U.S. v. Snipe, No. 06-30215 (1-28-08). Home decorating/entertainment tips for criminal suspects: if the police pop over for a quick visit, it is not necessarily rude to hide the drugs. Here, the police received a call from a man screaming that he needed emergency help, he was hurt, and then the call was disconnected. The police were dispatched to the address of defendant's father. The police got there, noticed the door ajar, knocked, and entered. They noticed "a large amount of drugs" sitting on the table. The police ascertained that no one appeared in need of help, left, and got a warrant based on the drugs visible on the table. The subsequent search yielded drugs and guns. The defendant conditionally plead to being a prohibited possessor because of an obliterated serial number. The 9th (Bybee joined by Thompson and Kelinfeld) up held the search and sentence. The 9th noted that the precedential test for emergency laid out in Cervantes, 219 F.3d 882 (9th Cir. 2000), which has a subjective component (second prong). The Supremes in Brigham City v. Stuart, 126 S. Ct 1943 (2006), established the test being an objectively reasonable basis for an emergency and the scope was reasonable. In light of this, the 9th now adopts "a two-pronged test that asks whether: (1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search's scope and manner were reasonable to meet the need." The facts here met this test, given the hysterical call, and the early morning time (5 am). The police received frequent emergency calls on regular lines. When the police arrived, they acted appropriately and the entry and search were reasonable. The police, familiar with the home, noted a strange car outside, and that the door was slightly open. Of course, the two pronged test can be loosely interpreted and applied, and so the police can find reasons to suspect harm and really, who is to say that the search was not reasonable when there is a concern for safety, etc. (there may be guns anywhere, even in sock drawers). It will be interesting, in a pessimistic way, to see how this works out. The 9th also affirmed the sentence as being reasonable.

Hess v. Parole Board, No. 06-35963 (1-29-0). The 9th upheld the Oregon parole statute as to dangerousness against a vagueness challenge. The petitioner had been serving a sentence in Oregon since 1984. When he came up for appeal, a psychioatrist diagnosed him as a pedophile and suffering from a personality disorder (the mental Axis of Evil). His behavior, though, had been fine except he did not go to the "counseling" in prison. The board took the report, and victim testimony, into consideration and denied parole. The courts, and the 9th, found that the statute was not unconstitutionally vague beccause it sets standards for parole consideration, including review of a psychological report, and the determination was for the safety of the community.

Case o' The Week: Paris is Worth a Mass, Cherer

The Guidelines have no clothes -- and Gall and Kimbrough give experienced federal jurists just the platform they need to bluntly point this out. The latest broadside fired at the guideline edifice comes in a great dissent by Judge Noonan in United States v. Cherer, __ F.3d __, 2008 WL 200553 (9th Cir. Jan. 25, 2008), decision available here. While the Cherer opinion is a mediocre decision that dodges meaningful "reasonableness" review, Judge Noonan's great dissent foreshadows debates that will occupy the Ninth in '08.

Players: Spot-on dissent by Judge John Noonan.

Facts: Mr. Paris Cherer had a sexually-explicit dialogue with an FBI agent on AOL. 2008 WL 200553, *1. In several e-mails, the agent represented that she was fourteen, sent Cherer a picture of a fourteen-year old girl, and talked about her parents’ supervision. Id. at *3. Cherer traveled to meet “Susie”, was arrested, and was convicted at trial of 18 USC § 2422(b), attempting to entice a minor to have sex. Id. at *1.

At trial, the district court judge: 1. refused to give the defendant’s mens rea instruction, 2. let in FRE 404(b) evidence on Cherer’s prior state conviction for “lewdness with a child under fourteen,” and previous complaints made to AOL about his sexual dialogue from his screen name.

At sentencing, the court imposed a guideline sentence of 293 months - over 24 years. Id. at *1.

Issue(s): 1. Mens Rea/ Instructions: “On appeal, Cherer argues that the court committed prejudicial error by refusing to deliver his proposed [mens rea] instruction . . . .” Id. at *

2. FRE 404(b): “Cherer argues that Rule 404 or 403 should have barred evidence of this prior conviction and the AOL complaints.” Id. at *5.

3. Sentencing: “Since the district court committed no procedural error, the only question remaining is whether the sentence was reasonable - i.e., whether the District Judge abused his discretion in determining that the § 3553(a) factors supported a sentence at the top of the Guideline range.” Id. (internal quotations and citation omitted).

