Case o' The Week: Loose Lips Sink Fraud Ship, US v. Dearing, "reckless indifference" and health care fraud

"Loose lips might sink ships." A great motto for wartime discretion, bad evidence when it comes from a boss, speaking to a health care employee during the midst of a fraud investigation. See United States v. Dearing, __ F.3d. __, 2007 WL 2769657 (9th Cir. Sept. 25, 2007), decision available here. This disappointing Hall decision is primarily concerned with the adequacy of evidence in a health care fraud trial. Buried in some -- terse -- analysis, however, is a troubling erosion of mens rea requirements in fraud cases (with implications for other white-collar fraud cases, such as securities fraud).

Players: Judge Hall authors, Canby and Callahan join.

Facts: Art Dearing was a part-owner of a health care facility with his brother. 2007 WL 276957, *1. Art’s brother ran the place, and had repeated problems with (fraudulent) Medicaid billing. Id. Evidence at trial suggested that Art was aware of these problems, although he wasn’t involved in day-to-day operations and didn’t personally submit for reimbursements. Id. at *1-*2. For example, he allegedly told an employee complaining about fraudulent activity, "loose lips sink ships." The health care fraud statute requires that the defendant “knowingly and willfully executes . . . a scheme” to defraud a health care benefit program. Id. at *3. The trial court, however, instructed the jury that the “intent to defraud” could be shown if the defendant acted “with reckless indifference to the truth or falsity of the statements.” Id. at *4. After conviction, Dearing challenged this instruction (among other issues) on appeal.

Issue(s): “Dearing . . . claims that the district court erred in permitting a jury instruction that allowed a finding of guilt based upon reckless indifference rather than willful intent.” Id. at *4. “Dearing . . . asserts that a second instruction effectively lowered the mens rea requirement from willfulness to recklessness.”

Held: “We hold that the phrasing of this additional instruction was not erroneous and did not effectively relieve the government of its burden of proving that Dearing’s actions were willful. . . .” Id. at *5. “We have repeatedly held that the intent to defraud may be proven through reckless indifference to the truth or falsity of statements.” Id. “[T]he ‘reckless indifference’ instruction that Dearing challenges was tethered to the ‘specific intent to defraud’ element, which the government was required to prove in addition to the first element. Therefore its inclusion did not negate the separate instruction that to convict, the jury had to find that Dearing acted ‘knowingly and willfully.’” Id. (emphasis in original).

Of Note: Buried in Dearing is some bad law for white collar and fraud cases – and it doesn’t help that the analysis isn’t the model of clarity. The specific instruction at issue was a definition of “intent to defraud.” Id. at *4. The contested instruction allowed the government to show “intent to defraud” by proving the defendant acted with “reckless indifference to the truth or falsity of the statements.” Id. Dearing persuasively argued that this means that a defendant who acted with reckless indifference could be convicted of the crime of knowingly and willfully executing a scheme to defraud. In rejecting this argument, Judge Hall relied on a footnote from a prior Ninth Circuit case for the proposition that a “reckless indifference” instruction can support a securities fraud conviction. Id. at *5, quoting United States v. Tarallo, 380 F.3d 1174, 1189 & n.5 (9th Cir. 2004).

Backdating folks, take note: Dearing solidifies a suspect trend in law, that allows the “willful” element to be satisfied by mere reckless indifference in fraud cases (including securities fraud). See Tarralo, 380 F.3d at 1188-89. This doesn’t make sense – willful action, and reckless indifference, are traditionally very different mental states. This deteriorating mens rea trend in fraud cases is fertile ground for a law review article, and cries out for a cert. petition.

How to Use: One thing that saved the conviction in Dearing was that the “reckless indifference” instruction was “tethered” to other instructions requiring higher mens rea showings. Id. at *5. Don’t let the government argue that a “reckless indifference” instruction – standing alone – suffices for a fraud case: in Dearing, the jury could not have relied on reckless indifference alone to find the required mental state, given other instructions that were structured to also require proof of a “specific intent to defraud.” Id.

