Saturday, June 30, 2007

Case o' The Week: No Prior, Restraints, in Norbury

Mandatory-minimum statutes generate some of the worst injustices in federal sentencing: a situation not helped by Judge Beezer's recent decision in United States v. Norbury, __ F.3d __, Slip. Op. 7071 (9th Cir. June 25, 2007), decision available here. In Norbury, the Ninth (Beezer (left), Fisher, Tallman) holds that a prior state drug conviction can be used to trigger a mandatory minimum sentence -- even though the drug conviction had been dismissed, with prejudice!

Players: Judge Beezer authors, Fisher and Tallman on panel.

Facts: Norbury was charged with a bevy of federal meth offenses, and was convicted after trial. Slip Op. at 7608-09. At sentencing, he objected to the government’s reliance on a state felony drug conviction to create a 20 year mandatory minimum. Id. at 7609. That drug prior had been dismissed – with prejudice – by the state court. Id. at 7610. The district court rejected his challenge, and imposed 20-year mand-min sentences run concurrently. Id. at 7609.

Issue(s): “Norbury argues that the district court erred in enhancing his sentence under 21 USC § 841 based on a prior conviction because the conviction was later dismissed with prejudice by the state court.” Id. at 7610.

Held: Whether a defendant’s prior state conviction was a ‘conviction’ within the meaning of a federal statute is a question of federal, not state, law unless Congress provides otherwise.” Id. at 7610-11. “The meaning of the term ‘conviction’ in § 841 . . . remains a question of federal law.” Id. at 7611. “Our sister circuit courts that have addressed the issue agree that a deferred, expunged, or dismissed state conviction qualifies as a prior conviction under § 841.” Id. at 7611. “Norbury argues that a dismissal differs from expungement and alters the legality of a prior conviction by invalidating the underlying charges. We disagree.” Id. at 7612. “The district court properly concluded that Norbury’s dismissed state conviction qualifies as a prior conviction under 21 USC § 841.” Id.

Of Note: The panel neatly punts on another real issue is this case: whether the government has the burden of proof to prove the existence of a prior conviction beyond a reasonable doubt. See Shepard v. United States, 544 U.S. 13, 27 (2005) (Thomas, J., dissenting) ("Almendarez-Torres, like Taylor, has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.") Instead of grappling with this challenging issue, the decision assures us in a footnote (!?!) that the government’s burden of proof is “irrelevant in this case.” Norbury, Slip Op. at 7610 & n.2.

The decision highlights a tremendous inequity in how priors play out in federal cases. It explains that after the Supreme Court decision in Dickerson v. New Banner Ins., Inc., 460 U.S. 103 (1983), Congress amended the gun control statutes to allow the term “conviction” to be determined in accordance with the law of the jurisdiction in which the proceedings were held – in other words, state law. Id. at 7611. Congress did not so amend the drug statutes after Dickerson. Id. Therefore, a prior “conviction” that doesn’t count under state law for a federal gun charge will qualify as a predicate for a drug case, under federal law. Id. Moral? Don’t sell drugs; carry guns.

How to Use: Not much light in this dark tunnel of a decision. The panel repeated Dickerson 's speculation that a prior conviction’s legality may be affected by actual innocence or trial error. Id. at 7612. So, all you need to do is prove that your client was actually innocent of the state prior – you may avoid the federal mandatory minimum if you do. Id. at 7612. Sarcasm aside, note that Norbury’s state prior appears to have been dismissed because he successfully completed the “terms and conditions” of his sentence. Id. If the defendant’s state dismissal was less – ministerial – a future client may want to take a shot at distinguishing Norbury. With twenty years, or life, at stake, what’s the down side of such a challenge?

For Further Reading: Families Against Mandatory Minimums (FAMM) has one of the best web sites on mand-mins in both the federal and state systems, and work on legislation to repeal them. See FAMM site here. For a useful summary of crack-cocaine legislation now pending in Congress, visit FAMM’s web page here. The Sentencing Commission has sent a report to Congress urging reform for crack cocaine sentencing: it can be found here.

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


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Wednesday, June 27, 2007

US v. Diaz, No. 06-30029 (6-22-07). Should evidence be suppressed if no one is home? No, said the 9th (Clifton joined by Farris and Bea), because the police had an arrest warrant and it was reasonable to believe that he was in the house at the time. The defendant, with a record of violent priors, ran an auto repair business from his home. The house and yard were protected by dogs and cameras. The police had "visited" him several times over the past months (gee, the police can be sooooo friendly) and he had told them that he was always there. The day they got the arrest warrant and went to arrest him, he was not. It appeared that he was but he had actually gone to a casino. The police knocked, and then entered, where upon they saw contraband. The 9th affirmed the denial of suppression because the police acted reasonably under the circumstances.
US v. Norbury, No. 06-30328 (6-25-07). The 9th affirmed convictions for meth drug trafficking and sentencing. The 9th found that the sentencing was properly enhanced under 21 USC 841 for a prior drug conviction even though the state had dismissed the conviction for complying with the terms of the sentence. The definition of a "prior conviction" under 841 is determined by federal law, and the federal definition counts prior dismissed state convictions if the reason was for compliance with conditions and did not go to guilt or innocence.

Monday, June 25, 2007

US v. Garner, No. 06-10417 (6-18-07). Do despicable acts, committed 35 years before the present offense, still constitute a pattern? Yes, at least when it comes to sex. Defendant was sentenced to 262 months on child pornography charges. The court gave a 5-level enhancement for engaging "in a pattern of activity involving the sexual abuse or exploitation of a minor." The pattern was sexual abuse of two of his own or step-children. Despite being three and a half decades old, the 9th (Hawkins joined by B. Fletcher and Siler) finds no due process problem. The 9th comments that the guidelines do not have a temporal limitation, but is purposely broad. The argument that it is a due process violation fails, according to the 9th, because this use of prior patterned conduct is not an arbitrary distinction. The Commission, reasons the 9th, could decide to punish more severely those have previously engaged in sexual exploitation of children. The 9th also comments that recidivism is high among sex offenders. As for the second argument about reasonableness, the 9th finds that on these facts, the decision is not unreasonable given the expressed needs to protect the community and children.

