U.S. v. Brooks, No. 05-30261 (11-29-07). Vouching is bad. The 9th counts the ways in this opinion, although it finds such bolstering ultimately harmless. Still, this is an interesting and useful opinion. The 9th (Guilford joined by Kozinski and Fischer) unequivocally states that the usual questions of a cooperating witness about why they have to tell the truth (i.e. "because I promised and if I lie, the AUSA will tear up the plea and I'll do more time") is vouching and impermissible. This mild form was cured by the court's curative instructions about cooperating witnesses and the overwhelming guilt. The overwhelming guilt (i.e. lack of prejudice) also plays into the excusing the more serious form of vouching that occurred when the government bolstered its wiretap evidence by eliciting testimony about how DOJ and the courts had to approve such an application. This gave the impression that the defendant was guilty as determined by the agency and court. Again, this is excused only because of the overwhelming evidence.

U.S. v. Kriesel, No. 06-30110 (11-29-07). The 9th (McKeown joined by Scwarzer) holds that the amendment that allows DNA collection from all felons on supervised release, even those with nonviolent offenses, passes constitutional muster. The 9th looks to the need to monitor the supervisees, combat recidivism, and the diminished expectation of privacy. Mainly though, according to B. Fletcher in dissent, the 9th permits it with a "shrug of inevitability." B. Fletcher worries that DNA collection does invade privacy and the breach serves no overriding government purpose given that the defendant here is nonviolent (drug offense) and the record does not support such a need.

Doe v. Woodford, No. 06-16154 (11-27-07). This habeas concerned a plea to a sentence of 25 to life for a planned murder. The petitioner, a juvenile, alleges IAC because his lawyer did not undertake additional mental health investigation and that he allowed detectives to interview petitioner. The 9th refuses to expand the COA on these two issues, because two mental health experts, who examined petitioner, found him competent and not suffering from any mental disorder. The interview was designed to foster plea negotiations, which lead to an offer of 25 to life. The 9th considered the one COA issue, whether petitioner had sufficient time to consider the plea, which was held open for two hours (the jury had been selected). The 9th held that it was sufficient as evidenced by the colloquy.

Beaty v. Schriro, No. 05-99013 (11-28-07). Statements made in a jail sponsored therapy session were not involuntary nor were part of a confidentiality agreement. The petitioner here was a member of a group therapy session where, in response to comments directed at him by other inmate participants, he made statements to the supervising treating doctor about how "he didn't mean to kill" the young victim. The 9th affirmed the district court's denial of relief on this ground (the matter was a remand for this purpose).

Case o' The Week: Congress isn't bad enough -- Ninth Limits its Own j/x (Again), United States v. Garcia

Hard to tell, sometimes, who is more eager to strip the Ninth of its jurisdiction to hear criminal appeals -- Congress, or the Ninth itself. See United States v. Adrian Garcia, __ F.3d __, 2007 WL 4096184 (9th Cir. Nov. 19, 2007), decision available here. Garcia is the latest in a string of decisions this year, some good, some bad, where the Ninth wrestles with its own j/x to hear criminal appeals. Unfortunately, the decision falls into the latter category: an opinion that deserves en banc review, either on its own merits or as part of the impending Zavala/Carty discussion.

Players: Decision by Judge Fisher.

Facts: Garcia pleaded guilty to a drug conspiracy with a Federal Rule of Criminal Procedure 11(c)(1)(C) agreement. Id. The deal was for a sentence within the range of twenty-four to forty-eight months. Id. Over Garcia’s objection, the district court attributed nearly five kilograms of conspiracy cocaine to him, resulting in a guideline range of 97 to 121 months. Id. at *2. Nonetheless, the district court honored the (c) deal and imposed a sentence at the high end of the deal’s range: 48 months. Id. at *2. On appeal, Garcia argued the court used the wrong burden of proof to attribute drug quantity and thus started with the wrong guidelines. Id.

Co-D Plascencia-Alvarado had a similar issue: the court put his guidelines at 108-135 months, the defendant asked for 54 months based on Section 3553 factors, and he was sentenced to 60 (at the lower end of the (c) deal’s stipulated range.) “Plascencia-Alvarado appeals this sentence as unreasonable in light of the 18 USC § 3553(a) factors.” Id. “Neither Garcia nor Plascencia-Alvarado expressly waived the right to appeal the district court’s sentence.” Id. at *3 n. 6. [Ed. note: Important fact, to be buried in a footnote . . . .]