For Further Reading: We’ve reviewed the oddities of federal mens rea requirements in the Lombera-Valdovinos blog. See blog here. Try to explain this area to a lay person: attempted illegal reentry requires specific intent, but simple illegal reentry has no mens rea requirement. Health care fraud requires the defendant “knowingly and willfully” executed a scheme to defraud – but “reckless indifference” is close enough for a conviction? For an interesting article criticizing the American approach to the concept of mens rea, see Keren Shapira-Ettinger, The Conundrum of Mental States: Substantive Rules and Evidence Combined, 28 Cardozo L. Rev. 2577 (2007).


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

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Bockting v. Bayer, No. 02-15866 (9-27-07). The 9th affirms a denial of a habeas. The issue revolves around the admission of a child's testimony in a child rape case under Idaho v. Wright, 497 US 805 (1990) and Ohio v. Roberts (Crawford has no retroactive application). The child gave statements to the mother and detective, and then became "frozen" on the stand, and said very little. The original conviction was affirmed by the state supreme court (Nevada) and then the Supremes remanded in light of Wright. The state supreme court again affirmed. Petitioner argues that the decision, even under Wright, was an unreasonable application of federal law and unreasonable as to facts. The 9th (Wallace joined by McKeown) rejected the unreasonableness, holding that the state supreme court's determination of the law and facts were reasonable. Dissenting, Noonan derided the state supreme court's analysis as mechanical and fact-finding as unreasonable.

US v. Bussell, No. 06-50088 (9-27-07). This deals with how to determine losses in bankruptcy fraud. In this case, the defendant is a practicing dermatologist and her husband a cardiac anaesthesiologist. Yet, both had millions in debt. They concocted a scheme, with lawyers, to play a shell game with assets and income. The shell game was exposed, the lawyers flipped in plea deals, and the defendant was left holding the bag, or at least the bankruptcy petition. On appeal, her main argument was that loss should be the amount of assets concealed, rather than the debt discharged. The 9th refused to go with a mechanical rule or categorical, but leaves it up to the court to determine loss based upon economic reality.

US v. Sullivan, No. 06-30546 (9-28-07). They can't have it both ways when it comes to halfway houses. What does this mean? Well, does a halfway house count as "imprisonment?" "No," says BOP and various other agencies. So, here, when the defendant tested dirty for pot in a Montana pre-release facility (halfway house), the question is whether his stay there counted towards supervised release on a federal charge or whether it did not. If it counted, defendant's SR had expired; if it did not, SR was still running. The 9th, joining other circuits, held that a halfway house is not imprisonment. It is an alternate to imprisonment. Hence the SR started running, and the petition was out of time, and the prosecution out of luck in seeking a revocation.

Congratulations to Deputy Federal defender David Ness of D. Montana (Billings).

Good Citations No. 3

Here are some interesting developments around the country that might come in handy.

• In our habeas corpus cases involving the one year statute of limitations under the Anti-Terrorism and Effective Death Penalty Act, we should take a second look at when the sentence became final. In Ferreira, the Eleventh Circuit reversed course based on this term’s Supreme Court opinion in Burton, which found that a petitioner’s claims were successive. The Court used language in Burton to overturn its precedent finding that the statute of limitations did not restart with the grant of a new sentencing where the conviction remained intact. “The judgment to which AEDPA refers is the underlying conviction and most recent sentence that authorizes the petitioner’s current detention.” In other words, the statute of limitations for the federal habeas statute should commence when there is any change in the underlying state sentence, even if the conviction is not overturned.

• In Amos, the Sixth Circuit opens a much needed circuit split on whether a mere possession of a sawed-off shotgun constitutes a “violent felony” under the Armed Career Criminal Act. The Court, applying the least objectionable form of the offense, found that mere possession of a sawed-off shotgun did not create the types of risks that were contemplated by the ACCA. Judge Batchelder’s concurrence provided a roadmap for raising this issue in the Ninth Circuit by 1) citing to the intervening Supreme Court authority of Leocal for the proposition that “crime of violence,” which has almost the same definition as the ACCA’s “violent felony,” should be given its ordinary and natural meaning; and 2) citing to Fish in the Ninth Circuit and other cases that undercut the reasoning behind treatment of simple possession as a “violent felony” under the ACCA. Congratulations to C. Douglas Thoresen of the Nashville Federal Public Defender!