US v. Washington, No. 06-30386 (6-19-07). The 9th suppresses evidence because a voluntary consent of search of person turned involuntary, and became a seizure which lead to an unconsensual search of a car. The 9th (Gould joined by Paez and Rawlison) focused on the fact that defendant did what he was told in his initial encounter with the police. The defendant was in a car, and the police came up and wanted to ask him questions. He said "sure," and then consented to a search of himself. The police at this time did a thorough search, and position themselves in a way that he was blocked from his car. The 9th also looked at the circumstances of race relations in Portland, where there had been racial tensions between the police and the African American community, and pamphlets had been distributed on how to act without risking being shot (the defendant was aware of the pamphlets and acted accordingly). The circumstances were such that the 9th concluded that the defendant did not feel free to leave after the consensual search and therefore the consent to search the car was not consensual. This opinion does a nice job of applying the five factors for consent set out in Soriano, No. 361 F.3d 494 (9th Cir. 2004).

Congratulations to AFPD Lisa Hay of D.Oregon for the nice win.

US v. Ankeny, Sr., No. 05-30457 (6-19-07). The 9th affirms suppression of evidence but remands for resentencing because the convictions were multiplicitous and material errors occurred. In this case, Portland police invaded defendant's home, firing in flash-bang devices that gave defendant second and third degree burns, shooting out ten windows with rubber bullets, and lighting a mattress on fire, breaking doors, and causing $14,000 of damage. Defendant argued that the search was unreasonable. The majority (Graber and Tashima) said "so what," because there was no Fourth Amendment violation because the police had a valid warrant, and suppression had to be tied to the Fourth Amendment. There was a nexus between the warrant and the evidence, and the search (guns in chairs etc). Any remedy for unreasonableness could be sought through 1983 and a Bivens action. Reinhardt dissented on this point, vigorously arguing that the police action was so over-the-top and excessive that it was unreasonable and that suppression was called for. His concern was that a warrant would excuse any search. The majority responds that this interpretation is too strident, and that the warrant had a strong nexus to the contraband. The 9th all found that Hudson, the recent Supremes case on knock-and-announce, foreclosed finding suppression as a remedy. The 9th held that the gun counts were multiplicitous because the indictment did not allege that the weapons were alleged to have been purchased or possessed separately or at different times. The 9th also found that the priors all qualified. The court erred in applying the career offender to all counts and should have only been applied to the unregistered shotgun.

Saturday, June 23, 2007

Case o' The Week: Portland, Washington Fourth Amendment Victory

AFPD Lisa Hay brings home a great Fourth Amendment win, with a carefully-reasoned Judge Gould decision on a Portland stop. The case discusses pamphlets distributed to a community particularly sensitive to police violence, and is of particular interest for its examination of the reasonable fear of the defendant when "consent" was given. See United States v. Washington, __ F.3d __, Slip. Op. 7255 (9th Cir. June 19, 2007), decision available here.

Players: Great victory by Portland AFPD Lisa Hay. Decision by Judge Gould (right).

Facts: African-American defendant Bennie Washington was sitting in a lawfully-parked car in Portland, when he was approached by a white cop. Slip. Op. at 7260. The cop came up on Washington, shined his light in the car, and asked what he was doing. Id. The cop asked for consent to search the defendant: he agreed. Id. The cop then asked Washington to step out of and away from the car, and asked for consent to search the car. Id. Washington agreed, the cops found a gun. Id.

In the year and a half before this stop, Portland cops had shot and – in one instance, killed – African Americans during traffic stops. Id. Portland police had distributed pamphlets on how to respond to stops, which directed citizens to “follow the officer’s directions” when stopped and “if ordered, comply with the procedures for a search.” Id. at 7262. Washington was charged with § 922(g); the district court refused to suppress the gun concluding that Washington was not “seized,” and that he had voluntarily consented to the search. Id.

Issue(s): “Washington argues that the district court erred when it denied his motion to suppress because he was illegally seized by [the officers]. Washington also argues that even if he was not seized, the district court clearly erred in finding that he voluntarily consented to the search of his car.” Id. at 7263.

Held: “Although Washington voluntarily consented to the search of his person, we conclude that the encounter then escalated into an impermissible seizure. And even though Washington thereafter consented to the search of his car, during which the firearm was discovered, we conclude, contrary to the district court, that Washington’s consent was not voluntary. Alternatively, the search of Washington’s car and the firearm discovered therein were ‘fruits of the poisonous tree’ that followed in an immediate unbroken chain from his illegal seizure, and Washington’s consent to the car search did not purge the taint of his illegal seizure.” Id. at 7259-60.

Of Note: Judge Gould carefully dissects each temporal slice of the stop, and surveys a great deal of Fourth Amendment law on the way. Was the initial contact a “seizure?” No, explains Gould: “the Fourth Amendment is not implicated when law enforcement officers merely approach an individual in public and ask him if he is willing to answer questions.” Id. at 7263. Was Washington seized when the officer told him to leave the car, and asked for consent to search? No, explains Gould: “a reasonable person in Washington’s situation would have understood that the police officer might ask him to exit the vehicle in order to conduct the search because of valid concerns for officer safety.” Id. at 7265. Ultimately, however, the defense prevails because the consent search degenerated into a seizure – particularly because the pamphlets had ordered citizens to comply with cops’ orders. Id. at 7266-68.

How to Use: Don’t limit Washington to this “pamphlet” scenario. This opinion is an exhaustive review of the tests and factors necessary to thread the Fourth Amendment needle and win a suppression search. See, e.g., id. at 7271-76 (discussing “fruits of poisonous tree” analysis). It’s worth a close read as a roadmap for a suppression challenge.

Washington is also a helpful reminder that a Fourth Amendment challenge requires slicing an entire encounter into precise temporal events. AFPD Lisa Hay refused to be cowed by two consents (person and car) in this case – by focusing the Court on each time segment, she brought home a case-dispositive win.

For Further Reading: While it’s not clear that this is the pamphlet involved in this case, the Portland Police Department still has internet “advice” for its citizens on how to submit to police demands. See Portland Police Department website here. The web page helpfully explains that Portland cops can stop a person “on the street if they observe a violation, if they are investigating a complaint or they believe the person has or is about to commit a crime.” (Terry stops, one assumes). Portland citizens shall “[i]f ordered to do so, comply with the procedures for a search.” Id.

Maybe worth a visit to the local gendarmes’ web site before your next Fourth Amendment motion?

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


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Thursday, June 21, 2007

(Not so Lovely) Rita: Non-binding presumption of reasonableness for non-binding guidelines doesn't violate non-binding constitution . . .

One shoe has dropped: Justice Breyer this morning explained that a non-binding appellate presumption that a guideline sentence is "reasonable" does not violate the Sixth Amendment. See Rita v. United States, 551 U.S. __ (June 21, 2007), decision available here. A good decision for Yankees fans suffering disparate sentences compared to Red Sox advocates -- pretty lousy for everyone else.