Issue(s): “We must decide whether we have jurisdiction to review a sentence that is imposed in accordance with a plea agreement under . . . 11(c)(1)(C) and that is not contingent upon the advisory Sentencing Guidelines.” Id. at *1.

Held: “[W]e hold that we do not have jurisdiction to review a sentence that was imposed pursuant to a Rule 11(c)(1)(C) plea agreement and was not contingent on the guidelines, where the defendant claims only that there was some error in the district court’s calculation of the guidelines or application of Booker.” Id. at *4.

Of Note: With all respect, criminal appellate jurisdiction has been a mess in the Ninth this year. In the horrible Bibler case, the Ninth found that it lacked jurisdiction to review a Montana sentence that everyone – including the government – agreed was flat-out wrong. Though it let this unjust result stand, the Ninth later retracted its language finding it lacked jurisdiction. See United States v. Bibler, 495 F.3d 621 (9th Cir. Jul. 19, 2007).

In July, AFPD Dave Porter secured a great win in Castillo, where Judge Bybee jealously protected the Ninth’s jurisdiction to hear criminal appeals. See United States v. Castillo, 496 F.3d 947 (9th Cir. July 25, 2007) (en banc). As Bybee explained,“Regardless of whether a defendant enters into a conditional plea or an unconditional plea, we retain jurisdiction to hear the appeal. The preclusive effect we give to the plea agreement may depend on the nature of the plea and the circumstances in which it is brought to our attention . . . .” Id. at 957. (emphasis added).

Despite Bibler and Castillo, here, in Garcia, Judge Fisher takes a dangerous jurisdiction-stripping approach that embraces the first (erroneous) Bibler approach, and that seems squarely at odds with the spirit of Castillo (and with the holding in Plouffe). See Plouffe, 445 F.3d 1126, 1130 (9th Cir. 2006) (“Booker also states that ‘the Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range in the exercise of his discretionary power under § 3553(a))’”) (emphasis added) (citation omitted).

This Garcia decision saves an AUSA who foolishly forgot an appellate waiver, id. at *3 n.6, and punishes a pair of defendants who the Court thinks already got a lucky sentencing break, id. at *3. Unfortunately, to (inexplicably) avoid deciding the merits, the Court unnecessarily carves into its own jurisdiction. Not to be cynical, but the Ninth has never reversed a sentence under Booker reasonableness review in a published decision. Why did Garcia have to stretch to forge a new, and unpersuasive, jurisdictional bar, to avoid "reasonableness" review here?

How to Use: While the en banc petition in Garcia is pending, add one phrase in the plea agreement: this deal is “conditioned on a properly-calculated guideline range.” Id. at *3. This phrase would have created j/x in this case (although it is unclear why, in a post-Booker world and post-Plouffe). Of course, good luck getting another 11(c)(1)(C) deal that doesn't include explicit appellate waivers -- they must be using old Wordperfect plea templates at the W.D. of Washington USAO office.

For Further Reading: Recall that the Ninth has Zavala / Carty on its en banc back-burner. See blog here. This pair of cases will address appellate review of Section 3553 challenges (as well as Rita "reasonableness" for an in-guideline sentence). By finding no jurisdiction for § 3553(a) reasonableness review in this decision, Garcia gums the works in those important two cases – hopefully, it will be flipped there, if not sooner.

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

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Search and Seizure Update

The November 2007 version of Developments in Federal Search and Seizure Law is now available on the Oregon Federal Public Defender website here. We have been collecting Fourth Amendment cases for over ten years, integrating defense wins into an outline that provides counterpoints to the trends away from protection of individual rights. The outline is getting pretty long, and we have added a table of cases on the recommendation of users who wanted to be able to go directly to the name of a case.

In reviewing the new cases and updating the outline, I am once again reminded of the two key components of a successful search and seizure motion: development of the facts beyond the police reports through investigation and experts; and creative use of the law beyond the head notes to customize a memorandum in support of suppression. Some of the new cases that we have added to the outline do a nice job of illustrating these points:

• Brendlin: This Supreme Court case holding that a passenger’s Fourth Amendment rights are implicated by a traffic stop – which was already the law in the Ninth Circuit and most other jurisdictions – provides a wonderful restatement of the law of stops, with some excellent language on how a reasonable person – whether passenger, driver, or pedestrian – would feel restricted in their movements by police officer conduct;

• Washington: An important Ninth Circuit case on the totality of circumstances considered for escalation of a voluntary conversation into a stop as well as consent, which included evidence regarding reasonable concerns of African Americans in asserting rights against white police officers;

• Grigg: The Ninth Circuit held that reasonable suspicion of past violation of a noise ordinance, a misdemeanor not involving public safety, did not justify a car stop;

• Flatter: The Ninth Circuit held that a pat-down of a postal worker suspected of theft was unjustified because there was no reasonable suspicion that the suspect was armed or dangerous.