• Our comrades in the Federal Defender office for the Eastern District of Wisconsin have this lovely newsletter, “The Doing Time Times.” The articles in the Fall 2007 issue include sex offender registration, update on crack and powder cocaine sentencing, compassionate discharge under 18 U.S.C. § 3582(c), and, winning the award for the best article title, “Presidential Clemency-How Do I Get What Lewis Libby Got?”

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

Stenson v. Lambert, No. 05-99011 (9-24-07). The 9th (Schroeder joined by Kleinfeld and Bea) affirmed the denial of a habeas alleging such disagreement between petitioner and counsel that constitutional rights were violated. They were not, rules the 9th. Counsel focused on the sentencing/penalty phase, while the petitioner wished counsel to argue that someone else committed the murder (like petitioner's wife), although such evidence was virtually nonexistent. The 9th upheld the state supreme court's finding of no violations of constitutional rights, including the denial of self-representation. There was also no IAC in counsel's conceding guilt during the penalty phase.

US v. Dearing, No. 06-30606 (9-25-07). The 9th affirmed a conviction in a 32-count aiding and abetting health care fraud prosecution. The evidence was sufficient and there was no error in the jury instruction stating that wilfulness can be proved through reckless indifference.

Case o' The Week: Sinerius, Mand-Min Predicates in Child Porn cases, and Categorical Analysis

Ninth Circuit Split? Judge O'Scannlain, a vocal supporter, Judge Betty Fletcher, as publicly opposed. Last week, however, these two Ninth Circuit vets unfortunately found something they could agree upon -- denying a defense challenge to the use of a prior to trigger a fifteen-year mandatory minimum sentence in this child porn case. United States v. Sinerius, __ F.3d __, 2007 LEXIS 22424 (9th Cir. Sept. 20, 2007), decision available here.

Players: Hard-fought case by Montana FPD Senior Litigator Michael Donahoe.

Facts: Sinerius pled to receipt and possession of child porn. 2007 LEXIS 22424, *1-*2. Although the guideline range started at 97 months, the PSR found that a prior Montana sexual assault conviction triggered a fifteen year mandatory minimum. Id. at *2-*3. At sentencing, Sinerius argued that this prior “did not categorically qualify as a predicate offense for enhancement purposes.” Id. at *3-*4. The district court disagreed, used the prior to trigger the mandatory-minimum, and gave 180 months for the receipt of child porn (with ten years concurrent on the possession count). Id. at *5.

Issue(s): “We are called upon to determine whether a federal defendant’s prior conviction for ‘sexual assault’ under Montana state law triggers an enhanced penalty under the sentencing provisions applicable to his federal crimes.” Id. at *1. “. . . Sinerius maintains that the Montana statute is over-inclusive vis-a-vis the offenses described in § 2252A(b) [the federal child porn statute] and, as a consequence, that his conviction therefore cannot categorically qualify as a predicate offense.” Id. at *9.

Held: “Under the categorical approach, we look only to the fact of Sinerius’s prior conviction and the elements of the Montana offense to determine whether § 2252A(b)’s definition of ‘sexual abuse’ covers the full scope the conduct prohibited by the Montana sexual assault statute.” Id. at *8-*9. “The Montana statute undeniably proscribes acts that are ‘sexual’ in nature.” Id. at *9. “In addition, the range of conduct the Montana statute proscribes is ‘abusive’ because it necessarily involves physical ‘contact without consent.’” Id. at *9. “Under the categorical approach, even the least egregious conduct proscribed by the Montana statute must qualify as an offense ‘relating to . . . sexual abuse.’ . . . If such conduct does not qualify, the . . .statute is over-inclusive on its face.” Id. at *9-*10.