Held: 1. Mens Rea/ Instructions: “[T]he instructions did not explain that the jury was required to find that Cherer believed that the target, ‘Susie,’ was a minor. In other words, neither appropriately connected the requisite state of mind – knowledge – with the statute’s object – a minor victim.” Id. at *3. [But, harmless error.]

2. FRE 404(b): “The district court properly exercised its discretion to admit both pieces of evidence.”

3. Sentencing: “[E]ven without presuming that a within-Guideline sentence is reasonable, we cannot say that Cherer’s within-Guidelines sentence is unreasonable.” Id. at *8.

Of Note: Last week we touted Sixth Circuit Judge Merritt’s broadside on “guidelinitus;” this week brings us a remarkable dissent by our own Judge Noonan (left). Id. at *9 (Noonan, J., dissenting). He begins with a clean list that summarizes the playing field after Gall and Kimbrough: the Guidelines are only advisory, a district court can not presume they are reasonable, sentencing must be individualized, and comparison of various types of sentences may be taken into account where the reasonableness of the sentence is at issue. Id. at *9-*10.

Here, Cherer got straight probation in the prior Nevada case for actual sexual contact with a minor – then nearly twenty-five years for attempted sex with (what turned out to be) an adult FBI agent! Judge Noonan compares another home-invasion rape case that earned the defendant seven years – while Cherer gets a quarter-century for his “clumsy efforts to obtain forbidden sex?” Id. at *11. "A majority of judges appear to agree that Cherer's sentence was 'unduly harsh.' But the court finds the sentence not 'unreasonable.' That is such a fine distinction as not to be readily comprehensible." Id. at *12.

Emperor USSG has no clothes: Gall and Kimbrough give license to experienced jurists like Merritt and Noonan to expose the realities of Guideline injustice.

How to Use: There’s little admirable in the Cherer majority decision, but don’t let the outcome overshadow an important defense victory on the mens rea requirements in Section 2422 cases. The Court concedes that “when a defendant, like Cherer, has targeted an adult decoy rather than an actual minor, the Ninth Circuit requires that the defendant have believed the target was a minor.” Id. at *2. This is an important affirmation of a viable defense – particularly because many districts are seeing huge upswings in these types of prosecutions.

For Further Reading: Sentencing discrepancies between state and federal prosecutions are fair game for § 3553(a) variances. So are inane guidelines that generate wildly disparate sentences for attempt crimes. Judge Noonan’s dissent amplifies arguments that we’ve made in our upcoming Champion article on Gall and Kimbrough – an article that will be widely available at www.fd.org within a week or two.

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

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U.S. v. Cherer, No. 06-10642 (1-25-08). "Be careful what you wish for." The defendant was caught in a sting operation traveling to visit what he thought was a 14-year old girl. That "girl" was a middle-aged FBI agent. At trial (yes, trial), the defendant argued that he did not know the girl was 14, and there was some role-playing. The jury instructions failed to state the element that the defendant had to believe that the target was a "minor." Sounds important. Ah, says the 9th, what's a state of mind when the state of the evidence, to its mind, was overwhelming. The 9th pointed to three exchanges when the target indicated she was 14, and other exchanges. This would seem to go to weight (with a spin of role playing). The 9th (Trager joined by McKeown and Noonan on this issue) did not see it that way. The 9th also was not troubled by the admission of a prior conviction for lewdness, or acts with AOL about bad behavior. (This allowance of other act evidence would seem to tilt the playing field all the more when the elements are missing from the instruction that arguably goes to why the evidence was let in). At sentencing, the defendant got a 293 month sentence (almost 25 years). This was at the top of the guidelines range. The 9th found it "reasonable," looking at the guidelines factor, the within range term, and the recent Gall / Kimbrough focus on the position of the judge to know best (even citing the FPD amicus brief). Dissenting, Noonan wonders how a "clumsy" attempt at sex with a minor (all agree that it was terrible and reprehensible) results in a sentence that could be three times the length of an actual sexual assault (cases cited). Noonan stresses that an appellate court could always rely on the superior position of the sentencing judge to feel the facts in affirming a sentence, but that is an abrogation of the appellate duty. Noonan cites Scalia in Booker warning that there is a danger of rubber-stamping. Noonan argues that took place here, given the length of the sentence (which even the majority notes may be "unduly harsh").