Zavala-Carty will be coming down by 3:52 this afternoon . . . .

Justice Breyer authors main decision, joined by Roberts, Stevens, Kennedy, Ginsburg, and Alito.

Stevens concurs, sort of, joined by Ginsburg, sort of.

Scalia and Thomas concur, but really dissent.

Souter dissents (and speaks truth to power on what the decision really means for sentencing practice).

Facts: Victor Rita was charged with a variety of crimes arising from false statements he made before the grand jury, in relation to the purchase of a kit to make a machinegun. Rita v. United States, 551 U.S. __, Slip. Op. 1-2. (June 21, 2007). He was convicted after trial of perjury, making false statements, and obstructing justice. Id. at 2. The PSR provided a guideline calculation that put Rita at 33-41 months. Id. at 4. At sentencing, the defense argued for a lower sentence, based on -- among other things -- Rita's prior "government criminal justice" work, his military experience, and poor health. Id. at 5.

The district court framed the sentence as proceeding down one of two tracks. Either the defense was asking for a departure from the guideline range, or he was asking for a below-guideline sentence based on the 18 USC 3553(a) factors (a "Booker" sentence). Id. at 5-6. The district court found that neither course was "appropriate," and sentenced to thirty-three months. Id. at 6. Rita appealed.

The Fourth Circuit affirmed the sentence, stating, "a sentence imposed within the properly calculated Guidelines range . . . is presumptively reasonable." Id. at 6.


1. Is a sentence within the properly calculated Guidelines range presumptively reasonable?

2. Does an appellate presumption of reasonableness violate Sixth Amendment rights, as stated in Apprendi and Booker?

3. To what extent must a district court explain his or her reasoning at sentencing, and was enough done here?

4. What this sentence, "reasonable?"


1."The first question is whether a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines. We conclude that it can." Id. at 7.

2. "A nonbinding appellate presumption that a Guidelines sentence is reasonable does not require the sentencing judge to impose that sentence. Still less does it forbid the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone. As far as the law is concerned, the judge could disregard the Guidelines and apply the same sentence (higher than the statutory minimum or the bottom of the unenhanced Guidelines range) in the absence of the special facts (say, gun brandishing) which, in the view of the Sentencing Commission, would warrant a higher sentence within the statutorily permissible range. Thus, our Sixth Amendment cases do not forbid appellate court use of the presumption." Id. at 14.

3. "In the present context, a statement of reasons is important. The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision making authority. See, e.g., United States v. Taylor, 487 U. S. 326, 336–337 (1988). Nonetheless, when a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation." Id. at 17.

4. "We turn to the final question: Was the Court of Appeals, after applying its presumption, legally correct in holding that Rita’s sentence (a sentence that applied, and did not depart from, the relevant sentencing Guideline) was not“unreasonable”? In our view, the Court of Appeals’ conclusion was lawful." Id. at 20.

Worthy of Note: The most important aspect of the decision is that Justice Breyer repeatedly emphasizes that this is only an appellate presumption of reasonableness. A district court may not presume that the guidelines are the correct sentence: he or she must start from scratch and consider all of the Section 3553(a) factors. "We repeat that the presumption before us is an appellate court presumption. Given our explanation in Booker that appellate “reasonableness” review merely asks whether the trial court abused its discretion, the presumption applies only on appellate review." Id. at 11. "In determining the merits of these arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply." Id. at 12.

Justices Scalia and Souter offer some refreshing doses of reality as they opine whether district court judges will appreciate this distinction. See, e.g., Rita, (Souter, J., dissenting) at 7 ("Without a powerful reason to risk reversal on the sentence, a district judge faced with evidence supporting a high subrange Guidelines sentence will do the appropriate fact finding in disparagement of the jury right and will sentence within the high subrange. This prediction is weakened not a whit by the Court’s description of within-Guidelines reasonableness as an “appellate” presumption, ante, at 11 (emphasis deleted). What works on appeal determines what works at trial, and if the Sentencing Commission’s views are as weighty as the Court says they are, see ante, at 8–12, a trial judge will find it far easier to make the appropriate findings and sentence within the appropriate Guideline, than to go through the unorthodox factfinding necessary to justify a sentence outside the Guidelines range, see 18 U. S. C. §3553(c)(2) (2000 ed., Supp. IV).")

Also, note Justice Breyer's odd "retail" and "wholesale" description of how sentencing guidelines are made and implemented. This presumably makes the Guideline Commission the Costco of sentencing -- enjoy your Kirkland guideline range, "tailor made" for a just sentence.

How to Use: First, ignore the dissenters' (and our) cynical predictions, take Justice Breyer at his word, and rail against a district court's presumption that the guideline sentence is the reasonable course. That is the technical holding of the decision, even if we all know that the reality of practice is actually going to veer toward the "gravitational pull" of the guidelines post-haste.

Second, note that there are a fair share of outstanding issues left open in the opinion. Justice Scalia nicely flags the possibility of an "as applied" Sixth Amendment challenge -- let's start raising it. Rita, (Scalia, J., dissenting) at 8-9.

Finally, Justice Breyer describes what should happen at sentencing: the court should impose a guideline sentence, or a Section 3553(a) sentence, or a "different sentence regardless." Rita, Slip Op. at 12. This intriguing little reference to Rule 32(f) may be worth some exploration (odd reference, as noted in the comments below).

For Further Reading: What is a "mine-run?" It's used three or four times by several different justices. Is it just me, or is that a weird term? Guess it means, "run of the mill." See web dictionary here.

Also, there is much odd debate in the decision about higher sentences imposed for Yankees fans, and leniency for Red Sox advocates. See, eg., id. at 6. ("After all, a district judge who gives harsh sentences to Yankees fans and lenient sentences to Red Sox fans would not be acting reasonably even if her procedural rulings were impeccable.") Justice Scalia is apparently a Yankees fan, so Justice Breyer takes a zing or two. See Professor Berman's blog, here. Nothing like a few East Coast inside jokes to make a bitter Booker pill more palatable -- our clients who are pounded with "reasonable" guideline sentences just can't stop laughing . . . .