If you spot Fourth Amendment cases you think should be added, please let me know for the 2008 update.

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

U.S. v. Garcia et al, No. 05-30356 (11-19-07). A promise made is the sentence to be paid. A specific stipulated sentence generally is a jurisdictional bar. Defendants here were sentenced pursuant to a stipulated sentencing range under Rule 11(c)(1)(C). The actual sentence was within the range, but towards the high end. The 9th Cir. found the sentence bars an appeal, and divests the court of jurisdiction to challenges to the guidelines and reasonableness. The stipulation settles it. (Although unconstitutional reasons should still allow such an appeal). As for supervised release issues for a codefendant, a financial disclosure condition is appropriate for a drug trafficking offense, especially if there is a leadership role, or a financial laundering aspect. The drug testing number must have a minimum (here one) and a maximum, construed here as three. The court, not the p.o., must set the number.

Case o' The Week: Ninth Bows to State Secrets Privilege (even though Feds blew disclosure), Al-Haramain

A slow week for criminal opinions allows a look at an interesting new case of national importance: Al-Haramain Islamic Foundation, Inc. v. Bush, __ F.3d __, 2007 WL 3407182 (9th Cir. Nov. 16, 2007), decision available here. In Al-Haramain, a very good panel of Hawkins, Pregerson and McKeown (pictured during argument, above) still defers to the government, and uphold the government’s reliance on the “state secrets” privilege. Turns out this privilege applies even though the government had actually disclosed the contested TOP SECRET document to the plaintiff-“terrorist organization” (another reassuring example of the the feds' competence).

Players: Decision by Judge Margaret McKeown.

Facts: After 9/11, Bush authorized warrantless monitoring of international calls in and out of the U.S., that involved suspected Al Qaeda associates. 2007 WL 3407182, *1. The N.Y. Times broke this story in 2005, and there followed a host of voluntary “reassurances” by the Bush administration about the program. Id.

Plaintiff Al-Haramain Foundation is a Muslim charity active in more than fifty countries. Id. at *3. It has also been labeled a “Specially Designated Global Terrorist” by Department of the Treasury, and the U.N. Security Counsel has identified it as an entity belonging to or associated with Al Qaeda. Id. During the “Global Terrorist” designation process in 2004, the feds gave Al-Haramain counsel and directors a document labeled “TOP SECRET.” Id. Based largely on this document (“The Sealed Document”) Al-Haramain brought series of constitutional claims alleging illegal taping in federal court. Id. The district court judge refused to allow Al-Haramain renewed access to the Sealed Document, but permitted reconstruction of its contents from counsels’ memory in affidavits. Id. at *4. The court also rejected the government’s request to dismiss the case as barred by the “state secrets privilege.” (“The state secrets privilege is a common law evidentiary privilege that permits the government to bar the disclosure of information if there is a reasonable danger that disclosure will expose military matters which, in the interest of national security, should not be divulged.”) Id. at *5. The court sua sponte certified the case for interlocutory appeal.

Issue(s): 1. Subject-Matter & State Secrets:. “The government [argues] that the suit is foreclosed by the state secrets privilege, an evidentiary privilege that protects national security and military information in appropriate circumstances.” Id. at *1.

2.Recreation of the Secret Document: “We must . . . address the government’s invocation of the state secrets privilege as to the Sealed Document and its assertion that Al-Haramain cannot establish either standing or a prima facie case without the use of state secrets.” Id. at *10.

Held: 1. Subject-Matter & State Secrets: “In light of extensive government disclosures about the [Terrorist Surveillance Program], the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret . . . Thus, we agree with the district court that the state secrets privilege does not bar the very subject matter of this action.” Id. at *2 (footnote omitted).

2. Recreation of the Secret Document; “[W]e reverse the district court’s order allowing Al-Haramain to reconstruct the essence of the document through memory. Such an approach countenances a back door around the privilege and would eviscerate the state secret itself. Once properly invoked and judicially blessed, the state secrets privilege is not a half-way proposition.” Id. at *2.