U.S. v. Carr, No. 07-30133 (1-25-08). The (9th (Canby joined by Graber and Gould) affirm a conviction for being a felon in possession, finding that the State of Washington's "gross misdemeanor" for violation of a protective order is transformed into a felony with two prior convictions of a protective order. That occurred here. The 9th held that the state statutory scheme mandates such treatment, especially when the defendant at the state change of plea and sentencing plead to all the elements that made it a felony (it just wasn't up to the judge). The 9th's line of cases that looks at "core" convictions for recidivist purposes are distinguishable because the statutes at issue there go to federal definitions and classifications (drug and immigration). Here, the statute specifically looks to state classifications.

Jackson v. Brown, No. 04-99006 (1-23-08). "A promise made is a debt unpaid." The state's promise to jailhouse informants was made, paid, but not disclosed. Moreover, the state prosecutor stayed silent when the informant, under oath, testified that no promises were made of any kind. The district court grants partial relief, upholding the convictions (two elderly women murdered) but vacates and remands the death sentence and the special circumstances findings. The state concedes the death reversal, but argues for special circumstances. The 9th affirms district court, allowing the vacation to stand because of the Brady implications and prejudice. The 9th rejects relief on petitioner's claims. There is an interesting discussion on prisoner clothes. The petitioner wore prison garb at trial. The 9th acknowledges that being forced to wear inmate clothing is unconstitutional, but the Supremes require an objection to be made. Petitioner argued here that court-appointed counsel should not be forced to object, and that he is in effect a state actor. "The clothes make the man." The 9th rejected the claim, requiring the objection, and opining that it was a tactical choice by counsel.

Estrada v. Scribner, No. 06-55013 (1-23-08). Why can't jurors stick their convictions instead of caving into peer pressure and voting for conviction? Here petitioner claimed that he fended off the advances of the victim, who had offered him a ride and then supposedly sexually assaulted him. In the fight, the petitioner stabbed the victim to death. He was charged with first and convicted of second. Subsequently, there were various juror declarations, in which jurors said that they were pressured, and felt compelled to vote the way they did even though, in their heart of hearts, they felt the petitioner was only guilty of manslaughter. The prosecutor got other declarations from jurors that conceded that it was internalized pressure. The 9th agreed with the district court that the evidence amounted to juror mental processes, and were inadmissible. The 9th also rejected the claims of extrinsic evidence being introduced.

Frantz v. Hazey, No. 05-16024 (1-22-08) (en banc). Should counsel have a say when a jury note comes out? Sure. What about when the petitioner is representing himself? Sure. But if there is advisory counsel? Sure, again, if the advisory counsel was not given consent to act for the self-represented defendant. And what if the court forced petitioner to communicate through stand-by counsel? Yes, but let's be sure of the facts. That is the issue here, where the 9th remanded to the district court to see what extent, if any, advisory counsel was given the green light. The interesting question here is what to do, under AEDPA, when the state court bucked a Supreme Court decision (McKaskle) but decided the case not on the constitutional issue, but under the harmless prong. The state's sidestepping the constitutional issue (a move beloved by all courts) trips up the AEDPA analysis because the due deference to a ruling is hard to achieve when the court steps around the issue. The 9th tackles this, and holds that the 9th can review the constitutional issue de novo. Here, the Supremes have held that denial of counsel is structural. The denial here appears to have occurred in the context of self representation, but some facts need to be fleshed out. There is a concurrence by Gould (joined by O'Scannlain, Rymer, Silverman , Callahan, and Ikuta) that agrees with the result, but finds the majority (Berzon joined by Schroeder, Pregerson, Thomas, and Bea) unduly complicated, and dealing with facts that are not established (the dreaded hypotheticals) when it comes to duties of stand-by counsel. In a dueling concurrence by Kozinski (joined by Wardlaw, Paez, and Bea), this concurrence argues that Gould's concurrence misses the point: it is not the act of stand-by counsel speaking for the self representing petitioner, but here, whether the court forced petitioner to speak through counsel. cases delineating the duties, or responsibilities, of stand by counsel are not affected. The remand will determine what took place.

Congratulations to AFPDs Mike Burke, Paula Harms, and Megan Moriarty, District of Arizona (Phoenix).

