U.S. v. Crawford, No. 06-30205 (3-28-08). The aftermath of Rita, Gall, and Kimbrough is being played out in the 9th. After the en banc in Carty/Zavala held that there was no presumption of reasonableness in a guideline sentence, and after it wiped clean sentencing precedent in its footnotes, the 9th now is going about affirming guideline sentences as, of course, reasonable. In this case, defendant appealed his 210 month sentence. He was convicted of crack distribution, and was found to be a career offender. Although the sentencing judge recognized the crack/cocaine disparity, it did not make a difference when the career offender enhancement kicked in. The court found that defendant's past convictions, and drug dealing, warranted the 210 month sentence. The 9th also found that the priors qualified as enhancements under the modified categorical approach. Two lessons we can begin to discern. First, guideline sentences will be affirmed as reasonable most of the time unless the attack on the guidelines is grounded in empirical data and solid facts (the defendant did do that here, but was trumped by the career offender enhancement. The career offender enhancement itself can be attacked as not being statistically supported by the Commission -- see its 15 Year report -- , although here the 9th found that the district court weighed and balanced the 3553 factors in conjunction with it.). Defense arguments trying to make use of Rita, Gall, and Kimbrough MUST be aggressive. Second, whenever the first sentence of an opinion starts off by stating that defendant's challenges have been answered by a "spate of recent sentencing decisions...." the outcome is rarely good for the defendant.

Case o' The Week: If We Won, Why is He So Happy? Zavala / Carty En Banc

Chief Judge Alex Kozinski (right) loses, but wins; the defense wins, but loses. Over two years after oral argument, an en banc panel of the Ninth Circuit declines to adopt a (formal) appellate presumption of reasonableness for an in-guideline sentence. United States v. Carty, __ F.3d __, 2008 WL (9th Cir. Mar. 24, 2008) (en banc), decision available here. Great news -- except that 595 months (49 1/2 years) of guideline sentences are affirmed despite the new rule . . . .

Players: Judge Rymer authors; Chief Judge Kozinski writes an unfortunately accurate concurrence.

Facts: In October 2006 an en banc panel in the Ninth heard oral argument on Zavala / Carty, a brace of cases that presented a dozen sentencing issues of first impression. See blog here. The Ninth then kicked (and kicked, and kicked) the cases while the Supremes issued a trio of decisions that resolved all but one of these issues: Rita, Kimbrough, and Gall. Id. at *1.

Issue(s): “Core principles having now been resolved by the Supreme Court, we are left with one open question presented by Carty and Zavala: whether to adopt an appellate ‘presumption’ of reasonableness for sentences imposed within the Guidelines range.” Id. at *1.

Held: “We decline to do so, although we recognized that a correctly calculated Guidelines sentence will normally not be found unreasonable on appeal.” Id.

Of Note: Hate to admit it, but Kozinski’s concurrence is probably right. Id. at *8. He crows that the majority effectively adopts a presumption of guideline reasonableness, because the opinion’s appellate review (and acceptance) of the two (remarkably high) sentences given to Zavala and Carty is so casual, and so deferential, that the Court essentially assumes that the pair of guideline sentences are “reasonable.” Id. at *8-*9.

How to Use: Judge Rymer’s concise, bullet-point distillations of the Supreme Court’s sentencing morass are clear and well-written; they will be the Ninth’s hornbook for post-Booker sentencing practice. Id. at *3-*6. If a Ninth Circuit defense counsel reads only one thing on federal sentencing, it should be Carty.

Judge Rymer also teaches us how to salt an appellate record (to the extent still possible). Want to force your district judge into actually wrestling with your arguments, on the record? Then raise “a specific, non-frivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence.” Id. at *5 (emphasis added). Faced with such arguments, the sentencing judge “should normally explain why he accepts or rejects the party’s position.” Id. On the subject of salting, here’s a list of procedural errors that the Ninth targets for its first pass on appellate review:

• failure to calculate, or incorrect calculation, of the guideline range;

• treating the Guidelines as mandatory instead of advisory;

• failure to consider the § 3553(a) factors;

• choosing a sentence based on clearly erroneous facts; and

• failure to adequately explain the sentence selected, including any deviation from the Guidelines range.