Of Note: This case involves solely international surveillance, though the opinion dryly observes that there have been allegations of warrantless domestic wiretapping as well. See id. at *2 & n.1, quoting Leslie Cauley, NSA Has Massive Database of Americans’ Phone Calls, USA TODAY, May 11, 2006 at A1.

How to Use: Al-Haramain is primarily of legal interest to those select few who do terrorist and FISA cases. The way the case handles the state secret privilege, however, is of evidentiary interest – and concern – beyond this narrow context. This is a thoughtful panel (McKeown, Hawkins, and Pregerson), generally suspicious of broad claims of government privilege. Nonetheless, the Court effectively holds that the “state secret” privilege can’t be waived. Id. at *2. Thus, although in this case the warrantless surveillance might well have been illegal, and although Al-Haramain knows that it had been subject to wiretaps because of inadvertent disclosure of the Secret Document, Al-Haramain can’t repeat what it read in the Secret Document and survive in its suit. Beware of the government trying to import this troubling deference into normal “vanilla” claims of privilege, like Roviaro litigation.

For Further Reading: For a candid and intriguing take on this case by one of the plaintiff’s attorneys, and an interesting theory on the British role in the surveillance in this case, visit his blog here. For a general summary that purports to present both sides of the issue, see a long post here (includes photos and videos of the counsel and judges in the case).

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

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Case o' The Week: Ninth Can't Cope with Forced Meds on Supervised Release,

Forced medication (like chemical castration) to discourage criminal behavior and ensure good citizenship? Sound like A Clockwork Orange? Judge Thomas and the Ninth thinks so too -- in a particularly thoughtful decision that discusses the important liberty interests implicated by mandatory medication as a condition of supervised release. See United States v. Cope, __ F.3d __, 2007 WL 3243931 (9th Cir. Nov. 5, 2007), decision available here.

Players: Fought tooth and nail, with many important victories, by CD Cal AFPD Elizabeth Newman.

Facts: Fifty-eight year old Cope had a prior conviction for attempted sexual assault on a child. 2007 WL 3243931, *2. Twenty years later, sheriffs found on Cope’s computers twenty videos and over six hundred images of child porn, including S&M. Id. at *1. After a guilty plea the district court gave ten years custody and supervised release for life (based on a guideline), imposed conditions of supervised release that included polygraph, penile plethysmograph, and Abel testing, and ordered Cope take all prescribed medication. Id. at *2 [Subtext – chemical castration. See id. at *7 n.5].

Issue(s): “[W]e consider . . . whether the . . . imposition of a lifetime of supervised release was reasonable and whether the district court was required to articulate findings before imposing certain special conditions of supervised release pertaining to medication.” Id. at *1.

Held: “Under the circumstances presented by this case, we conclude that the term of supervised release imposed was reasonable, but that the district court should have articulated findings before imposing special conditions of release that would implicate a particularly significant liberty interest.” Id. at *1.

Of Note: As an initial matter, Cope has valuable language on the need to strictly construe terms of plea agreements against the drafter – the government. Id. at *4. The case is also one of the first Ninth Circuit decisions on the need to articulate Section 3553 factors post-Rita. Id. at *4-*5

This Judge Thomas decision is characteristically well-reasoned and written. In an important new rule, he describes the heightened liberty interest in avoiding forced medication, and holds that this interest extends to conditions of supervised release. Id. at *7. When “take your meds” is a condition of supervised release, there must be special findings, the drugs must be related to the offense conduct, and it must be tied to the Section 3553 analysis. Id. at *7-*8.

Cope also reaffirms Judge Berzon’s Weber rule, that requires special findings before plethysmograph testing. Id.

Finally, the decision solidifies notice protections: when a court imposes conditions of supervised release that are neither mandatory, or recommended in the guidelines, advanced written or oral notice must be provided to the defense. Id. at *6.

How to Use: One disappointment in Cope is the Court’s tolerance of lifetime supervised release for simple possession of child porn. Id. at *5. First, a new rule: the Court reviews “for reasonableness the district court’s decision to sentence” a defendant to a particular term of supervised release. Id. at *5. Under that deferential review, Judge Thomas (perhaps reluctantly?) upholds this inane term of supervision in this case. [ed. note: felons in possession get three years supervised release, as do bank robbers – but straight possession of porn gets life?]