U.S. v. Lowry, No. 06-10469 (1-16-08). If a tree falls in a forest, and only an aboriginal hears it, does the Forest Service care? You betcha. The 9th tackles the issue of whether an Indian, laying claim to Forest Service land, bears the burden of proving she has individual aboriginal title or does the Forest Service have to prove it as an element. The defendant here is a member of the Karuk people, who have occupied the Oak Bottom area of the Klamath National Forest in northern California from "time immemorial" (i.e. so long as the winds blow and streams run, but you know where this opinion is going). The defendant, convicted of unlawful occupancy, had argued that she had a right to the land as an Indian allotment. The Forest Service had denied her claim, because the land was in the Wild and Scenic corridor, was not being used for agricultural purposes, and she did not statutorily meet the requirements. The 9th ends up affirming the conviction because the defendant had the burden (relying somewhat on Kent, 945 F.2d 1441 (9th Cir. 1991) and she failed that burden. The defendant should shoulder the burden, reasoned the 9th, because it was easier for her to prove Indian ancestry, and continuous occupancy (in question here), and it would create a presumption of ownership for Indians if the claim was treated as an element. the trouble the defendant had here was a break in occupancy from ancient times, and the fact that she had been living on arguably a different parcel than the one she now claimed, and that was private.

Plumlee v. Masto, No. 04-15101 (1-17-08) (en banc). A defendant is facing criminal charges -- loss of liberty, fines, and the stigma of being branded a criminal. His whole life hangs in the balance. It is a serious charge. The defendant has issues with his appointed lawyer, but the trial court refuses to allow the public defender to withdraw, finding no conflict. The distrust is so great that the defendant states that he would rather represent himself than have the public defender, who he believes is undermining his case. "Done," said the trial court, and the defendant went pro per and was convicted. The state courts upheld. A panel of the 9th had reversed, but it went en banc, and the 9th (Silverman) held that the state courts were not unreasonable in denying the change of counsel as there were no conflicts that prevented representation. The state courts, in hearings, had concluded that the public defender had not acted against defendant's interests. Troubling, though, was the complete breakdown in the lawyer-client relationship, to such an extent that the client was forced, in his mind, to proceed without counsel. This struck Pregerson, who dissented, as a Sixth Amendment violation. Given the stance of the defendant, and the apparent breakdown, it struck Pregerson that it was unreasonable not to allow him a different counsel.

Case o' The Week: A Cure for "Guidelinitus", Castendada

Sixth Circuit Senior Judge Gilbert S. Merritt (right) had nothing to do with the Ninth's Case o' The Week in United States v. Castenada, __ F.3d __, 2008 WL 126641 (9th Cir. Jan. 15, 2008), decision available here. Judge Merritt's recent dissent on guideline practice after Gall and Kimbrough, however, is such an honest and candid assessment of federal sentencing that it deserves national recognition (and heavy citation in sentencing memoranda). (See below).

Players: Nice win by former ED Cal AFPD (and Hon. H.P. clerk) John Balazs.

Facts: Casteneda was convicted of crack crimes. 2008 WL 126641, *1. The defense urged a below-guideline sentence based on the Guidelines’ 100:1 sentencing disparity between crack and powder. Id. The district court did not “believe it’s appropriate to reduce a sentence under . . . § 3553(a) on the basis that the Congress and the . . . Sentencing Commission are wrong in establishing different penalties for different types of controlled offenses. Id. at *1. The panel denied the first appeal.

Issue(s): “In a Petition for Rehearing, Medina-Casteneda requested that we reconsider our decision in light of the Supreme Court's then-pending decision in Kimbrough . . .”

Held: “These statements [at sentencing] demonstrate that the district court did not foresee the extension of its Booker discretion that would be announced two years later by the Supreme Court in Kimbrough. Thus, the district court did not feel free to consider whether ‘any unwarranted disparity created by the crack/ powder ratio produced a sentence . . . greater than necessary’ to achieve § 3553(a)’s purposes. We vacate the sentence and remand to the district court to reconsider the sentence in light of the Kimbrough decision and to determine whether the disparity between crack and powder cocaine produced a sentence ‘greater than necessary’ under § 3553(a).” Id. at *2.

Of Note: There’s so much “of note” after Gall / Kimbrough that Defender Jon Sands and I have written an article on the topic for the NACDL's Champion. Look for the article in the upcoming edition.

How to Use: Here are some bullet points on opportunities presented by Gall / Kimbrough:

● The “parsimony provision” in § 3553(a) was strongly endorsed in those decisions; judges should be shooting for sentences ‘no greater than necessary’ to reach § 3553 goals;

● Guidelines with lousy empirical and analytical pedigrees are more vulnerable to attack – like other mand-min drug guidelines, fraud guidelines, and child porn. See United States v. Baird, 2008 WL 151258 (D. Neb. Jan. 11, 2008) (halving child-porn sentence given lousy empirical pedigree of child-porn guidelines);

● Non-guideline sentences to offset disparities are now encouraged (so fast-track, Section 1326 disparities are again fair game);

● Non-guideline sentences in light of co-defendant disparities are endorsed;

● Whether a basis for a non-guideline sentence is “discouraged” in Guidelines Chapter 5 is not relevant – these theories are still completely fair game for a § 3553 below-guideline sentence;

● Belt and suspenders are best – ask for both a guideline departure and a § 3553 “statutory” below-guideline sentence, because there’s some troubling language about potentially different standards of appellate review for the two.