Finally, for a quaint, old-fashioned protest that there was actually a human-being involved in this case, and one who deserved a lower sentence, see Justice Stevens' concurrence at 8 (from which Justice Ginsburg carefully distances herself). Poor Justice Stevens -- he's stuck on that old chestnut that the person before the district court actually matters at sentencing. Of course, the real issue is how hard the Sentencing Commission is working to cook up reasonable sentences. See Rita, (Breyer, J.) (describing heroic struggles of the Sentencing Commission to divine guideline ranges).

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


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Tuesday, June 19, 2007

Certiorari Needed To Address Expansion Of Almendarez-Torres From The Fifth To The Sixth Amendment

In two recent cases, stare decisis became a dead letter for those advocating that Sixth Amendment rights apply to the characteristics, sequence, and existence of prior convictions that increase statutory maximums. In dicta, Justice Alito mischaracterized Almendarez-Torres as a Sixth Amendment case in a footnote in James. Then the Ninth Circuit en banc Grisel case found no constitutional doubt regarding the failure to prove prior convictions because Almendarez-Torres not only held that prior convictions need not be alleged under the right to indictment but need not be "proved to a jury, or admitted by the defendant." As previously blogged here, the Supreme Court should grant certiorari to bring clarity to this exceptionally important area of the law.

Almendarez-Torres Is Solely A Fifth Amendment Indictment Case

The Almendarez-Torres holding only purported to address the Fifth Amendment right to indictment. In that case, the defendant raised the failure of the indictment to include the prior conviction that increased the statutory maximum for illegal reentry from two to twenty years. The Court noted that, because he admitted the prior three times during the plea colloquy, "Petitioner makes no separate, subsidiary standard of proof claims with respect to his sentencing," and therefore "we express no view on whether some heightened standard of proof might apply...."

In the following Term, the Supreme Court addressed a Sixth Amendment claim in Jones that the increase of statutory maximum under the car-jacking statute for bodily injury required a finding by a jury beyond a reasonable doubt. Because the statute was ambiguous, the statute could be construed to require Sixth Amendment compliance without reaching the ultimate constitutional question. The dissenters claimed that the Doctrine of Constitutional Avoidance could not apply because Almendarez-Torres found the canon inapplicable. The Jones majority, in applying the Doctrine of Constitutional Avoidance to the statute, rejected dissenter’s argument because Almendarez-Torres "stands for the proposition that not every fact expanding a penalty range must be stated in a felony indictment" whereas "we are concerned with the Sixth Amendment right to jury trial and not alone the rights to indictment and notice as claimed by Almendarez-Torres." This distinction especially makes sense given that grand jury rights are not even incorporated into the Due Process Clause (Hurtado), while the right to jury trial and the reasonable doubt standard are fundamental requirements for incarcerating our fellow humans (Duncan; Winship).

Then Apprendi came down in a case in which the statute unambiguously required harsher punishment based on a judge-made finding by a preponderance of racial animus. The Supreme Court incorporated the Jones constitutional concerns and required Sixth Amendment compliance regarding factors that increased the statutory maximum. The Court left the Sixth Amendment question regarding prior convictions open: the general rule included an exception for prior convictions, but also included the requirement that Almendarez-Torres be treated as "a narrow exception to the general rule..." Because Apprendi did not involve prior convictions, and because Apprendi did not involve the federal right to grand jury indictment, as did Almendarez-Torres (footnote 3), the Sixth Amendment question regarding prior convictions did not need to be addressed. As Chief Justice Reinquist stated in Cobb, "Constitutional rights are not defined by inferences from opinions which did not address the question at issue."

After Apprendi, Almendarez-Torres continued to be undercut. In Ring, the Court decisively rejected the sentencing factor/element distinction for the purposes of Sixth Amendment analysis, despite its application in Almendarez-Torres. In two cases, the Supreme Court explicitly ruled that application and extension of Almendarez-Torres involved serious constitutional questions to be avoided if possible under the Doctrine of Constitutional Avoidance (Haley; Shepard). And just this Term, the Supreme Court in Cunningham’s footnote 14 explicitly rejected the contention that Sixth Amendment analysis should differentiate between offense and offender characteristics.

How Did Almendarez-Torres Become A Sixth Amendment Case?

In James, the Court split 5-4 along unconventional lines in holding that, under the Armed Career Criminal Act, attempted burglary under Florida law qualified as a predicate "violent felony." Justice Alito’s opinion drew a strong dissent from Justice Scalia regarding the rules of statutory construction and the rule of lenity. Mr. James only raised a statutory issue but asserted that, even though he admitted his prior convictions in his guilty plea, Apprendi favored his construction. In a footnote, Justice Alito pointed out the admission regarding prior convictions, then added: "[I]n any case, we have held that prior convictions need not be treated as an element of the offense for Sixth Amendment purposes," citing Almendarez-Torres.

Given the plain language of Almendarez-Torres disclaiming any Sixth Amendment holding, given the holding of Jones that Almendarez-Torres is only an indictment case, given the holding of Apprendi that Almendarez-Torres must be narrowly construed, and given the holdings of Haley and Shepard that application and extension of Almendarez-Torres should be avoided if possible, the James footnote amounts to either a mistake or an adoption of the Jones dissent in violation of the rules of stare decisis.

Similarly in Grisel, the Ninth Circuit en banc rejected the argument that the Doctrine of Constitutional Avoidance applied to the Armed Career Criminal Act. Mr. Grisel argued that, where the fact, sequence, and characteristics of predicate convictions were not admitted or proved to a jury beyond a reasonable doubt, the court had to construe the ACCA to be inapplicable because those facts increased the statutory maximum from ten years to life without parole. The court mischaracterized Almendarez-Torres as resolving that not only the Fifth Amendment right to indictment but the Sixth Amendment standards of proof. If that were the holding of Almendarez-Torres, the court would be correct that only the Supreme Court could overrule that holding (Agostini). But if Almendarez-Torres is correctly limited to the indictment context, the court has abdicated its responsibility to construe statutes to avoid serious risks of possible constitutional violations.

This is especially true given the Supreme Court’s holding in Martinez that the Doctrine of Constitutional Avoidance involves not only the facts of the case at hand but the "least common denominator" – the facts that would create the biggest constitutional problem. For example, the statute must take into consideration the possibility that the facts for increased punishment could only be proved by a preponderance, not beyond a reasonable doubt, that the defendant is the same person as the person with the prior conviction or that the underlying crimes were "committed on occasions different from one another." The Grisel opinion suggested that the prior conviction’s date of the offense solves the latter problem, but the statute’s "different occasion" language is a factual question separate from the date listed in the indictment, which is also not necessarily admitted during the plea colloquy.