Id. at *5.

For Further Reading: As fellow blogger Jon Sands notes, Carty’s first use is in United States v. Crawford, __ F.3d __, 2008 WL 819772 (9th Cir. Mar. 28, 2008), available here. In Crawford, Judge McKeown invokes the new Carty decision to quash a Booker attack on a Career Offender sentence. Id. at *2-*3.

[And we “won” Carty / Zavala ?]

Carty and Crawford teach that the Courts of Appeal (at least the Ninth) are effectively out of the sentencing business. That’s bad news when a sentencing judge methodically plugs-in guideline ranges generated by the Commission’s (and Congress’s) latest whim.

The back-story, however, is that the Ninth is not reversing (or even really hearing) § 3553(a) sentences that are far below the guidelines. (And Rita / Kimbrough will only help that trend). Anyone notice lately that the USAOs are too spooked to take-up a below-guideline § 3553(a) sentence, terrified of creating “bad” law endorsing the district court’s exercise of discretion? Maybe Booker’s legacy will be relocating sentencing battles to the district court trenches.


Photograph of the Honorable Chief Judge Alex Kozinski by Vern Evans, from California Lawyer. Website available here.

Salt shaker painting by Jeff Hayes, blog here.


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


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Harvest v. Castro, No. 05-16879 (3-27-09). A district court can modify a conditional grant of a writ, even after the time for its relief has lapsed, but it must be done under Fed R Civ P. 60. Here, the petitioner was granted relief from his first degree murder conviction. The petitioner's sixth amendment rights were violated when the court admitted a co-accomplice's statement. The writ ordered petitioner's release unless the state lessened the conviction to second degree or retried the petitioner within sixty days. The state's AG got the order, and filed it away. He never notified the district attorney of the county where the case was tried. After the time lapsed, the state moved pro nunc for a modification. The district court granted. The 9th (Tashima) held that the court did have jurisidction, even after the 60 days lapsed, because of equity. The court still retained jurisidiction. The jurisdiction is controlled though by Fed.R.Civ.P. 60. Yet, under Rule 60, the state was out of luck: this wasn't a mistake by the court; there wasn't a change in law; and the catch-all didn't apply. The district court is reversed, and the petitioner is released. The state, though, could rearrest and retry him.

U.S. v. Carty , No. 05-10200 (3-24-08) (en banc). In an important en banc decision, the 9th (Rymer) considers whether there should be a presumption of reasonableness for a guidelines sentence in the wake of Rita, Gall, and Kimbrough. Considering the sentencing framework after those cases, the advisory nature of the Guidelines, and the fact that no 3553(e) sentencing factor outweighs any other, the 9th declines to embrace a presumption. The 9th recognizes that a Guideline sentence will usually be reasonable, but that stating there is a presumption imports "baggage" of an evidentiary nature when, on appeal, and in light of the nonbinding nature of the Guidelines, serves no purpose. The opinion lays out the steps a court should follow, emphasizing the need for correct procedure to be followed by substantive review. the standard is abuse of discretion as to reasonableness. The concurrences are interesting. Kozinski states that the majority adopts a presumption, but is just afraid to call it that. Silverman chides the majority for not adopting a presumption of reasonableness, which he reads the Supremes as permitting. As for the cases, the 9th affirms the sentences on both as reasonable. Still, the opinion is a clear indiction of the tremendous discretion the sentencing court now enjoys. Carty will certainly make the "most-cited" list for the 9th.

Whaley v. Belleque, No. 06-35759 (3-24-08). The state can't have it both ways. In a petition seeking relief from parole, the state (Oregon) moved for dismissal of certain constitutional claims because the petitioner had been reincarcerated, and so the claims were arguably moot. The petitioner then jumped to federal court to present constitutional claims for the underlying conviction. "Wait," said the state, "those claims are unexhausted." The 9th (Reinhardt joined by Smith) hold that the state can't whipsaw the petitioner with those arguments. Invoking judicial estoppel, the 9th sends it back to the district court to resolve the claims on its merits. Hall, dissenting, views the invocation of judicial estoppel as granting any petitioner a free pass to jump to federal court whenever the state convinces a lower state court that there is a procedural default. Hall would force the petitioner to play out the hand on state review.