“[E]ven the least egregious conduct proscribed by the Montana statute, consensual sexual contact by a 16-year-old on a 13-year-old victim, categorically qualifies as ‘sexual abuse.’ Further, because the statute requires the victim to be under 14 years of age to render her consent ineffective, our conclusion is consistent with our decisions in Lopez-Solis and . . . Baza-Martinez, holding that more expansive state statutes were not predicate offenses within the definition of the term ‘sexual abuse of a minor.’” Id. at *11.

Of Note: Montana Senior Litigator Michael Donahoe raised an interesting and creative challenge in Sinerius. He argued that the Court shouldn’t look at generic language in the federal statutes of conviction (the child porn statutes) to determine whether the prior state conviction is a qualifying predicate. Instead, the Court should undertake the categorical analysis by looking at the definitions for the federal crime of “sexual abuse” (18 USC § 2242). Id. at *13. Makes intuitive sense – why look to Black’s for “generic” definitions, when Congress has actually defined “sexual abuse” in a federal statute? Judges O’Scannlain, B. Fletcher, and Tashima, unfortunately, don’t buy it. Id. at *19.

How to Use: As child-porn prosecutions rise, we’ll see more of these “predicate” cases. These are big-ticket issues: the prior in this case lumped roughly seven years on top of the guideline range. While Sinerius is a defense loss, it illustrates that whether a state prior counts as a mand-min predicate depends heavily on the particular state crime at issue. This particular Montana conviction qualified, but (Judge O’Scannlain concedes) both Lopez-Solis and Baza-Martinez held that other sex-with-minor crimes did not. Don’t cave to the PSR or be spooked by the generic title of a state conviction – these predicates can be fought and won, and the stakes are often huge.

For Further Reading: The complicated categorical/modified analysis got simpler this week (in a very good way). See Navarro-Lopez v. Gonzalez, __ F.3d. __, 2007 WL 2713211 (9th Cir. Sept. 10, 2007), en banc, decision available here. In the excellent Navarro-Lopez opinion, Judge Pregerson explains that when the categorical analysis reveals that the crime of conviction is missing an element of the generic crime altogether, the Court cannot then fall back on the modified categorical approach. Id. at *8. As Jon Sands notes below, Arizona AFPD Brian Rademacher caught, and touts, this clarification – an approach which brings the Ninth in line with the progressive Fifth Circuit (!) on the issue.

Navarro-Lopez gives us yet another reason to hope that Judge Pregerson holds off on senior status for another dozen years or so . . . .


Steven Kalar, Senior Litigator N.D. Cal. (and former Hon. Harry Pregerson law clerk).

Website at www.ndcalfpd.org

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US v. Sargent, No. 06-30498 (9-20-07). A disgruntled mail employee hatched a scheme to get back at the Postal Service. He took the Postal Statements that bulk mailers submit to the Postal Service which estimates the cost and amount. With no postal statements, the mail went out seemingly without payment. Neither rain, nor snow, nor lack of statements kept the mail from going out. The Postal Service was very unhappy and, unsurprisingly, charges of theft from the Postal Service (1707) and theft of goverment property (641) were brought. A bench trial took place, and the defendnat was convicted. But wait, the government could not prove, or so argued defendant, that the value was over $1,000 because the Postal Statements had no face value and no worth. They were estimates for accounting purposes supplied by the mailers. The 9th (Wallace) agreed and reversed.

Congratulations to AFPD Mary Geddes, D. Alaska.

US v. Sinerius, No. 06-30327 (9-20-07). The 9th (O'Scannlain) held that Montana's sexual abuse statute was a predicate offense under a categorical analysis for enhancement purposes for the federal child pornography statutes.

US v. Grace, No. 06-30472 (9-20-07). In this complex interlocutory appeal, the 9th reversed the district court's order dismissing a knowing endangerment count and its use of the civil definition of asbestos rather than the criminal one. The 9th also dealt with a myriad of issues of what an expert can or cannot rely on in forming an opinion about a series of tests about pollution.

Navarro-Lopez, No. 04-70345 (9-19-07) (en banc). The Ninth Circuit issued an en banc decision in an immigration case today holding that, under the Taylor categorical approach, California's "accessory after the fact" statute is categorically NOT a crime involving moral turpitude. Pregerson wrote most of the majority opinion. He is joined by a concurrence (Reinhardt). There are dissents by Judge Tallman (joined by O'Scannlain, Rawlison, Clifton, and Bybee) and by Judge Bea (joined also by O'Scannlain).

