id. at 9687.

2. “Smith challenges his sentence, arguing that the district court erred by not considering drug addiction as a mitigating factor under 18 USC § 3553(a)(1), which requires the sentencing court to consider ‘the nature and circumstances of the offense and the history and characteristics of the defendant.’” Id. at 9695.

Held: 1. “[Garcia] cannot be held liable for substantive offenses committed before joining or after withdrawing from a conspiracy . . . . We agree with Garcia that there is insufficient evidence that he entered the conspiracy to distribute methamphetamine as of July 2003.” Id. at 9687.

2. “The district court . . . adopted too narrow a view of its discretionary authority post-Booker. . . . The system of downward departures that still guides the sentencing court’s determination of the Guidelines-recommended range as required under §3553(a)(4) does not preclude the court’s discretion to consider other § 3553(a) factors . . . . We . . . hold that district courts are not prohibited in all circumstances from considering a defendant’s drug addiction in choosing a reasonable sentence.” Id. at 9695-96.

Of Note: How does the Ninth review the district court’s application of the Guidelines to the facts? Abuse of discretion? Or is it a de novo standard of review?

The answer is, “Yes.”

Two Ninth Circuit cases, a year apart, hold that these different standards apply. Id. at 9690 (discussing intracircuit conflict). Here, Judge Fisher refuses to jump where angels fear to tread – the panel punts, and avoids deciding the S.O.R. via an en banc call. Id. at 9690-91. This artful dodge sound familiar? Think back to Jimison, the “Rambo” case decided July 16th. There, Judge Kozinski (also on this Garcia panel) avoided the intracircuit conflict by using a very similar approach. See blog here. It’s a fair guess that the Ninth is (unofficially) either holding out for Supreme Court guidance in Gall or Kimbrough, or may resolve the split in Zavala / Carty.

How to Use: This is old conspiracy law, but Garcia lays out the principle again: a defendant is not liable for the substantive offenses committed by a conspiracy before he or she joined. Id. at 9686. This is tricky stuff, though: a late-arriving co-conspirator can be vicariously liable for acts establishing the crime of conspiracy itself – even of those acts preceded his involvement. Id. at 9688 & n.1. Note that this distinction may push a defendant below mandatory-minimum triggering amounts in a multi-defendant conspiracy – footnote one is worth a very close read.

Garcia also makes clear what we’ve argued since Blakely – Guideline “discouraged” factors are now entirely fair game for Section 3553(a) mitigation arguments. In this particular case, the “discouraged” factor is drug addiction – but the principle applies with equal force to all Chapter Five mitigators, such as age, community service, and lack of youthful guidance. See USSG § 5H1.1 - H1.12.

For Further Reading: Sixty-eight year old Judge Raymond Fisher is a Stanford Law grad, who was appointed by Clinton in ‘99. See profile here. He clerked for Judge Wright on the Ninth, as well as Justice Brennan, and was an Associate US Attorney General. Id. He also has a more-than-passing background in DNA evidence. See DOJ article here.

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


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US v. Garcia, No. 05-30596 (8-10-07). I thought it was a mistake when, in the facts, the sentence was put at 1284 mos (170 years or a mere 145 with "good time"). A second reading proved it was correct: there was a lot of meth and a lot of adjustments. The 9th (Fisher) vacated three counts of the conspiracy because the counts alleged meth, but the evidence was only that "drugs" were bought. The 9th (Fisher joined by Kozinski and Tallman) acknowledged that illegal drugs are bad, but when there was also evidence of cocaine, the convictions could not be taken to refer to meth without more. The 9th also went on to stress that the court had discretion in sentencing with the advisory guidelines and should not feel bound by the guidelines.

US v. Aukai, No. 04-10226 (8-10-07). Imagine Tina Tuner singing "What's Love Got to Do With It?" Change "love" to "consent" and you get the gist of this opinion, without the music. Judge Bea, fronting an en banc chorus, writes that once a passenger proceeds into a secured airline terminal area, the constitutionality of the search does not depend on the passenger's consent. Once in, you can be searched. Here, the defendant did not have "ID" when he tried to board a plane. He was sent to a secured area for a secondary search. The magic wand buzzed, and he said that he decided to skip his flight. His flight from the flight was prevented, and a further search revealed a pipe used to smoke meth, and a further search incident to arrest revealed meth itself. The 9th held that administrative searches may not require consent, and the Supremes have so held in regulated fields (gun dealers) so long as the searches are regulated and specific. The 9th reasoned that in this age of terrorism, post 9/11, that it was reasonable to do away with consent once a passenger enters into a secured airline screening area. This is to prevent terrorists from probing detention systems, or planning attacks. The search procedures used by the airline were reasonable, minimally intrusive, and short. Concurring, Graber, joined by Hawkins and Wardlaw, cautione that the analysis is not furthered by references to terrorism and 9/11. The concurrence feels that the opinion may be taken to be limited to this ongoing "war on terror." The analysis, implied by the concurrence, is that the regulations and needs of security allow an administrative search once a passenger decides to pass through the detector or security point. . . . And so the Constitution keeps on turning.