Congratulations to AFPD Tom hester of the Oregon FPD office (Portland).

U.S. v. Anderson, No. 07-50145 (3-25-08). It never ends. That is the way supervised release seems to defendants, and the 9th (Graber) just adds to that perception. Defendant had suffered several SR revocations of various months (the latest being 90 days). The court imposed 36 months supervision to follow. Defendant appealed, arguing that the term should be the extent of the duration of the revoked term. No such luck. The statute, 3583(e), interprets the 9th, wants the court to help the defendant reintegrate into society, and how could a foreshortened term allow that. Surely Congress and the courts would not give up on "the worst of the worst" (the sanctimonious concern is touching), and so the full term impose after any reimprisonment is permitted both under the statute and the Supremes precedent of Johnson and other circuits. The defendant does get credit for the time he has served against any future imprisonment should the rehabilitation not work out.

Case o' The Week: Child Porn Conviction in (Double) Jeopardy, Davenport

Judge Gould (right) delivers a doubly-interesting decision for the defense. See United States v. Winston Davenport, __ F.3d __, 2008 WL 732491 (9th Cir. Mar. 20, 2008), decision available here. First, Judge Gould explains that possession of child pornography is a lesser-included offense of receipt of child pornography: it violates Double Jeopardy to be convicted of both. Second, Davenport rejects the government's reliance on (some types of) affirmative defenses to defeat the Blockburger Double Jeopardy analysis.

Players: Decision by Judge Gould (joined by Judge Canby); dissent by Judge Graber.

Facts: Davenport pleaded guilty to possession of child porn and receipt of child porn. Id. at *1.

Issue(s): “[W]e address whether Davenport’s conviction for both 18 U.S.C. § 2252A(a)(2), or receipt of child pornography, and 18 U.S.C. § 2252A(a)(5)(B), or possession of child pornography, offends double jeopardy when the conduct underlying both offenses is the same.” Id. at *1 (emphases added).

“Davenport urges us to conclude that the offenses described in 18 U.S.C. § 2252A(a)(2) [receipt] also cover the offenses described in 18 U.S.C. § 2252A(a)(5)(B) [possession], so that possession is a lesser included offense of receipt. Davenport asserts that, while the government may have been within constitutional boundaries to include both offenses in the indictment, and could permissibly have continued to prosecute Davenport for both offenses through trial, . . . entering judgment against him on these counts was multiplicitous and therefore in violation of the Fifth Amendment’s prohibition of double jeopardy.” Id. at *3.

Held: “We agree.” Id. at *3. “[W]e determine that Davenport’s simultaneous conviction for both receipt and possession of child pornography violates the Fifth Amendment's prohibition on double jeopardy.” Id. at *1.

Of Note: Davenport is an important Double Jeopardy case. Arguing against the defense challenge, the government emphasized that possession has an affirmative defense, while receipt does not. The Ninth didn’t buy it, and refused to treat (certain) affirmative defenses as factors that undercut the Blockburger analysis:

We . . . decline to consider affirmative defenses . . . that do not directly negate an element of the crime but instead address mitigating circumstances, as ‘facts’ that ‘require’ proof for purposes of the Blockburger analysis.

Id. at *4 (emphasis added).

The importance of this (new?) Blockburger rule isn’t lost on dissenting Judge Susan Graber, (left) who complains of a creating circuit split on this issue. Id. at *6 (Graber, J., dissenting).

How to Use: Receipt of child porn carries a five-year mandatory minimum; possession (absent priors) has no mand-min. How does the defense bar exploit Davenport to avoid the receipt mandatory-minimum? First, there are technical, forensic defenses to receipt that don’t apply to possession – recall our talk at the ND Cal Sex Crimes seminar. It is conceivable (though admittedly tough) that a defendant could manage a lesser-included “possession” win at trial.