For Further Reading: As always, start at www.fd.org. The site has several articles on these developments – including a great appellate brief on the newest issue on the horizon, keeping acquitted conduct out of sentencing. (See blog on Ninth Circuit's acquitted conduct decision in Mercado, here -- with a great B. Fletcher dissent Mercado cert. petition now in Supreme Court conference).

AFPD Jennifer Coffin has prepared an interesting list of appellate Gall and Kimbrough cases, with commentary – defense counsel can get a copy from me.

A must-read is Sixth Circuit Judge Merritt’s remarkable dissent in United States v. Sedore, __ F.3d __, 2008 WL141046 (6th Cir. Jan. 11, 2008), decision available here. The first paragraph gives a flavor of the opinion: “Except for those judges and lawyers who prefer to continue routine conformity to the old pre- Blakely-Booker process of guideline sentencing, there is widespread disapproval of the present muddled system. This is because, in the main, the old system is just continuing on as though nothing had happened – continuing under the pretext that the guidelines are only ‘advisory’ instead of being considered only as a starting point against the backdrop of the more sensible and humane penalogical goals set out in § 3553(a), Title 18. This case is one more example of the continuing problem, the problem of guidelineism, or ‘guidelinitis,’ the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone.” Id. at *9 (Merritt, C.J., dissenting).

Finally, Gall / Kimbrough have their dark sides as well. AUSAs, Judges, and Probation officers interested in how the cases have already been used to support above-guideline sentences should visit an insightful article here, see the statistics available here, or review the materials at this web site.


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

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U.S. v. Castenada, No. 05-10372 (1-15-08). In one of the first post-Kimbrough decisions, the 9th remands a crack conspiracy conviction for resentencing. At sentencing, the district court acknowledged that the crack penalties may be "out of whack": but it was not for the district court to change them; that was up to Congress. "Wrong," said the 9th (Nelson joined by Goodwin and Callahan). The Booker remedy of advisory Guidelines extends, under Kimbrough, to crack/cocaine disparity, and the district court could, and should, consider it as a sentencing factor.

U.S. v. Ross, No. 06-50569 (1-14-08). So what if a court skips a section of the Benchmark that deals with, oh, "proof beyond a reasonable doubt." Is it so prejudicial under a plain error standard that the plea should be vacated? Nope. All agree that there was a clear Rule 11 (colloquy) violation, but it is not if the defendant did not have wind that the government had to meet that burden. The review is not restricted to the testimony of the plea. Here, the defendant had signed a plea agreement that laid out the burden, and in an affidavit to withdraw his plea, he stated that he thought the government had to prove drug amounts beyond a reasonable doubt. The defendant cannot show that he was prejudiced. The 9th holds therefore that the district court's failure to advise about the burden of proof is not per se plain error. The 9th does remand though under Ameline in light of Booker's advisory Guidelines holding.

U.S. v. Calvert, No. 06-30643 (1-14-08). This is an "obstruction" adjustment Guideline question. Can one get an obstruction bump if there is no pending criminal case? The 9th (Larson joined by Gould) said "sure" in an expansive opinion about the sanctity of the criminal justice process. The facts here involve a tax protester who went to prison because of a witness's testimony. The protester -- here the defendant -- is released, and vows vengeance. He recruits someone he served time with, puts him in his debt, and then sends him on a mission to possibly kill the witness. There is a home invasion, and the invader is shot, and dies. The investigation traces the impetus back to defendant. He is convicted on various counts of conspiracy, prohibited possessor and so forth. He also gets an 8 level adjustment under 2J1.2(b)(1) for obstruction. The 9th holds that this was proper given the circumstances, and the fact that the obstruction occurred after the conviction, and in the absence of any proceeding, was not a bar. The 9th goes on to wax lyrical about the need to protect witnesses, and how expansive the need to protect or the dangers of obstruction are. Concurring, with concern, is B. Fletcher, who goes along with the holding, but says, in effect, "wait a minute, we're deciding just this case, and not putting together a list of how every proceeding could be obstructed, or a test as to when and where an obstruction might occur." B. Fletcher would decide the case on these facts and leave it at that.