Certiorari Is The Only Solution

So what should federal defenders do when clients are sentenced above the statutory maximum based on prior convictions without compliance with Sixth Amendment jury trial and reasonable doubt requirements? We see great increases in sentences based on the sequence and characteristics of prior convictions in the context of firearms, immigration, and child pornography statutes. The recent competing statements of Justice Stevens and Justice Thomas on the denial of certiorari in Rangel-Reyes demonstrate that the Supreme Court is not likely to revisit the constitutional merits of Almendarez-Torres any time soon. Our best hope seems to be to preserve the issue and to encourage the Court to grant certiorari to construe statutes in a manner that limits Almendarez-Torres without the necessity of overruling the Almendarez-Torres holding on the Fifth Amendment right to indictment.

And the reasons for a grant of certiorari are exceptionally strong. The three areas in which these issues arise are among the most frequently prosecuted federal crimes; immigration alone now accounts for almost 25% of federal sentences imposed. With the conflict between the Jones holding and the James footnote, the Supreme Court cannot hope for the lower courts to sort things out; linear analysis has been ruled out by the conflicting precedent. And the jury trial rights – especially the reasonable doubt standard – are at the apex of protections that should be required, under the statutes or the Constitution, before sentencing people to long terms of incarceration.

In the illegal reentry context, the argument for certiorari based on the Doctrine of Constitutional Avoidance is set out in the Munoz-Cruz petition linked here. Under the ACCA, the memorandum linked here sets out the arguments that defendants similarly situated to Grisel can make for certiorari. We need to keep fighting even in the face of serious setbacks where logic and stare decisis should result in substantially less incarceration for our clients.

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

Sunday, June 17, 2007

Case o' The Week: Freeman not a free man, despite expert errors in Ninth

Defendant Freeman lost this appeal, and is stuck with a 240-month sentence despite many errors arising from the testimony of a narcotic-cop expert. United States v. Freeman, __ F.3d __, Slip. Op. 7071 (9th Cir. June 18, 2007), decision available here. Nonetheless, Freeman remains an interesting decision that should prove useful when challenging the testimony of cops gussied-up in "expert" clothing.

Players: Interesting decision by visiting Judge Gibson.

Facts: Freeman was charged with conspiring to manufacture and sell over 500 grams of crack. Slip Op. at 7075. The key evidence was a series of intercepted calls involving coded language. Id. at 7076. An LAPD officer – working with DEA as a federal task force officer during this investigation – testified as an “expert” on the meaning of these coded words. Id. The officer also interpreted normal phrases for the jury, like “get all the particulars” and “how everything had turned out.” Id. at 7080. Not surprisingly, each of the officer's interpretations found a drug connotation. Id. Defendant Freeman testified, and said that the coded calls at issue were actually about stolen basketball tickets. Id. at 7077. Freeman was convicted on one count, after an Allen charge. Id. at 7077-78.

Issue(s): “Freeman argues that it was error for the district court to allow Shin to testify both as an expert witness concerning coded drug terms and as a lay witness.” Id. at 7085.

Held: “The fact that Shin possessed specialized knowledge of the particular language of drug traffickers did not give him carte blanche to testify as to the meaning of other words in recorded telephone calls without regard to reliability or relevance.” Id. at 7087. “Although portions of the expert witness’s testimony should have been excluded, we hold that the district court’s error was harmless.” Id. at 7076.

Of Note: While this is ultimately a defense loss (on the harmless error analysis) Freeman is actually a very useful opinion for the defense in attacking the travesty of narcotic-cop “experts.” Visiting Judge Gibson adopts the reasoning of the Second Circuit in Dukagjini, worrying that a case agent who testifies as an expert enjoys “unmerited credibility” for lay testimony. Id. at 7086. The Court also explained that a lay/expert cop witness gets a shot at unfairly summarizing the evidence, and usurping the jury’s function. Id. at 7086. Finally, this practice sneaks in inadmissible hearsay evidence, when the cop exceeds his scope of “expertise” (whatever that is). Id. at 7087. This helpful analysis should be front and center whenever the government notices narcotic “expert” cops or DEA agents.

How to Use: It’s important to emphasize several aspects of Freeman when using it in trial. First, the district court erred in this case – the government just caught a break on the harmless error analysis. Id. at 7090. Freeman is really a defense win, and its holdings on experts control future trials – the ultimate harmless error outcome is irrelevant to its lessons on experts.

Second, the defendant here did not raise a Confrontation Clause challenge, and so waived it. Id. at 7086 & n.2. “Constitutionalize” objections to expert testimony by preserving the Confrontation Clause objection: this may bolster an appellate challenge to the expert’s improper reliance on hearsay.

For Further Reading: Despite its strong points, Freeman ultimately illustrates the unjust “government expert” exception to FRE 702 – federal courts routinely allow sloppy government “experts” in criminal cases that would never cut it as defense witnesses, or as plaintiff experts in civil cases. For example, imagine a plaintiff’s expert in a federal personal injury case, who wanted to testify about the “true” motivations of a witness that said “he wished to get off the telephone while driving.” This would never be tolerated in a federal civil case, but it happened in Freeman. Id. at 7080-81.

For a great article on this expert double-standard, see D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?, 64 Alb. L. Rev. 99 (2000). Professor Risinger predicts, “in ten years we will find that civil cases are subject to strict standards of expertise quality control, while criminal cases are not. The result would be that the pocketbooks of civil defendants would be protected from plaintiff’s claims by exclusion of undependable expert testimony, but that criminal defendants would not be protected from conviction based on similarly undependable expert testimony.” Id. at 100. The Prof was right back in 2000, except that this result hasn’t taken ten years . . . .

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


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Tuesday, June 12, 2007

Ninth Circuit (and The Sopranos) Opinions

US v. Savage, No. 06-30451 (8-12-07). The 9th applies a modified categorical approach to a state escape in determining whether an enhancement for a prior "violent crime" is appropriate. The defendant had a gun, and two priors that the sentencing court found to be violent. One was an assault; the other was an escape. The 9th remanded this previously in light of Piccolo, which held that escape is not a categorical crime of violence. Here, on appeal, the finding of a crime of violence was affirmed because at the plea colloquy for the escape, the defendant had admitted that he had escaped from a "jail." This secure facility distinguished it from a halfway house.