Second, are indictments that allege both possession and receipt now arguably multiplicitous? (Recall that even without an objection below multiplicity isn’t waived for appeal! See United States v. Zalapa, 509 F.3d 1060, 1061 (9th Cir. 2007) (“We hold that a defendant who fails to object in the district court to multiplicitous convictions and sentences does not waive his or her right to raise a double jeopardy challenge on appeal.”))

For Further Reading: Does a quick plea to a straight possession charge (with no mandatory minimum) preclude a subsequent “receipt” prosecution? A great idea – but probably a no-go in the Ninth. See United States v. Kuchinski, 469 F.3d 853, 859 (9th Cir. 2006) (“Kuchinski sought to avoid that result with the claim that once he pled guilty to possession of child pornography . . ., he could not be tried for receipt of child pornography . . . .That was because, he said, the former was a lesser included offense of the latter. While the argument has some plausibility on its face, it is based on a flawed reading of double jeopardy law.”); see also blog here.

Kuchinski deserves a close second-look, though; its claim that there was no double jeopardy violation because these counts were “grouped” at sentencing may have ignored the impact of the receipt mand-min sentence. This is a sub-sub-sub field of the Double Jeopardy analysis: whether convictions for multiplicitous counts violate Double Jeopardy if the sentences are grouped. Can Kuchinski be reconciled with Davenport on this issue? More importantly, in a future case where the receipt mand-min precluded a possession downward departure, wouldn't possession/receipt convictions violate double jeopardy (even if they were "grouped" under the guidelines?) Merits some thought.



Drawing of Judge Susan Graber from law.com, at http://www.law.com/regionals/ca/judges/9circuit/graber.htm

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

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U.S. v. Lewis, No. 05-10692 (3-13-08). It is rare that there is a remand for a Speedy Trial Act violation. Rarer still for it to occur twice. Here, the 9th (Wardlaw joined by Hawkins) send a case back again for the district court to consider whether discrete continuances under the STA might cause the STA violation to be dismissed with prejudice. The defendant here was charged with conspiracy to import protected reptiles. He constantly asked to go to trial while the court granted continuance after continuance because of extradition problems with the codefendant, superseding indictments, and eventually loss of defense counsel. The 9th remanded the first time because of a STA violation; now, after yet another conviction, the case is remanded to assess all the pretrial delay. The 9th (nudge nudge, wink wink) states that: "In our view, these additional periods of delay may have exacerbated the prejudice to [defendant]...." O'Scannlain dissents, arguing that the district court weighed all the factors, and considered all the time, and did not abuse his discretion.

U.S. v. Gianelli, No. 07-10233 (3-20-08). The past can be a debt that remains unpaid, especially if there is a restitution order under the old Victim Witness Protection Act. The defendant plead guilty to mail fraud in 1987, and was ordered to pay $125,000 in restitution. Flash forward to now, and his arguments that the restitution can be barred by the state statute of limitations (1997). The 9th found that the act was not bound by a state statute of limitations, and so the federal government can collect at any and all times. (Note: one might be able to argue laches at some point, or abandonment).

Harrison v. Ollison, No. 06-55470 (3-20-08). A section 2255 petition was disguised as a 2241 claim, and so dismissed for lack of jurisdiction. The new evidence basis of claim was found wanting. As a 2255, it is a successor petition and barred.

U.S. v. Soto, No. 07-30011 (3-19-08). The defendant requested an instruction that the jury not draw an adverse inference from his refusal to testify. The court denied (!) his request because it was not made a week before trial, as the court required. The Supremes require a no adverse inference instruction if requested. Here, the 9th found that the refusal to give such an instruction is error, but it is not structural, and under a prejudice analysis, the refusal here was harmless. This is a per curiam (Canby, Graber and Gould), in which Graber and Gould both concurred. Graber would affirm the conviction on the procedural grounds that the court did not abuse its discretion in refusing the instruction because of timeliness under Fed. R. Crim. P. 30. The concern is for "orderliness" and the court appropriately weighed and balanced. (It still seems stingy given the credibility issues that were the defense.) Gould concurred finding that prior 9th precedent, Castenada, was wrongly decided, in that Castendada seemed to indicate that the model instruction for the presumption of evidence covered the "no adverse inference" instruction. The per curiam questions Castendada, while Gould outright state sit is wrong, and misconstrues the Supremes in Carter.