US v. Riedl, No. 06-10424 (8-6-07). Defendant was convicted of various money laundering counts in 1999, and was deported to Austria in 2004. In 2006, she sought to use the writ of coram nobis to attack the money laundering statutes as unconstitutionally vague. The 9th (Fisher joined by D. Thompson and Rymer) affirm the dismissal. Using the framework established in Hirabayashi, 828 F.2d 591 (9th Cir 1987), the 9th concludes that no valid reason exists for her delay in attacking the conviction sooner.

US v. Bolanos-Hernandez, No. 06-30406 (8-6-07). The 9th (Tashima joined by B. Fletcher and O'Scannlain) hold that California's assault with intent to commit rape (Cal. penal Code 220 and 261(a)(2)) is a crime of violence under 2L1.2(b)(1)(A)(ii). The 9th concludes that assault with intent to commit rape contemplates some physical force. Assault must be proved as well as attempted rape. Elements to these offenses require actual or intended physical force. Thus, the state offense qualifies as a crime of violence.

US v. Valenzuela, No. 06-30398 (8-3-07). The 9th adopts the Blockberger test (differing elements) to determine whether an enhancement is proper in a felon-in-possession offense for committing the offense during another felony. Here, the defendant stole some guns and then tried to sell them. The district court gave an enhancement, which the 9th affirmed (Gould joined by Paez and Rawlison). The 9th fashioned the test so that a district court analyzes the two offenses under a differing elements test (did one offense contain a firearm element that the other did not), and then the court determines whether the defendant used the weapon or whether it emboldened the defendant.

US v. Moses, No. 06-30379 (8-3-07). The 9th (Fernandez, Wardlaw and Pollak) held that defendant's attempt to split the waters in a seasonal riverbed violated the Clean Waters Act, and there was sufficient evidence so that the court did not "let my people go." Defendant owned a development that had a seasonal riverbed and he tried over the years to reshape the bed. He was warned to desist, but did not, and he was prosecuted for discharging pollutants into a stream. The 9th held that dredging tons of dirt could be a pollutant (sounds like one of the plagues), that a seasonal riverbed fell under the Act, and that the evidence was sufficient.

Hoyle v. Ada County, No. 06-35509 (8-2-07). The 9th affirmed a denial of a double jeopardy claim. The jury in a state trial acquitted on a number of racketeering charges, but could reach no verdict on seven predicate acts, and so indicated on the verdict form. The 9th agreed with the lower courts that this resulted in a mistrial, and he could be tried again.

Case o' The Week: Mand-min cross mandatory, at minimum? United States v. Larson, en banc

[Ed. note: Because I will be out of the state Monday August 6, this Larson Case o' The Week summary is being posted several days early].

Can one cross a rat about mandatory-minimum sentence? Yes! Or rather, "Probably!" Or perhaps, "Maybe!" The en banc decision in Larson is a huge improvement over a truly dismal opinion by the three-judge panel, but will still leave many district courts scratching their heads. We've got more ammo, but the defense bar will still have to fight to effectively reveal the crushing mandatory sentences that cooperating witnesses hope to avoid by parroting the AUSA's version of events -- or rather, by "truthfully providing testimony." See United States v Larson, __ F.3d. __, 2007 WL 2192256 (9th Cir. Aug. 1, 2007) (en banc), decision available here.

Players: Argued by Montana AFPD David Ness, decision by Judge Paez. "Concurrence" by Judge Graber, et al., dissent by Judge Hawkins, et al.

Facts: Four co-Ds were charged in a meth conspiracy. Id. at *1. Co-D Poitra and Lamere (“P” & “L”) flipped. P was looking at a five year mand-min, L, a life mand-min. Id. During cross, the defense elicited P’s 5 year mand-min, Montana District Court Judge Haddon interrupted and instructed the jury sentencing was up to him, and limited cross on the subject. Id. at *2. In light of that ruling, L’s life mand-min wasn’t brought up before the jury. Id. The defense did impeach both cooperators, however, on other fronts. The convicted co-D’s appealed, and a three-judge panel held it was not a violation of the Confrontation Clause: the case went en banc.

Issue(s): “These appeals present the question whether the Sixth Amendment Confrontation Clause rights [the convicted defendants] were violated when they were barred from cross-examining two witnesses about the mandatory minimum prison sentences that they would have faced but for their cooperation with the Government.” Id. at *1.