Murdoch v. Castro, No. 05-55665 (6-12-07). The 9th considers whether attorney-client privilege must yield to confrontation rights. Here, the petition argues that a letter sent by a testifying cooperating co-defendant to his lawyer, stating, in effect, that he was not present at the murder and was innocent contradicted his testimony. The 9th had remanded previously for a hearing on whether the exclusion of the letter was prejudicial. The district court found it was not and the 9th affirmed (Tashima & Bea). The 9th reasoned that the witness had been thoroughly impeached as to motive, prior testimony, and inconsistencies, and this letter had a low impact. The issue of balancing, though, is critical and could be weighed differently as Supreme Court precedents indicate that the Sixth Amendment can trump privilege. Dissenting, Bright (visiting from the 8th) argues that the letter would have made a difference because it was tangible, visible evidence of a lie, and corroborated the other impeachment.

US v. Freeman, No. 05-50401 (6-11-07). The 9th (Gibson visiting from the 8th with Fisher and Callahan) consider the extent of a drug agent's "expert" testimony on encoded drug lingo and language. The 9th held that admission of testimony as to what words like "iggidy," "ticket," and "all gravy" might mean as well as "fezone" and "teznower." These were unusual words which the agent's expertise in drug investigations and knowledge helped the jury decode. However, testimony as to more commonplace or ambiguous phrases, such as "long route" meaning a certain drug transaction or that "that" and "they" refer to money or drugs was not expert testimony but lay testimony since it was only one framework of understanding and had to be explained based on his general knowledge rather than his specialized training or experience. There are dangers when an agent testifies as both an expert and a lay witness. The roles can become confused and overlap. Although it is not categorically barred, care must be given. Here, there was improper testimony because of speculation as to why the defendant may have acted in a certain way, and there was "interpretation" given to clear meanings of other words. Although this was error, it was harmless error under the circumstances and in the context. On another issue, the court's giving of a neutral Allen charge after the jury announced deadlock was not error. The jury deliberated a number of hours prior, and continued to deliberate for several hours after the giving of a charge.

US v. Strong, No. 06-10566 (6-11-07). The 9th (Clifton joined by B. Fletcher and Ikuta) held that the mandatory confinement for treatment and restoration of competency under 18 U.S.C. § 4241(d) was not unconstitutional. The commitment of a defendant for competency restoration does not require a hearing for possible conditions of release pending such an examination. There is no right to consideration of individualized circumstances before commitment. The commitment statutory scheme has a definite period (4 months) and a procedure for testing the finding and results of competency. It is not indefinite. The 9th joins three other circuits in so ruling.

In re Tony Soprano (Editorial Note): So, after much thought, anticipation, obsession, and reading of blogs, my sense is that Tony Soprano was killed, and that the black-out at the end was his getting "whacked." This had been foreshadowed by comments about being killed being like a "black-out" and the sense of menace in the final 3 minutes. (For general discussion and overview, see generally Timothy Noah's "Darkness Visible," TV Club, Slate Magazine, Meadow Soprano, upon completing law school, should consider joining the FPDs. Who needs the starting salary of $173,000 in a private firm when constitutional issues are at stake. AsMeadow explained to her father, in justifying switching from medicine to law, she has seen "the state crush an individual." Yes, even in New Joisey. The ongoing and not so secret grand jury investigation into the Sopranos will now be moot.

Sunday, June 10, 2007

Case o' The Week: Ninth Avoids Constitutional Avoidance, Grisel

In an unusual, but welcome, alliance, Judge Graber (Right) authors a good en banc decision joined by Judges Pregerson, Reinhardt (Left), Berzon and others. United States v. Grisel, __ F.3d __, Slip. Op. at 6735 (9th Cir. June 5, 2007) (en banc), decision available here. In Grisel, the Ninth undertakes an exacting analysis of the Taylor definition of burglary, reverses an earlier decision, and holds that Oregon Second Degree burglary is not a categorical predicate for the Armed Career Criminal Act (ACCA). The only dark cloud in this sunny picture is the Ninth's rejection of Steve Sady's attack using the doctrine of constitutional avoidance (more briefing available here).

Players: Judge Graber authors, Judge Bea dissents. Big amicus assist by Oregon Chief Deputy FPD Stephen Sady.

Facts: Grisel pleaded guilty to felon in possession, 18 USC § 922(g)(1). Slip Op. at 6739. At sentencing, he objected to the use of seven prior second degree Oregon burglary convictions. Id. The district court overruled his objections, and sentenced under ACCA to the 180 mand-min term. Id.

Issue(s): 1. “First, Defendant urges that the doctrine of constitutional avoidance required that we not apply the rule of Almendarez-Torres. . . , that prior convictions need not be alleged in an indictment, proved to a jury, or admitted by a defendant, because recent Supreme Court cases have called into question its validity.”

2. “We took this case en banc primarily to reexamine the validity of United States v. Cunningham . . . In Cunningham, we held that second-degree burglary under Oregon law is a categorical offense under the analysis required by Taylor . . . .” Id. at 6738-39.

Held: 1. [Re: Almendarez-Torres and “doctrine of constitutional avoidance”]: “The fact that the Supreme Court has expressed some ambivalence about its own jurisprudence does not give us the power to change it.” Id. at 6741.

2. “[S]econd degree burglary under Oregon law is not a categorical burglary for purposes of the ACCA because it encompasses crimes that fall outside the federal definition of generic burglary. We therefore overrule our contrary holding in Cunningham . . . .” Id. at 6748.

Of Note: Grisel hurts: it essentially avoids the doctrine of constitutional avoidance. Id. at 6739-41. Readers of the Ninth Circuit blog know that this attack has long been Stephen Sady’s crusade. Still worth raising Sady’s excellent challenge? Yep. Remember that Olano plain error is what clobbered many of our post-conviction clients in the immediate wake of Apprendi. Little harm in preserving this objection in open-plea cases: who knows if and when the other Almendarez-Torres shoe will drop?

How to Use: Grisel helps in categorical-analysis cases. The dissent (Judges Bea, Kleinfeld and Tallman) complain that this analysis is just “technicalities” – the Supreme Court, and Congress, would want Grisel’s Oregon priors to count as ACCA predicates. Id. at 6750 (A worrisome red cape before the Supreme Court bull, this dissent).

In any event, the majority opinion is useful because it refuses to second-guess Congressional intent: it reads the Supreme Court’s exact definition of burglary in Taylor, and (correctly) finds that Oregon’s definition is broader – too broad, in fact. Demand this same depth of analysis in your next categorical challenge to a state prior at sentencing.