U.S. v. Davis, No. 06-10527 (3-19-08). The 9th remanded to strike a conviction on one count, and to determine, under Ameline, whether the sentence would have been different if the court had advisory rather than mandatory guidelines before it. The district court struck count four, stated that the sentence would not have been different, and then proceeded to increase substantially the sentence on a different count. "No way" says a per curiam 9th. The district court has to follow the remand, and it was limited. It struck one count, and stated "no" under Ameline. That was the end of it.

Case o' the Week: Ninth Unambiguous About Miranda Ambiguity, Rodriguez

Judge Milan Smith (left) delivers an important defense win on Miranda waivers. See United States v. Jose Rodriguez, __ F.3d __, 2008 WL 623982 (9th Cir. Mar. 10, 2008), decision available here. In Rodriguez, the Ninth finds that the old "clarification rule" survived the Supreme Court's limitations in Davis: an ambiguous assertion of Miranda rights at the outset of an interrogation must be clarified by law enforcement before interrogation can proceed.

Players: Big win by Las Vegas AFPD Jason Carr.

Facts: Rodriguez was stopped by a Park Ranger on suspicion of DUI. Id. at *1. The Ranger learned from dispatch that Rodriguez was a felon, then saw a pistol handle in the bed of Rodriguez’s truck. Id. Rodriguez admitted to a .40 caliber pistol under the driver’s seat; he was arrested and his two passengers, detained. Id.

The Ranger read Rodriguez his Miranda rights. When asked if he wanted to speak to the rangers, Rodriguez answered, “I’m good for tonight.” Id. A “short time later,” Rodriguez was questioned and gave a full confession.

He was charged with felon-in-possession and other federal crimes. Id. A magistrate denied Rodriguez’s Miranda challenge, holding “I’m good for tonight” was an ambiguous assertion of the right to silence. Id. at *2. The district court adopted the magistrate’s findings; a conditional plea followed. Id.

Issue(s): 1. Ambiguous? “Rodriguez argues first that this statement . . ., ‘I’m good for tonight,’ was an unambiguous invocation of his right to silence.” Id.

2. Duty to Clarify? “He next argues that, to the extent his statement was ambiguous, [the Ranger] was under a duty to further clarify its meaning before he or any other Ranger proceeded with interrogation.” Id.

Held: 1. Ambiguous? “We . . . hold the statement [‘I’m good for tonight’] to be, at best, an ambiguous invocation of the right to silence.” Id. at *3.

2. Duty to Clarify? “Prior to obtaining an unambiguous and unequivocal waiver, a duty rests with the interrogating officer to clarify any ambiguity before beginning general interrogation. In this case, the government cannot meet its ‘heavy burden’ of proving an initial knowing and intelligent waiver of Miranda with an ambiguous or equivocal reference to Miranda rights.” Id. at *5.

Of Note: This is a Big Case. Before ‘94, the 5th, 9th, and 11th Circuits had a broad “clarification rule.” Id. at *4. This rule required that “in the face of an ambiguous or equivocal assertion of Miranda rights, made at any time during interrogation, interrogating officers were required to clarify the statement before continuing the interrogation.” Id. In ‘94, the Supreme Court decided Davis v. United States, 512 U.S. 452 (1994). Five Justices in Davis rejected the clarification rule in the context of an ambiguous invocation of counsel after a valid Miranda waiver was obtained. Id. at * 4 (discussing and distinguishing Davis). The key issue for authoring Judge Milan Smith (and Judges Canby and Thompson) was whether the Ninth’s “clarification rule” survived Davis? Happily, it does. In a very thoughtful opinion, Judge Smith explains that the Davis decision only make sense if there has already been an valid waiver. Id. at *4-*5. Thus, in Rodriguez (or in any initial invocation case), the old “clarification rule” survives Davis: it remains the government’s “heavy burden” to show a clear and unambiguous Miranda waiver. (Here's hoping that the composition of this panel (a Reagan and a W. Bush appointee) will stave-off en banc and cert. interest . . . )

How to Use: To avoid the Davis rule, AFPD Carr argued the difference between invocation of the right to silence (Rodriguez) and the right to counsel (Davis). Id. at 4 & n.5. For the fifth time, the Ninth avoided this issue. Id.