The holding that "accessory after the fact" is not a CIMT is quite simple: there is no element of any type or moral turpidinous behavior. That is, there is no requirement that the act be base or depraved.

The majority discusses what is a CIMT. CIMT requires behavior that is (1) vile, base and depraved and (2) violates societal moral standards. The majority opinion goes on to state, a crime involving fraud is not necessarily a CIMT, because someone can intentionally commit fraud, but that conduct is not necessarily vile, base or depraved, nor shocking to society's conscience, though it's illegal. The majority gives the hypothetical example of a welfare mother signing her deceased father's disability check to feed her children. It's illegal, but neither vile, based or depraved, so it would not be CIMT.

Reinhardt, concurring, parts company with Pregerson over whether fraud is a categorical CIMT or whether it should be examined. Reinhardt believes the issue is foreclosed that it is under 9th Circuit en banc precedent.

One commentator (AFPD Brian Rademacher) points out the majority indicates that if a crime is categorically not a predicate offense, then the modified approach can not be used to prove that the prior offense qualifies. If a state statute does not include one of the elements of the generic definition of the federal predicate anywhere (i.e., in none of the subsections), then it can never qualify as a predicate offense. This unlike the situation where the state statute is categorically overbroad, i.e., one of its subsections does include the necessary elements, but other subsections do not. In this situation, the modified approach can be used to fill in the missing element needed for the generic definition. The 9th is in line with the 5th (yes, the 5th!) on this.

The dissents argue that accessory is a categorical CIMT because it is either a variation of fraud, and the precedent of the 9th would support this, or it is base and depraved to hide a felon.

Brown v. Ornoski, No. 05-99008 (9-19-07). The 9th (Hawkins joined by Thomas and Bea) affirm a denial of a petition in a capital case. The petitioner failed to show that IAC took place at sentencing with the calling of an expert psychiatrist who had both good and not-so-good things to say about the then-defendant. The 9th did the AEDPA analysis in deferring to the state supreme court, and in this case, the expert gave a lot of good, while trying to humanize some of the bad in explaining the rape/murder. There was also no IAC in the investigation and presentation of mitigation.

Case o' The Week: Leon gets a Crews Cut, United States v. Crews

In a very disappointing decision, visiting, Senior, district court judge Duffy (right) writes for the Ninth and dramatically expands Leon. In Crews, Judge Duffy stretches the Leon good faith exception to cover a warrant that so lacked probable cause that two respected Oregon district court judges had found it deficient -- including one that had heard live testimony at an evidentiary hearing. United States v. Crews, __ F.3d __, 2007 WL 2580634 (9th Cir. Sept. 10, 2007), decision available here.

En banc petition, on its way . . . .

Players: Hard fought case by AFPDs Lisa Hay and Francesca Freccero.

Facts: Portland cops tried to pull Crews over (at 2:00 a.m.) for failing to signal. 2007 WL 2580634 , *1. Crews (a felon) fled but was soon arrested. Id. The car was registered to“Manus” (a felon). She lived near where Crews was arrested. Id. A sweep of the arrest area produced a .22 revolver under some shrubs. Id. The cops then surveilled Manus’ apartment for two days, and saw Crews and Manus come to and fro. They got a search warrant for the apartment, and discovered a .38 within. Id. at *2. Crews and Manus both confessed when interrogated. Id. Chief Judge Haggerty held an evidentiary hearing, then District Judge King ruled that the search was unlawful and the statements were tainted fruits. Id. at *1. The government appealed.

Issue(s): “The Government now appeals . . .contending that there was probable cause to search . . ., and that even if there was not, the ‘good faith reliance’ exception applies . . . .” Id. at *2.