For Further Reading: It is rumored that Ninth Circuit judges have referred to the categorical/modified-categorical goo of jurisprudence as a “judicial crisis.” The Court seems to have decided to do something about the mess, if recent slip ops are any indication. The day after Grisel, Judge Beezer authored United States v. Navaraez-Gomez, Slip. Op. 6845 (9th Cir. June 6, 2007), decision available here. In that case, the Ninth concludes Cal Penal Code § 245 – shooting a gun at an inhabited house or dwelling – is not a categorical crime of violence because it can include reckless conduct. Id. at 6857.

In United States v. Beltran-Munguia, Slip. Op. 6873 (9th Cir. June 7, 2007), decision available here, decided two days after Grisel, Judge Berzon explained that Oregon Second Degree sexual abuse is not a categorical crime of violence under USSG § 2L1.2 [the illegal reentry guideline]. Id. at 6884.

In sum, the defense bar was 3-0 last week (even in the Ninth, we rarely have weeks that good -- when we do, they're worth of noting).

The N.D. Cal. FPD has put together a chart of the jumble of Ninth Circuit categorical holdings, for California state offenses and ACCA, § 2L1.2 and § 4B1.2. We’ll be distributing this chart at our June 16 CJA conference; defense counsel who don’t attend can contact our office for a copy

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


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Friday, June 08, 2007

US v. Beltran-Mungia, No. 06-30118 (6-7-07). The 9th (Berzon with grudging concurrences from the other members:Rymer-the short version and Tallman -the long version) holds that another state sexual abuse statute is not a "crime of violence" under the 2L1.2 guideline. The statute in question is Oregon Revised Stat. 163.425 which is sexual abuse in the second degree. The statute criminializes sexual acts without consent, but without the element of "forcible sex" or "force." This is so because the sex may be consensual but the person be under the age of consent, or unconscious, or suffer from a mental disability or incapacity. The 9th carefully delineates the contours of "force" under illegal reentry -- 2L1.2 -- and the controlling precedent that interprets the definition of a "crime of violence" for that specific offense characteristic. The 9th stresses that the definition differs from 4B1.2, and that the latter has an added lengthy clause that is far more inclusive (serious potential risk). Rymer, concurring, states that she is bound by precedent. Tallman says as much, but goes on at length that: "In our zeal to be good legal technicians, we are abandoning the role of common sense in fashioning appropriate punishment for repeat offenders like [the defendant]." His concurrence is a call to en banc (or beyond) to follow the 3rd Circuit's lead in making all sex offenses crimes of violence.

This is a good case reviewing the analysis of "crimes of violence" under 2L1.2, especially sexual offenses, and its distinction from 4B1.2. It shows a sensitivity to definitions, intent, and statutory construction. Virtues that some would call good legal technicalities.

Congratulations to Kaily Moran of the Fed Defenders of E. Wash. & Idaho.

US v. Alverez-Tejeda, No. 06-30289 (6-8-07). At a traffic light, a truck taps a car's bumper. The car's driver and passenger get out to inspect the fender. The police come and as everyone is milling around, a thief jumps into the driver's unattended car and makes off with it. The police chase him, but the thief makes a getaway. The police then drop the couple off at a motel. Guess what, this was all staged by....(drumroll)...the DEA and police. The DEA wanted to seize drugs from a conspiracy without tipping off the conspirators. The police got the car, and then got a search warrant, where drugs were indeed found. The district court was appalled at the police conduct, and suppressed. The 9th tsk-tsked, but was more sanguine about it. After all, the 9th (Kozinski, joined by Fisher and Tallman) reasoned, the police had probable cause to seize the car because they had purchased drugs in the past from it. The force used was minimal (just a tap on the bumper, no harm to passenger or driver or car) and the "lie" was only to transform the defendant from suspect to a "victim" in this elaborate ruse. There was no danger in hurting anyone. The conduct was not outrageous. Concurring, Fisher acknowledges the concern with the unorthodox manner of the seizure, and express concern that the staged accident, theft, and chase could have spun out of control. Fisher wants it noted that this is not to endorse future "creative" methods of seizure (criminal cinema verite?).

Wednesday, June 06, 2007

US v. Narvaez-Gomez, No. 05-50501 (6-6-07). In a 1326 trial, the defendant argued that Border Patrol engaged in a two-step to sidestep Miranda -- the Seibert bar. The agent questioned defendant without Miranda warnings, elicited incriminating statements, and then later, issued warnings, and got a second confession, which was used. The 9th first had to decide what standard of review was required. It elected to go with "clear error" for the factual findings. The ultimate determination of voluntariness is, of course, voluntariness. Here, the 9th affirmed that a "two step" was not used as the first statement was referred to, it was four hours later, and the cast changed. The 9th also affirmed the court's exclusion of testimony as to the INS record keeping. The court required a proffer or some evidence that defendant sought permission; testimony about record keeping without tying to this defendant was not relevant and properly precluded. The 9th did vacate sentencing because the court used California Penal Statute 246 as a crime of violence. This statute concerns the discharge of a weapon at a house. The 9th, in Fernandez-Ruiz, 466 F.3d 1121 (9th Cir. 2006) (en banc), held that a crime of violence requires intentional use of force, and not reckless. Section 246 with discharge had a recklessness possibility and therefore could not be categorically a crime of violence. Lopez-Torres, which had found 246 always threatened physical violence is thus abrogated.

Congratulations on the sentencing win to Jim Fife of the Federal Defenders.

US v. Mayer, No. 06-50481 (6-6-07). This opinion charts the boundaries of police surveillance of the First Amendment and associations. An FBI agent joined the North American Man/Boy Love Association (NAMBLA) to investigate foreign sex trade. Although the initial investigation fizzled, the agent stayed with NAMBLA and eventually attended a meeting, where he befriended defendant. They expressed interest in traveling abroad for sex with young males, and a sting operation was set up. On appeal, defendant raised various First Amendment challenges to the infiltration as violating freedom of association, compelling membership rolls, and other issues. The 9th (Hall joined by O'Scannlain and Callahan) refused to find an "agent provocateur" First Amendment violation (an agent joining a protected First Amendment association to foment criminal activity). The 9th also will not require a heightened requirement to investigate associations. Legitimate police investigative purposes will suffice. The 9th did suggest that disruption of NAMBLA (the agent had offered to host the 2005 convention) was better addressed through a 1983 action. The 9th found no misconduct.