A future case that involves: i) an ambiguous mid-stream invocation, ii) to the right to silence (instead of to counsel) deserves another run at Davis on this theory.

For Further Reading: For an interesting – though controversial – look at how law enforcement and courts have gutted the Miranda goals, see Professor Weisselberg’s piece, Mourning Miranda, available here. (Ernesto Miranda, the defendant, is shown right).

For another big (and recent) Ninth Miranda win, re-visit Anderson here.

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


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U.S. v. Rodriguez, No. 07-10217 (3-10-08). "I'm good for [this opinion]. "What does that mean? Lets change it to a response to Miranda warnings, "I'm good for tonight." Is it a waiver? Is it an invocation? It is ambiguous. As such, the police should have clarified rather than keep on questioning the defendant about a gun and silencer found in his car during a DUI stop, and to which defendant eventually admitted ownership. The district court said that it was unclear what the phrase meant, and the officers did not have to clarify because the invocation to silence had to be unambiguous. The 9th (Smith joined by Canby and Thompson) reversed, holding that the Supremes in Davis made the requirement of unambiguity apply to a prior waiver that was later equivocated. Here, there was no prior waiver and so the officers had to ascertain the meaning from the get go.

Congratulations to AFPD Jason Carr of the Nevada (Las Vegas) FPD office.

Manta v. Chertoff, No. 07-55353 (3-11-08). It's Greek to me, or at least to the petitioner, who is being extradited to Greece on charges of fraud. Extradition is primarily diplomatic, and controlled by treaties. Here, on challenges of dual criminality (a crime in both places), the 9th upheld the charges as essentially fraud in both jurisdictions. There was also sufficient probable cause and identity.

Case o' The Week: Unto the Breach, Urges Clifton in Cannel

Argue with the prosecutor or P.O., lose your third acceptance point. The rule isn't, thankfully, quite that stark in this plain error case, but that'll be the lesson bad AUSAs will take from it. See United States v. Cannel, __ F.3d __, 2008 WL 553742 (9th Cir. Mar. 3, 2008), decision available here. Judge Clifton (left) doesn't buy it. He would find a breach in the plea agreement when a Spokane AUSA holds back the third acceptance point because a defense attorney had the remarkable audacity to make a legal argument at sentencing.

Players: Hard-fought appeal by R&W Attorney Tracy Staab, Fed. Defenders E. Wa. & Idaho.

Facts: Cannel was busted when he e-mailed nude images of himself to a FBI agent posing as a 12-year old boy. Id. at *1. He confessed to trading images of child porn with others in on-line chat rooms. Id. He pleaded guilty to possession of child porn in a plea agreement that promised three levels off for acceptance if he “accepted personal responsibility for the criminal conduct, and provided accurate information during the sentencing process.” Id.

The P.O. went south and the PSR hammered Cannel with eight additional levels above the agreement’s guidelines, with added enhancements for distribution of porn and for the number of images. At sentencing, Cannel contested the much higher distribution guideline range because there was “insufficient evidence to support this enhancement,” and submitted a shrink’s report reflecting Cannel’s assertion that the e-mails to the 12-year old was “merely part of a fantasy.” Id. at *2.

The government conceded a mistake in the plea calculations, stood by the plea agreement’s calculations recommendations, but refused to move for the third acceptance point in light of the defense sentencing arguments. Id.

The district court agreed with the PSR’s higher calculations, gave two of the three acceptance points, and ultimately departed three-years below the PSR’s higher guideline range. Id. at *3.

Issue(s): “On this appeal, Cannel contends for the first time that the government breached the plea agreement [because, among other reasons, it did not move for the third acceptance point].” Id. at *1.