Note that there are important facts in Cope that may be distinguishable in future cases: i. Cope had a contact sex prior, ii. he demonstrated a sexual interest in minors for a two-decade span, iii. Cope will be as old as Senator McCain on his release from prison, so a specific term supervised release would be akin to a life sentence anyway. Id. at *5. Cope is not a blank check for lifetime supervised release on straight porn possession cases – keep the fight alive.

For Further Reading: Judge Sidney Thomas’ decisions – and too-frequent dissents – are always worth a read. They are persuasive, and his opinions are typically many decades hipper that those of his colleagues on the bench. For example, in Cope he offers a wry and chilling reference to A Clockwork Orange when contemplating the prospect of chemical castration as a condition of supervised release. Id. at *7 n.5. In Kelley, his (correct) dissent cites a classic Monty Python skit to explain e-mail spam. See Kelley blog here. As a bonus, Judge Thomas is usually right – he “gets” technology, truly believes in the Fourth (see Comprehensive Drug Testing, 473 F.3d 915, 944 (2006) (correct again!)), and often joins the likes of Berzon, Paez, Pregerson, Reinhardt, and Wardlaw. Plus, he’s got the best vinyl collection in the Ninth.

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

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U.S. v. Gamboa-Cardenas, No. 05-50151 (11-8-07). The "safety valve" sinks in the jurisdictional Maritime waters. Defendants were convicted of drug crimes under the Maritime Drug Law Enforcement Act. The sentencing court applied the safety valve to the mandatory minimums, then codified at 46 USC 1903. On appeal, the 9th (Smith and Kleinfeld) hold that the safety valve statute, 18 USC 3553(f), unambiguously does not apply to the offense because it is not expressly included in either the safety valve statute nor in 21 USC 960(a). If it is not enumerated, then the statutory canons sink its application. Furthermore, the 9th finds that the legislative construction and history do not support treating 1903 offenses as the same as 960 offenses. In dissent, Fisher argues that the reading of the statute is not so clear. Section 1903 read that it should be punished like section 960, and all offenses in 960 get the safety valve. Fisher would find that it is ambiguous, and that policy supports application.

It is hoped this goes en banc.

U.S. v. Gooch, No. 06-30645 (11-1-07). The 9th holds that "police possessing a valid bench warrant for the arrest of a person who has failed to appear may enter the person's residence to the extent necessary to execute the warrant." The police stopped a car and while investigating, a passenger, known to the police from a prior fled. The police learned there was a warrant for him for failure to appear, and so went to his address. The police entered the apartment listed on the warrant, and in the search found evidence of drugs in the bedroom and in the room rented by the defendant here. This lead to a warrant being issued to search the apartment, which was done later, and guns were found in the defendant's bed. The 9th took the approach of the 2nd Circuit that a neutral magistrate issued a warrant for probable cause for an arrest, and that satisfies the requirement of Payton 445 U.S. at 603.

U.S. v. Gonzales, No. 04-30007 (11-5-07) (en banc). The 9th, sitting en banc, clarifies that a suspended sentence is not a term or sentence of imprisonment. It makes clear that the language "term of imprisonment" in USSG 4A1.2(c)(1) refers only to certain non-felony sentences for which the defendant actually served a period of imprisonment. This is supported by the commentary and language of the Guidelines as a whole. In dissent, Ikuta, joined by Bybee and Bea, argue that the terms "sentence of imprisonment" and "term of imprisonment" must mean separate things and can be distinguished, especially as the latter refers to non-felony sentences. The dissent believes that the Commission knew what it was doing.

Congratulations to AFPDs Tracey Staab and Rebecca Pennell of the Fed Defenders of E. Wa. and Idaho.

U.S. v. Cope, No. 06-50441 (11-5-07). The defendant appealed the imposition of lifetime SR. He argued that it was unreasonable, and in addition that the conditions were not justified nor supported. The defendant had a prior child sexual assault when he plead to possession of child pornography. The court sentenced him to 120 months and imposed lifetime SR, with special conditions of various sexual testing and requirements to take medication. The 9th (Thomas joined by Fisher and Gould) held that lifetime SR was reasonable (the defendant was 58). The 9th reasoned though that the court failed to justify penile plethysmograph and Abel testing given the Weber decision, and the high rate s of error and other conditions that could be imposed. Likewise, the requirement to take all medication without specifying what medication, or for what purpose, was also overboard. The court needs to justify and explain the bases for its special conditions. The 9th also stressed that no notice was given and that was error as well because the conditions were not standard. The 9th, lastly, interpreted the plea as allowing the appeal because the lifetime SR was beyond the contemplation, arguably, of the plea and Guidelines at the time.