Gautt v. Lewis, No. 03-55534 (6-6-07). The state tried petitioner on one homicide charge with an enhancement for use of personal weapons, and then for sentencing used another enhanced charge (intentional use of a weapon) to go from a 10 years to 25 to life. The 9th (Berzon joined by McKeown and King) held that defendant could not be charged with one sentencing enhancement at trial and then sentenced under another. This violates due process. Here, the case revolved around whether the petitioner accidentally fired or used a weapon. At sentencing, the State argued for an intentional use of a weapon. This was not charged, and the court confused the statutes in its instructions. Argument by the state and defense counsel never went to intent. Thus, the mistake violated due process.

Tuesday, June 05, 2007

US v. Kaiser, No. 06-50178 (5-31-07). The 9th has dealt with death and now turns to taxes; at least criminal charges on failing to report income in violation of 26 USC 7201. The defendant worked as an independent contractor for an internet corporation. He earned income, but supposedly fail to report it. When charged, he argued that he did not fail to report; and, oh by the way, the reported income could be recharacterized as reimbursement for business deductions. The court refused to give the instruction on that theory. This was error, holds the 9th (Ikuta joined by Reinhardt), because the defendant could show that reported income was not really earned or was offset, and so no reportable income was to be had. The defendant had presented sufficient evidence to get the instruction. Dissenting, Kozinski argues that a defendant should not be allowed to recharacterize after the fact reported income, and there was insufficient evidence.

US v. Grisel, No. 05-30585 (6-5-07). In an en banc opinion, the 9th (Graeber) holds that Oregon's second-degree burglary statute is not a generic categorical burglary for ACCA purpose under Taylor because it extends burglary to booths, airplanes, and other items outside of a building or structure. The 9th overrules Cunningham, 911 F.2d 361 (9th Cir. 1990) (per curiam) which had held it to be generic. The 9th, in so reaching this holding, finds unpersuasive defendant's argument that the court should adopt constitutional avoidance in considering prior convictions, and that a date of an offense falls outside the prior conviction exception to Almedarez-Torres. Turning to the state statute in question, the 9th had no trouble in finding that the statute's definitions stretch too far the common law definition of burglary by including boats, planes, booths, and other items. This renders the statute non-categorical. The majority responds to dissent arguments that Congress wanted an expansive definition by pointing out that Congress could have fixed it, but chose not to, and to abide by the Taylor approach. In dissent, Bea (joined by Kleinfeld and Tallman) argues that legislative intent would be better served with an expansive definition.

Saturday, June 02, 2007

Case o' The Week: Doe's Dough, Restitution for Sex Offenses -- United States v. John Doe

The Ninth Circuit backs funding for education and vocational training for sexually-abused foreign minors. United States v. John Doe, __ F.3d __, Slip. Op. 6331 (9th Cir. May 29, 2007), decision available here. Noble sentiment -- but is that what the restitution statute contemplates when it demands a causal link between child abuse, and criminal restitution?

Players: Hard-fought appeal by CD Cal AFPD Jonathan Libby. Opinion by Judge O'Scannlain.

Facts: John Doe (interestingly, the panel protected his identity) was “inspected” at Los Angeles International Airport ("LAX.") Hidden in his jeans was a memory stick, which contained hundreds of images of child porn (including scenes in which he participated.) Slip Op. at 6336. Doe told his brother to destroy other data; instead, that media was recovered and revealed thousands of additional images. Id. Doe plead to producing child porn abroad, and to engaging in sexual conduct with minors abroad. Id. He stip’ed to a 204 month sentence recommendation. Doe asked for a preview of the recommended conditions of supervised release: the court refused. At sentencing, the district court set over $18,000 in restitution, for psych treatment, education, and vocational training for the victims. Id. at 6339.

Issue(s): 1. “We must decide whether restitution can be awarded to the overseas child victims of sexual exploitation crimes committed by an American citizen while he was traveling outside the United States.” Id. at 6335.

2. “Doe also contends that the failure of the district court to provide advance notice of certain special supervised conditions violated his due process rights and the rights afforded by Rule 32.” Id. at 6348.

Held: 1.[I]n every circuit to consider the causation requirement of [the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. § 2259], a rule of reasonableness is applied. We will uphold an award of restitution under Section 2259 if the district court is able to estimate, based upon facts in the record, the amount of defendant’s [sic. probably should be, “victim’s"] loss with some reasonable certainty.” Id. at 6344. “[W]e believe that the district court did not abuse its broad discretion in crafting its $16,475 restitution award.” Id. at 6348.

2. “[W]e conclude that the district court did not provide adequate notice to Doe of certain additional supervised release conditions that were imposed.” Id. at 6348. “Thus, we vacate the conditions of supervised release and order a limited remand to the district court with instructions that the district court provide advance notice of any nonstandard conditions it deems appropriate. Doe should be given a chance to challenge their applicability to his case.” Id. at 6349.

Of Note: This is a weird case. As Jon Sands noted in his earlier summary below, in evaluating the reasonableness of the restitution order the Ninth took note that of Doe’s bargain restitution, by virtue of the fact that he molested Third World children: “It does not escape our attention that Doe has reaped a benefit by choosing to molest and to exploit children in a foreign country; now convicted, he must only reimburse the children at developing-world rates for professional services.” Id. at 6346.

A dispassionate analysis (a precious-rare commodity in this area of law) suggests that Doe was probably right. As a matter of law, why does criminal restitution include things like education, and vocational training? As admirable as it is to improve the children’s lot in life, was their poverty proximately caused by Doe’s abuse? The explanation of this causal link isn’t particularly compelling. Id. at 6346-47. This approach looks a lot like a civil “pain and suffering” award crammed into a criminal restitution order. In an abstract sense, maybe that's a just result: these foreign kids could have never found a lawyer to pursue small civil remedies, against an imprisoned child molester represented by an AFPD. Nonetheless, to get to that result the restitution order approved by the panel stretches "causation" to the breaking point.

How to Use: At sentencing, remember the Doe rule (previously articulated in United States v. Wise, 391 F.3d 1027 (9th Cir. 2004)): the defense is entitled to notice of unusual conditions of supervised release (conditions not required by statute or recommended in the guidelines). Id.

For Further Reading: Sentencing Resource Attorneys Amy Baron-Evans and Sara Noonan scared the bejesus out of hundreds of AFPDs at last week’s Defender’s conference in Miami, with their talks on SORNA and the Adam Walsh Act. If you have a federal sex case, don’t take another step before you read Amy and Sara's “Adam Walsh I” and “II” here. ("Adam Walsh III" should be out next week.These excellent tomes are, by far, the best summaries of the horrible new laws and regulations for federal sex offenses.

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


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