Held: “While this case is not a model of flawless procedure, it does demonstrate objective reasonableness.” Id. at *8. “[W]e find the good faith reliance exception applicable . . . .” Id. at *3. “On its face, the affidavit was not so lacking in indicia of probable cause as to render reliance upon it objectively unreasonable.” Id. at *4. “For probable cause, an affidavit must establish a reasonable nexus between the crime or evidence and the location to be searched.” Id. “The affidavit showed indicia of such a reasonable nexus between the crime of ‘felon in possession of a firearm’ and Apartment 3 by demonstrating a sufficient link between Crews, Manus, firearm evidence, and Apartment 3 such that an officer could have reasonably relied upon it in good faith.” Id. “If Crews or Manus kept a firearm in the car, it is reasonable to believe perhaps that they also kept evidence of possession of a firearm at Apartment 3, the registered address of the car and the residence where Crews was frequently seen shortly after police discovered the .22 revolver.” Id. “[W]e find that the officers were objectively reasonable in their reliance on the warrant and affidavit in executing their search of Apartment 3 for evidence of possession of firearms.” Id. at *5.

Of Note: This case – “not a model of flawless procedure” – is another troubling investigation by the Portland Police Department. Note the 2:00 a.m. traffic stop for a “failure to signal” (remember the pre-Whren days when pretext stops were illegal?) Note also that Crews, stopped for a signal violation at 2:00 a.m., is black, raising suspicions about whether this was a race-based stop.

The Portland P.D. is becoming a frequent topic in the Ninth – the Court recently delivered a Fourth Amendment win when the Portland Police Department obtained “consent” for a search after an impermissible seizure (of another African-American defendant). See blog here, discussing United States v. Washington, 490 F.3d 765 (9th Cir. 2007), decision available here.

How to Use: Crews is not, technically, a probable cause decision. The core legal analysis in this case is the Leon analysis, and whether the “good faith” exception does not apply. See id. at *4. Visiting Judge Duffy identifies four circumstances where the Leon good faith exception does not apply. Id. The bulk of the opinion focuses on the fourth: “where the affidavit upon which the warrant is based is so lacking in indicia of probable cause that no reasonable officer could rely upon it in good faith.” Id. at *4-*5. (It bears emphasis that below, Chief Judge Haggerty had found the affidavit so lacked P.C. that Leon good faith wasn’t triggered).

It is hard to put any positive spin on this opinion: it is a very disappointing (and unpersuasive) stretch to shoehorn these facts into the protections of Leon good faith. An en banc petition is on its way, and it deserves a close look by the Court – Crews could expand Leon well beyond current Ninth limitations.

For Further Reading: Advocates of a Circuit split complain that i. Senior, ii. district court, and iii. visiting judges are routinely tapped to fill-out Ninth Circuit panels. See article here.

The author of Crews – seventy-four year old, Nixon-appointee, Hon. Kevin Thomas Duffy – is all three. See article here.

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

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US v. Atalig, No. 06-10511 (9-6-07). A lie to the government does not have to be to the specific agency that has jurisdiction over the subject matter involving the lie? Got it. The defendant was put in charge of disaster relief when Super Typhoon Pongsuna slammed into Rota Island in the Mariana Islands. Disaster relief was forthcoming, and the defendant liberally construed relief, including false claims and false statements. The defendant tried to argue that the forms on which she made the false statements did not go to the agency in which that had jurisdiction over the disaster relief. Does not matter. In 1996, Congress amended the 1001 statute to remove the "particular jurisdiction" requirement, and the government does not bear the burden of having to prove a connection.

Polk v. Sandoval, No. 06-15735 (9-11-07). The 9th (B. Fletcher joined by Clifton and Ikuta) grant relief to a Nevada state petitioner doing two life sentences for premeditated murder for a defective jury instruction. Nevada require first degree murder to be "willful, premeditated, and deliberate." Only premeditation was defined. This lack of definition for deliberation was defective, relieving the state of its burden, and not harmless. The state supreme court itself recognized the defective nature of the instruction after petitioner's conviction but before briefing. The state supreme court sidestepped, reasoning that although the court had told the trial courts not to use the instruction because it was wrong, the error was not constitutional, and so no relief. The 9th would have none of that.

Congratulations to AFPD Lori Teicher of the D. Nevada (Las Vegas) for the win.