Case o' The Week: Ninth Sputters About Loss Amount, Tulaner

Know much about platinum sputtering disks? Neither do we, except that they're wicked expensive - $200,000 a pop. In an important (though brief) new case on loss amount in fraud cases, Judge Tallman upholds hitting a defendant with twelve of these disks for sentencing (a loss of $2.3 million), although the defendant only negotiated for delivery of four ($800k) before he was arrested. United States v. Tulaner, __ F.3d __, 2008 WL 80703 (9th Cir. Jan. 9, 2008), decision available here. Disappointing new rule on fraud loss calculation under USSG § 2B1.1 Application Note 17 -- attempted fraud.

Players: Decision by Judge Tallman, dissent by Judge Thomas.

Facts: Tulaner cooked up a scheme to purchase platinum “sputtering disks” without paying for them. 2008 WL 8073, *1. These disks, used in semiconductor chip manufacture, were worth roughly $200k each. He tried to purchase twelve ($2.3 million worth) on credit, and when that didn’t work agreed to start out with a shipment of four. Id. The seller got suspicious, alerted the feds, and they delivered a fake package for the four in the initial shipment. Id.

Tulaner pleaded guilty to one count of wire fraud, and over his objection at sentencing was hit for relevant conduct for all twelve disks ($2.3 million), instead of for the four disks “delivered” ($700k to $800k).

Issue(s): “Tulaner argued that even if the district court properly found that he intended to steal all twelve discs, he should have received an ‘attempt reduction’ for a partially completed offense . . . Tulaner argues that because the count of wire fraud to which he pled guilty was based on a phone call made on the day of his arrest, after the package he believed contained four sputtering discs had been delivered, the call was made to obtain four discs, not all twelve. Therefore, he argues, the ‘completed offense’ of wire fraud involved a scheme to obtain four discs and the scheme to defraud JMI out of twelve discs for a total loss of $2.3 million was only ‘partially completed’ entitling him to the attempt reduction.” Id. at *3-*4.

Held: “[I]n the case of wire fraud, the attempt reduction for partially completed offenses is inapplicable even where, as here, the substantive content of the wire transmission for which the defendant is convicted relates to only part of the overall scheme to defraud . . . The fact that Tulaner would have had to take additional steps to get the other eight discs is irrelevant to determining whether the substantive scheme to defraud by mail or wire had been completed.” Id. at *4.

Of Note: This entire (troubling) case is about calculating relevant conduct for intended loss in fraud cases. It is an important (albeit brief) opinion on that issue. The issue of most interest is the discussion of Guideline § 2B1.1 Application Note 17, which allows for a reduction of intended loss for a “partially completed offense” (such as a fraud that is part of a larger, attempted fraud).

By its plain words, Note 17 seems to apply squarely to this case – a point forcibly made in a persuasive dissent by Judge Thomas. Id. at *5. Judge Thomas agrees that the intended loss is for all twelve disks, but under Note 17 would have reduced the loss amount to the value of the four disks to be delivered on the first shipment. Id. The dissent squares with prior Ninth Circuit authority on the issue; the majority opinion's attempt to distinguish that authority is not terribly persuasive. Id. at *4 & n.2.

How to Use: Judge Tallman draws a (fine) distinction between an earlier Ninth Circuit case that endorsed the "attempted fraud" reduction in Application Note 17. It appears that the new rule is that a defendant can get the Note 17 “attempt” reduction if there are additional steps necessary “to complete the substantive offense.” Id. One doesn’t get the reduction, however, if the substantive offense (such as one count of wire fraud) is completed, with other fraudulent activity to follow.

Frankly, that new rule is not supported in the text of the note – anticipate much litigation about whether a fraud case is a “completed substantive offense” (Tulaner) or an incomplete substantive offense still resulting in conviction (United States v. Martinez-Martinez, 156 F.3d 936, 940 (9th Cir. 1998)). The former doesn’t get the benefit of Note 17, the latter does, and the difference can mean a huge swing in the offense level.

For Further Reading: For an interesting article on how the guidelines deal with loss, see Frank Bowman, Coping with “Loss:” A Re-Examination of Sentencing Federal Economic Crimes Under the Guidelines, 51 Vand. L. Rev. 461 (1998).

(Professor Bowman, unfortunately, lost much goodwill among the defense bar when he proposed the “topless guidelines” after Blakely – a position that he later recanted. See testimony here.)