Held: “Before addressing the merits of Defendants' constitutional arguments, we clarify the standard of review that we apply to Confrontation Clause challenges. Under the circumstances here, we review for abuse of discretion, and we hold that Defendants' Confrontation Clause rights were violated. The error was harmless, however, and we therefore affirm their convictions.” Id.

Of Note: We flagged the very troubling three-judge decision in Larson last September. See blog here. The en banc decision is much better, but the compromises necessary to corral the en banc majority do show at the seams. Here are the core holdings of Larson:

1. There is a new hybrid standard of appellate review for Confrontation Clause issues, de novo when an area is completely shut off from cross, “abuse of discretion” for limitations of cross within a subject area. Id. at *5.

2. Limitations on cross on mandatory-minimum sentences can rise to a Confrontation Clause error (i.e., "an abuse of discretion") but the analysis is context-specific. Id. at *6 (discussing factors in Confrontation Clause analysis).

3. Higher mand-mins have greater relevance to show witness motivation. Thus fewer limitations on cross exploring high mand-mins will be tolerated. This is not a per se rule permitting cross re: mandatory-minimums, but as (grumbling ) Graber points out, “The rationale that animates [the majority's] opinion could apply to any statutory minimum term of years, not just to a statutory term of life in prison. The strength of a witness’ incentive to assist the prosecutor may be just as great or greater if she is a young mother facing a 5-year statutory minimum term, or if he is terminally ill and subject to a 10 year statutory minimum.” Id. at *15.

How to Use: Larson will be all things to all parties (ironically, for a “clarifying” en banc decision). The government will argue that the fact that there was no Confrontation Clause error as to P means that lower mand-mins can’t be explored on cross. That spin isn’t true to the reasoning of the majority decision: here, P’s five-year mandatory minimum was disclosed to the jury, which avoided the Confrontation Clause error.

The defense will argue that any limitation on cross on mand-mins is a Confrontation Clause violation – but, unfortunately, we’ll probably have to slug through factual comparisons with the impeachment permitted in Larson. The defense should also emphasize the magical (and mythical) curative powers of limiting instructions: the majority reassures the government and its allies that limiting the jury’s consideration of sentencing can mitigate the jury’s exposure to the numbers discussed in a mand-min cross. Id. at *8 n.9. Nice to be able to use these platitudes about limiting instructions against the government, for a change.

For Further Reading: Larson looks like a Supreme Court case: more splits than an ice-cream parlor. So much for the unifying effect of the fifteen-member en banc. Reporter Pam MacLean has a great article on the end of the larger en banc panels. See article here.


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

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US v. Larson, No. 05-30076 (8-1-07) (en banc). The 9th, in a strange split (Paez writing for the en banc majority of Schroeder, Fisher, and Gould), holds that a confrontation clause violation occurred when the trial court limited the cross of a witness facing a mandatory minimum sentence without a government motion for substantial assistance. Although constitutional error was found, the 9th deemed it harmless given the weight of evidence. The 9th also resolved the intra-circuit split on the proper standard of review of cross examination restriction. One line of cases used de novo; another abuse of discretion for limitation; and a third employed a mixed approach. Here, the 9th holds that: "If a defendant raises a Confrontation Clause challenge based on the exclusion of an area of inquiry, we review de novo. In reviewing a limitation on the scope of questioning within a given area, we recognize that 'trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination, based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.'" (citation omitted) (slip at 9152). A challenge to an precluded area is de novo; a challenge to the manner or scope of cross on nonconstitutional grounds is abuse of discretion. This approach follows the Supremes in Van Arsdall, 475 US 673 (1986) and other circuits.

Turning to the error in the case here, the trial court was compelled to have permitted defense counsel question about mandatory minimums, and the need for a government motion to get under it. In this case, it was a mandatory life sentence.

Concurring, Graber joined by Rymer, Tallman, Clifton, Bea, M. Smith and Ikuta, would find no Confrontation Clause violation in failing to question on the mandatory minimum sentence. Confrontation is satisfied when there are questions about bias and motive; there was no specific need to go into the specific mandatory minimum given the extent of the cross on bias and background. Here, the defense established that the witness had a motive to lie.

Dissenting, Hawkins joined by Pregerson, Reinhardt, and Wardlaw would hold that the error was not harmless.

US v. Goetzke, No. 05-30267 (8-1-07). In a per curiam decision, the 9th affirms a conviction for attempting to persuade a minor to engage in unlawful sexual activity in violation of 18 USC 2422(b). The defendant had met the minor while the minor was staying at a family friend's ranch in Montana. At the ranch was defendant, who was a registered sex offender. The family brought the minor home, but the defendant started to write, and describe both sexual acts, and a possible meeting. A jury could rationally find that the letter writing, descriptions, and plans to commit unlawful acts (1) advanced a criminal purpose; and (2) provided some verification of the existence of that purpose.