Case o' The Week: Ninth Restrains Ratched, Important Involuntary Med Decision in Hernandez-Vasquez

With all of the sensitivity and care of the charming Nurse Ratched (left), the federal government and the BOP routinely seek to involuntary medicate our incompetent clients. In a thorough and thoughtful decision that will be the leading case on the issue, visiting ND Cal District Judge Fogel provides a complete analysis on Sell proceedings and articulates many important new Ninth Circuit rules on the procedure. See United States v. Hernandez-Vasquez, __ F.3d __, 2007 WL 3171422 (9th Cir. Oct. 31, 2007), decision available here.

Players: Authored by ND Cal D.Ct. Judge Fogel, sitting by designation.

Facts: Hernandez-Vasquez faced illegal reentry charges. 2007 WL 3171422, *1. He was found incompetent and sent to the BOP for restoration of competency. Id. The government moved for involuntary medication to render him competent to stand trial, or alternatively for a dangerousness evaluation (the defendant had some assault and sex priors). Id. The district court ordered involuntary medication for competency. Id. (ed. note: At the government's urging, the district court made now findings about involuntary medication on the theory of "dangerousness.") The defendant appealed the order authorizing involuntary medication.

Issue(s): 1. Dangerousness: “[W]e must address a threshold question: Whether the district court had an obligation to apply Harper and make a dangerousness inquiry before proceeding under Sell.” Id. at *3.

2. Standard of Review: “Neither the Supreme Court nor this circuit has specified the standard of review applicable to a Sell order.” Id. at *4.

3. Sell Orders and Specific Meds: “Sell does not identify a requisite degree of specificity concerning the drugs to be used for involuntary medication.” Id. at *5.

4. “Seriousness” of present charge: “[W]e offer some guidance to the district court regarding the proper framework within which to analyze [the question of whether the government’s interest in prosecuting the defendant under § was insufficient to justify involuntary medication.]” Id. at *6.

Held: 1. Dangerousness: “[P]rior to undertaking the Sell inquiry, a district court should make a specific determination on the record that no other basis for forcibly administering medication is reasonably available. If a district court does not conduct a dangerousness inquiry under Harper, it should state for the record why it is not doing so.” Id. at *3.

2. Standard of Review: “[We] review the district court’s determination with regard to [the seriousness of the underlying crime] de novo, and the remaining Sell factors for clear error.” Id.

3. Sell Orders and Specific Meds: “[W]e hold that a Sell order must provide some limitations on the specific medications that may be administered and the maximum dosages and duration of treatment. At a minimum, to pass muster under Sell, the district court’s order must identify: (1) the specific medication or range of medications that the treating physicians are permitted to use in their treatment of the defendant (2) the maximum dosages that may be administered, and (3) the duration of time that involuntary treatment of the defendant may continue before the treating physicians must report back to the court on the defendant’s mental conditions and progress.” Id. at *6.

4. “Seriousness” of present charge: “[T]he likely guideline range is the appropriate starting point for the analysis of the crime’s seriousness. It is not, however, the only factor that should be considered. . . . [A]t least under some circumstances, a violation of § 1326 may constitute a ‘serious’ crime sufficient to justify involuntary medication under Sell.” Id. at *7. “[T]he district court should remain mindful of the Supreme Court’s distinction between the purposes and requirements of involuntary medication to restore competency and involuntary medication to reduce dangerousness. It should take care to separate the Sell inquiry from the Harper dangerousness inquiry and not allow the inquires to collapse into each other.” Id. at *8.

Of Note: As shown from the multiple issues and the many new rules above, this decision is now the model for Sell litigation in the Ninth. In any case involving involuntary meds, start here.

How to Use: There’s much to commend in this decision. First, district courts can’t simply punt treatment to the discretion of BOP shrinks – the case requires detail and specificity in involuntary med orders.

Second, the government can no longer sneak “dangerousness” arguments into Sell hearings. The case forces the government to proceed out of the gate with separate Harper dangerousness proceedings and demands that Sell hearings be distinct.

Unfortunately, using (advisory) guidelines to gauge “seriousness,” and tolerating a § 1326 prosecution as a “serious” case, is a blow to the defense – but be sure to carefully read the extensive limiting language on this holding. See id. at *7-*8.

For Further Reading: Judge Fogle was executive director and directing attorney of the Mental Health Advocacy Project before coming onto the bench. See article here. His expertise shows in this detailed and comprehensive decision.

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

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