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

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U.S. v. Calderon-Segura, No. 05-50820 (1-9-08). This an appeal from a 1326 conviction and failure to allege prior conviction and removal. The 9th noted that, under Salazar-Lopez, the indictment should have alleged, in addition to facts of the prior removal and subsequent reentry, the date of the prior removal or that it occurred after a qualifying conviction. The indictment should have alleged it, but it was harmless because there was no prejudice, and no objection to the dates in the PSR or at sentencing.

U.S. v. Tulaner, No. 06-10304 (1-9-08). This concerns the issue of loss in a sophisticated fraud. The defendant was seeking to gain highly technical platinum discs used in the manufacture of semiconductors. He ordered twelve, but the manufacturer said that he could only get four at a time (because of the costs, we're talking high end, millions of dollars). The scheme went bust, and at sentencing, the issue was whether the loss should be for all 12 (they were the intended target) or the 4 he received. The 9th (Tallman) affirmed the sentence, reasoning that all 12 were the object of the fraud, and the cost should be their worth. In dissent, Thomas argued that the attempt became limited to four (hundreds of thousands of dollars) because the 12 were out of reach. Interesting issue with cases and guidelines cited.

U.S. v. Thornton, No. 06-50597 (1-10-08). This is the an appeal (Berzon joined by Reinhardt and Singleton) that considers the scope of an Ameline remand (remember that case after Booker?). The 9th holds that, "Where sentencing issues are raised but not decided in an appeal prior to an Ameline remand, those issues are properly before the Court on any subsequent appeal from the Ameline remands, along with any challenges to the results of the Ameline remand itself." The defendant won the issue but lost the result, with an affirmance as the error was harmless.

Case o' The Week: Ninth Salehs Forth with Bad Miranda Decision

A disappointing habeas loss tolerates a non-Mirandized phone interview by a cop, of an inmate in custody -- when the inmate initiates the call. Saleh v. Fleming, __ F.3d __, 2008 WL 43719 (9th Cir. Jan. 3, 2007), decision available here

Players: Hard-fought appeal by Seattle FPD R&W Attorney Corey Endo.

Facts: Elizabeth Edwards was beaten to death. 2008 WL 43719, *1. The police suspected her ex-husband, Saleh. They Mirandized and interviewed him while he was in custody on another case. Id. Three weeks later a cop again Mirandized and interviewed Saleh in custody. He cried, said he wanted the electric chair so that he could be with Elizabeth, but denied killing her. Id. The next day, Saleh placed a collect call from jail to the cop, repeated that he wanted the chair to be with his ex-wife, and denied killing her. Id. At the state murder trial, the first two interviews were suppressed, but the third call – initiated by Saleh – was admitted. Id. He was convicted, lost his state appeals, and his federal habeas was denied. Id. at *2.

Issue(s): 1. Custodial / Miranda : “We must decide whether a phone conversation with police investigators initiated by a suspect who is in jail for an unrelated offense constitutes a ‘custodial interrogation’ under Miranda . . . and its progeny.” Id. at *1.

2. Cat out of the Bag Miranda: “Saleh also argues that the March 26 . . . statements should have been suppressed under the ‘cat out of the bag’ theory set forth in United States v. Bayer, 331 U.S. 532, 540 . . . (1947) ( ‘[A]fter an accused has once let the cat out of the bag by confessing ... he is never thereafter free of the psychological and practical disadvantages of having confessed.... In such a sense, a later confession always may be looked upon as fruit of the first.’).”

Held: 1. Custodial / Miranda: “We agree with the Eighth Circuit that ‘incarceration does not ipso facto render an interrogation custodial,’ and that the need for a Miranda warning to the person in custody for an unrelated matter will only be triggered by ‘some restriction on his freedom of action in connection with the interrogation itself.’ Leviston v. Black, 843 F.2d 302, 304 (8th Cir.1988); see also Cervantes v. Walker, 589 F.2d 424, 427-28 (9th Cir.1978) (rejecting a per se requirement of Miranda warnings for all persons interrogated while incarcerated). Accordingly, the Washington Court of Appeals’s determination that the March 26, 1998, phone conversation was not custodial for purposes of Miranda was not contrary to clearly established Supreme Court precedent.” Id. at *2.

2. Cat out of the Bag Miranda: The cat out of the bag “argument is foreclosed by Medeiros v. Shimoda, 889 F.2d 819 (9th Cir.1989). In Medeiros, we held that, under Oregon v. Elstad, 470 U.S. 298 . . . (1985), the ‘cat out of the bag’ theory does not apply where a confession is voluntarily made, under circumstances not requiring a Miranda warning, subsequent to a technical Miranda violation. . . . Rather, the relevant inquiry is whether the suspect ‘made his second statement voluntarily.” Id. at 824; see Elstad, 470 U.S. at 318 (‘[T]here is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made.’).”