Held: “We review for plain error and find that the government did not breach the plea agreement with Cannel.” Id.

Of Note: The Ninth’s grasp of technological issues arguably lags far behind technological reality. Judge Clifton “gets it,” and in his concurrence he correctly argues that the government breached by not moving for the third acceptance point. Id. at *5.

At sentencing, Cannel’s attorney argued that the PSR’s theory – that images were found in a shared folder in a peer-to-peer (P2P) program on Cannel’s computer – was insufficient evidence for the distribution enhancement. Id. at *5. The defendant didn’t repudiate his earlier confession, and never denied distributing images in other ways. Id. The P2P argument is an interesting high-tech issue – but as Clifton emphasizes, it is not a denial of responsibility. Id. at *6. The majority’s failure to even acknowledge this distinction produces an opinion that will chill the adversarial process at sentencing (a process that the Supremes have hailed of late – see Kimbrough/Gall).

How to Use: Cannel is a must-read for defense counsel hit with the tsunami of child-porn prosecutions, because it illustrates the difficulty in resolving these cases. It has all the ingredients of a defense nightmare: a deal that misses (or intentionally ignores?) specific-offense adjustments, a P.O. that busts the deal, and an AFPD forced to choose between fighting dubious PSR theories and risking acceptance, or staying mum and eating eight additional levels.

The answer to this dilemma? Maybe (c)(1)(C) deals, when you can get them – but those are increasingly hard to find. An open plea? Maybe, but in this case, the momentum of the plea agreement’s agreed-upon lower range may have fueled the Court’s three-year downward departure from the PSR’s calculation. Cannel’s conundrum is a good illustration to share with child porn clients, when having that hard talk about hard choices.

For Further Reading: “• A total of 2,039 suspects were prosecuted for Federal sex offenses in 2006, representing about 2.5% of the 83,148 suspects prosecuted in Federal courts.

• The main sex exploitation offense referred to U.S. attorneys shifted from sex abuse (73%) in 1994 to child pornography (69%) in 2006.

• Convicted sex offenders sentenced to prison increased from 81% in 1996 to 96% in 2006.”

Department of Justice statistics on child porn prosecutions available here.


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

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U.S. v. Mendoza, No. 06-50447 (3-3-08). The government waited 8 years between indictment and arrest. Although the defendant was in the Philippines for a good part of that time, the government failed to notify him, or make any attempt to contact him about the tax charges. As a result, the government's dawdling results in a Sixth Amendment speedy trial right.

U.S. v. Cannel, No. 06-30590 (3-3-08). The defendant alleged a plain error breach of the plea agreement because the government objected to acceptance of responsibility and would not move for a third level. This was in a child porn case. The defendant objected to the PSR's enhancement for distribution of porn. The government responded and objected to any reduction for acceptance of responsibility because of the position the defendant took. The court overruled the objection to acceptance, but lacked jurisdiction to grant a third level because the government did not move for it. The problem with defendant is that he got a below guideline sentence, and so the 9th found no breach and no prejudice.

In re Copley Press, Inc., ex rel US v. Higuera-Guerrero, No. 07-72143 (3-4-08). You know that every federal judge pines for First Amendment cases; "ha-ha!," they'll exclaim, "real constitutional issues." So it is here, in a major narcotics case with cooperation, where the press wants to read all the plea colloquies and attachments and transcripts in a sealed criminal proceeding. The 9th (Kozinski) goes through the tests, finds various rights to see the documents, but finds in some a substantial government interest in sealing due to danger. Some parts of the colloquies get disclosed; some do not.

U.S. v. Alghazouli, No. 06-50422 (3-4-08). In this "green" era, the defendant argues that the law is not black and white. Here, it concerned regulations that forbid the importation of R-12 Freon, an ozone depleting substance. The 9th affirmed the convictions, holding that a regulation was indeed a law, but only when the statute specifies that a violation of the regulation is a crime.