US v. Crews, No. 06-30414 (9-10-07). In an understatement, the 9th finds that "[W]hile this case is not a model of flawless procedure, it does demonstrate objective reasonableness." Let's see, the defendant was arrested for trying to elude the police, a gun was found blocks away. Defendant was released, but the police watched him and his girlfriend come and go from an apartment. This formed the basis of the probable cause that there was probably guns and ammunition in the apartment and other evidence of the crime of trying to elude the police. The 9th (Duffy joined by Hall and Smith) held that Leon's "good faith" exception applied here. The police could draw he dots between the gun found outside the car and possible guns in the apartment and connection between the defendants. The 9th also held that police were not misleading the court.

Fields v. Brown, No. 00-99005 (9-10-07) (en banc). Sitting en banc, the 9th (Rymer writing) upholds a death sentence even though a juror consulted the Bible as to the appropriateness of capital punishment, and took his notes into the jury room, where they were discussed and made part of the deliberations. The juror's actions were misconduct, but harmless. In so reasoning, the 9th permitted extrinsic evidence, selective reading of the Bible, and allowed religion to determine a verdict. Dissents by Gould (joined by McKeown and Wardlaw) and Berzon (joined by Reinhardt and Thomas) are aghast at the majority's "wistful thinking" about prejudice and is troubled at the prospect of permitting a "theocratic jury room." The 9th let its horror at the crimes blind it to the grave misconduct and the violation of due process.

Case o' The Week: Mr. Holland's Opus, recusal in the Ninth

What does it take to spark mandatory recusal of a district court judge? More than a couple of threatening messages on a judge's home answering machine, says Judge Bybee. United States v. Holland, __ F.3d. __, 2007 WL 2472543 (9th Cir. Sept. 4, 2007), opinion available here. This will be the lead case on mandatory recusal in the Ninth -- the opinion sets forth a new, three-part "process" for the recusal analysis.

Players: Opinion by Judge Bybee.

Facts: Holland pled guilty to threatening the President. 2007 WL 2472543, *1. Before sentencing, he called the district court judge’s personal residence from jail and left more than one threatening message on a voice machine. Id. The judge declined to recuse himself sua sponte, concluding that this was an attempt to manipulate the criminal justice system. Id. Holland didn’t object to the refusal to recuse. Id. At sentencing, the judge noted Holland’s history of violent crimes and “impose[d] a sentence for the protection of society.” Id.

Issue(s): “We are confronted with a narrow question: When does a judge have an obligation under 28 U.S.C. § 455 to recuse himself sua sponte in response to threats made against him, his family members or associates? Because the issue was not raised before the trial court, we review for plain error.” Id. at *1. “Here we must decide when a judge must recuse himself sua sponte in response to threats even if he would prefer to continue his work on the case.” Id. at *2 (emphasis in original).

Held: “We hold that the district judge reasonably construed Holland's threatening phone message as an attempt to manipulate the court system which did not warrant his sua sponte recusal.” Id. at *1.

Of Note: As noted above, Holland will be the lead decision on the issue of sua sponte recusals in the Ninth. Judge Bybee sets out a three-part “process” that a judge should undertake when a recusal issue comes up. Id. at *3. First, the judge “must evaluate the threat itself to determine how much risk there is that it may be carried out and how much harm there would be if it were.” Id.

Second, the judge must “determine whether he can be truly impartial when trying the case.” Id. at *4.

Third, the judge must apply an “objective” standard, to determine whether “someone who understands all the relevant facts” would perceive a significant risk that the judge will be influenced by the risk. Id. at *4.

How to Use: There are two interesting angles on the Bybee process articulated in Holland. First, the Court emphasizes that this “objective” test is statutorily-required, and that it isn’t from the perspective of the judiciary. Bybee quotes a candid insight from the Seventh Circuit: “We must bear in mind that these outside observers are less inclined to credit judges’ impartiality and mental discipline than the judiciary itself will be.” Id. at *4, quoting In re Nettles, 394 F.3d 1001, 1002 (7th Cir. 2005).