Of Note: A nice Judge Berzon concurrence concedes that she is bound by Medeiros, but argues that Judge Norris’ “trenchant” dissent in that case – where he would find a Miranda violation – is much more persuasive. Id. at *4.

How to Use: Author O’Scannlain works hard in this case to distinguish the Supreme Court’s decision in Mathis, emphasizing that Saleh initiated the call and was free to end it at any time. Id. at *2. Take a close look at this decision if this Miranda issue arises – the opinion is fairly fact-bound and should remain limited to its specific facts.

For Further Reading: Habeas remains a mystery. In the button case – Musladin v. Lamarque, 427 F.3d 653 (9th Cir. 2005), vacated by Carey v. Musladin, 127 S. Ct. 649 (2006) – everyone was up in arms about using Ninth authority to help understand what “clearly established” federal law is. Yet, here, Judge O’Scannlain relies squarely on Circuit precedent – not “clearly established federal law as determined by the Supreme Court” – to deny the habeas appeal?

Saleh illustrates what was true -- but never really admitted -- in Musladin. AEDPA, schmedpa: every Circuit court routinely uses its own precedent when trying to figure out what "clearly established law as determined by the Supreme Court" is. A small illustration of one of the many, many ways that AEDPA is an unworkable statute in practice.


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


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David v. Silva, No. 05-16821 (1-2-08). The state cannot use a "failure to exhaust" bar in this petitioner's appeal. The petitioner was serving a 9-year sentence when a guard messed with his food. A food fight ensued, and the petitioner was docked 150 days good time. He argued that he was prevented from calling a witness. He federalized the claim, citing the Constitution, regs allowing witnesses, and precedent about the ability to call a witness (Wolff). Although the appeal to the state supreme court lacked a factual discussion, the 9th felt, and held, that under the liberal construction approach for pro se, a claim was made, supported by authorities, and clearly put the state and courts on notice that the claim derived from his allegedly being barred from calling a witness at the administrative hearing.

Hayward v. Marshall, No. 06-55392 (1-3-08). Governor Gray Davis had repeatedly denied the parole of petitioner, serving a life sentence for a murder of a victim who assaulted his girlfriend earlier. The petitioner, having served close to 30 years, had a sterling record of rehabilitation. The Governor put forward various reasons that he was a danger, that state courts affirmed and the district court upheld. The 9th though found that it was a violation of due process (Gould joined by Kozinski and Friedman). The record had none of the dangers presented to the public that would be a basis for denying parole, and the record was replete indications of the petitioner's remorse and rehabilitation. The 9th found the Governor's reasoning without merit, and that the state courts were unreasonable in their application of constitutional due process standards.

Saleh v. Fleming, No. 04-35509 (1-3-08). The petitioner, suspected of murdering his ex-wife, and serving a sentence for assault on his son-in-law, placed a collect call to the detective who had met with him previously to unburden himself. This unburdening resulted in incriminating statements that were used at trial. The 9th (O'Scannlain joined by Tashima with a concurrence by Berzon) held that these statements (other earlier ones had been suppressed) were not "custodial" because, even though petitioner was in custody, he was not in custody on this issue. Moreover, he placed the call, could have terminated it, and spoke freely. As for the "cat out of the bag" argument (petitioner had previously confessed, but those were suppressed), the time and separation, and voluntary nature, made these statements admissible. Berzon concurred, just noting that the "cat" issue was foreclosed by precedent, but that the dissent by Judge Norris in Medeiros v. Shimoda, 889 F.2d 819 (9th Cir. 1989) (Norris, J., dissenting) was well reasoned, and that the lack of a second Miranda warnings after the previous interrogation, and invocation, should have made the subsequent phone call involuntary.

U.S. v. Lococo et al, No. 05-50550 (12-27-07). This appeal challenged wiretap evidence, and an assortment of sentencing issues. The 9th gave the issues short shrift in this per curiam opinion. The 9th found that the government's wiretap application adequately described the various steps it tried to take in investigating the offense, including seeking cooperators, hidden and direct surveillance, trash pick-up, and so forth. There is a laundry list that can be used as to what steps the government should take. Since these attempts were thwarted or failed, a wiretap was proper. There was also no evidence produced of a Franks violation. Some of the sentencing issues were foreclosed by a plea waiver. The plea did allow the government to produce additional evidence to supplement the amount of drugs (you get what you bargain for).