Case o' The Week: Ninth Makes Up its Mind on Inability to Make Up its Mind, Bradley and Plurality Decisions

Win on one theory, win on two theories -- no matter how you slice it, still a win for the Bay Area's appellate powerhouse Dennis Riordan (left). The Ninth's recent order limiting the holding of a plurality opinion illustrates a trend in the Supremes and Ninth. See Bradley v. Henry, __ F.3d __, 2008 WL 540360 (9th Cir. Feb 29, 2008), Ord. Amend. & Denying Petit. Rehearing, decision available here.

Players: Admirable win by SF’s own appellate guru, Dennis Riordan.

Facts: Nicole Bradley shot a car’s driver during a carjacking and was found guilty at trial of murder and other crimes. See Bradley v. Henry, 510 F.3d 1093, 1095 (9th Cir. 2007). She raised several habeas claims, including a challenge to an in camera meeting about her case outside of her presence, and attacking the trial court’s refusal to allow retained counsel to represent her. Id. at 1099. District Judge Phyllis Hamilton denied the habeas petition.

An en banc panel of the Ninth reversed. Five judges (of eleven) joined the plurality decision; four concurred; two dissented (Judges Silverman and Tallman).

Issue(s): Five of the en banc judges would grant the habeas petition on two grounds: that the in camera hearing was unlawful, and that the refusal to allow a retained attorney into the case denied Bradley’s Sixth Amendment right to counsel. Id. at 1099 (Judge Noonan (author), joined by Judges Pregerson, Ferguson, Thomas, and Rawlinson).

Four judges concurred that the refusal to permit the retained attorney in the case was error meriting habeas relief. Id. at 1099 (Judge Clifton (author, concurring), joined by Judges Schroeder, W. Fletcher, and Berzon).

On eleven-member en banc panels, a win takes six. What is the holding of Bradley?

Held: "The plurality opinion has been joined by only five of the eleven judges on this limited en banc panel. Because that constitutes less than a majority of the panel, that opinion does not announce the law of the circuit. The precedential effect of this decision does not extend beyond the conclusions expressed in this separate opinion, which concurs in the judgment on more narrow grounds. See Marks v. United States, 430 U.S. 188, 193 (1977)." Bradley v. Henry, Slip. op. at1799, ord. (Feb. 29, 2008) (footnote added to page 1099 of separate Judge Clifton opinion).


Of Note: Maybe increasingly divided federal courts reflect a more divided society? Who knows why, but whatever the reason it is hard to deny that split opinions are increasingly common. Plurality and concurring decisions are becoming the norm in both the Supreme Court and the Ninth Circuit – look at the chaos of the Booker line of authority for proof.

When the new President sets up shop, it’s a fair bet that a bevy of judicial new appointments will aggravate splits. This Bradley order is interesting, because it is re-teaching the art of reading more frequent split opinions.

How to Use: Teasing the holding out of plurality and concurring decisions isn’t just an abstract concept – fights over what the true "holding" of a divided opinion has made a big difference in the Ninth. In February ‘06, we blogged the regrettable Williams decision, that tossed the "cat out of the bag" Miranda theory. See blog here. In Williams, the Ninth (arguably) adopted a factor in the "mid-stream Miranda" test that had been rejected by seven Justices in the Siebert plurality decision.

A far better example on how to read fractured opinions is an earlier Miranda case. See United States v. Rodriguez-Preciado, 399 F.3d 1118 (9th Cir. 2005). In Rodriguez-Preciado, Judge Berzon explains what to do when there is no clean "narrower" opinion in a plurality decision. It is the Ninth’s best primer on the art of divining the holding from a splintered opinion.

For Further Reading: Mary Whisner has a useful collection of articles on plurality opinions at her blog, here. An interesting article on judicial collegiality and its impact on unanimous decisions can be found here.

Come to think of it, if the federal judiciary is increasingly hostile to the rights of criminal (and particularly, indigent) defendants, maybe plurality decisions are good things. After all, an exploitable ambiguity is far better than a clear defense defeat. If that’s the case, keep up the good work, Supremes and Ninth!

Photo of Dennis Riordan by Lacy Atkins, San Francisco Chronicle.

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

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