Moreover, a tie goes to the defense. As Judge Bybee explains, “If it is a close case, the balance tips in favor of recusal.” Id. at *4.

Given these rules – and this test – it’s a fair question to ask if this case would have turned out the same way if the defense hadn’t faced the (near)-insurmountable hurdle of plain error review.

For Further Reading: Holland isn’t about whether a judge can recuse him or herself after a threat – the opinion thoughtfully acknowledges recent violence against judges, and emphasizes a court’s discretion to recuse itself when threatened. Id. at *2 & n.2.

The case is instead about when a judge must recuse him or herself after a threat. Not surprisingly, a judge who toughs out a case despite a threat will very rarely be second-guessed. Bomb threats in a RICO trial won’t do it. LoCascio v. United States, 473 F.3d 493 (2007). Being the object of mailed threats won’t do it. United States v. Mattison, 731 F.Supp. 831 (1990). Taking out a contract to murder the judge, however, does trigger the mandatory-recusal statute (despite the judge’s assurance that he harbors no prejudice to the defendant!) United States v. Cerella, 529 F.Supp. 1373, 1381 (S.D. Fla. 1982) (“The circumstances of this case are unique: a defendant persists in a plan to kill the sentencing judge, despite a grand jury investigation of his criminal scheme.”)


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

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US v. Holland, No. 06-30258 (9-4-07). A defendant called and left threatening messages on the judge's home phone. This is not the allocution that usual occurs. The judge brushed off the threats, deeming that they did not affect him, the defendant could not effectuate them, and that, objectively, his impartiality was not at issue. The 9th, in looking at 18 USC 455 (recusal) affirms the decision not to recuse. The 9th's opinion, a paean to impartiality, traces the power to recuse, the reasons for it, and the standards of review. It is a good starting place for that motion. It just did not work here, on appeal, where it was not raised below.

Sherman v. US Parole Bd, No. 05-35364 (9-4-07). When is a warrant not a warrant? Of course when it is a parole violator warrant. No oath or affirmation is necessary because the parole system is administrative, and such a warrant is not statutorily required. This contrasts, the 9th take pains to point out, with the need for a judicial warrant in the case of supervised release, Vargas-Amaya, which is statutorily required. The 4th Amendment does not mandate such compliance in a supervisory scheme.

US v. Braswell, No. 05-35009 (9-4-07). The 9th upholds a procedural bar to petitioner's challenge to the adequacy of the indictment under which he was convicted. The indictment failed to specify the drugs he was trafficking. The evidence was overwhelming, the prejudice nonexistent, and the petitioner failed to challenge such notice pretrial, at trial, or on appeal.

US v. Torres-Flores, No. 05-50898 (9-4-07). The 9th (Kozinski joined by Reinhardt) holds that the +6 level enhancement for "substantial risk of death" in an alien transportation case was error. The defendant tried to smuggle in an alien hidden in the back of a pickup cab, in a crude space that resulted in a "big hump" of carpet. The court found that the enhancement was justified because, if the defendant had gotten into a wreck, a substantial risk of death or injury would have resulted. The 9th reasoned that the "if" part, under these circumstances, was too speculative, and not in line with the factors under the guideline, where the risk had to be more imminent. The alien was not in the trunk, nor faced any greater risk than the driver, unless an accident happened. Interestingly, the 9th focuses on the extent of the enhancement, +6, to say that the magnitude is also a factor to be weighed. (11452).

In dissent, Ikuta argues that the 9th should read the guidelines enhancement liberally and give deference to the district court. Ikuta also takes issue with the magnitude factor in assessing an enhancement.

Congratulations to Matt Shaftel and Vince Brunkow of the Federal defenders of San Diego for the win.

US v. Mitchell, No. 03-99010 (9-5-07). The 9th (Rymer and Silverman) affirmed capital convictions and sentences from deaths arising from the Navajo Reservation in the District of Arizona as "no error requiring reversal occurred . . . ." Dissenting, Reinhardt argues that reversible error occurred in the admission of post-arrest statements, in the tainted jury selection where the only African American juror and only Native American juror were struck for impermissible reasons, and that sentencing was rife with errors.