U.S. v. Jimenez, No. 07-10399 (7-23-08). The 9th dialed "T" for drug trafficking when it comes to a prior conviction for unlawful use of communication facility under 21 USC 843(b). The defendant was convicted of a 1326, and given a 16-level enhancement for prior drug trafficking offenses. He appealed, arguing that use of a phone was not the same as trafficking, and he should just get the bump for an aggravated felony. The 9th (Duffy joined by B. Fletcher and Rymer) hung up on his argument. The 9th held, as did all the other circuits, that 843(b) is akin to drug trafficking.

Case o' The Week: The Fourth Reappears in Car Searches, Caseres

Did the subject of a warrantless car search have the skill of Houdini and the strength of Hercules? See decision at *20.

The Ninth ain't buying it, in a wonderful decision that restores some of the battered Fourth Amendment protections associated with car searches. United States v. Caseres, No. 06-50546, 2008 LEXIS 15575 (9th Cir. July 21, 2008), decision available here.

Players: Important win by CD Cal AFPD Jonathan Libby. Decision by Judge Pregerson, joined by Judges Bright (8th Cir.) and Wardlaw.

Facts: An unmarked L.A. cop car tailed Caseres’s car for blocks at 9:45 p.m. The cops were suspicious of Caseres’s failure to signal a turn and the car’s tinted windows. Id. at *2. [Ed. note: see what Whren has wrought!]

When Caseres lawfully parked, a uniformed cop got out and told Caseres to stop as he walked toward his house. Id. at *3. “Fuck you, I’m home,” the defendant replied. Id. As the cop tried to stall for time Caseres opined, “I’m going to kick your fuckin’ ass,” which earned him a shot of pepper spray, which then devolved into a footchase. Id. at *4-*5.

“Well after” he had been taken into custody, the cops searched his car and found a gun and ammo. Id. Caseres was charged with § 922(g), and entered a conditional plea to preserve his suppression motion. Id. at *6.

Issue(s): “We must decide whether Lt. Murphy had a reasonable basis to detain Caseres, and whether the warrantless search of the passenger compartment of Caseres’s car was constitutional as a search incident to a valid arrest, an inventory search, or a parole search.” Id. at *6.

Held: 1. Incident to Arrest? “The district court improperly held that the search of Caseres’s car was constitutionally permissible as a search incident to arrest. [W]e conclude that the search of Caseres’s car was characterized by neither the spatial nor the temporal proximity to the place and time of the arrest required to constitute a valid search incident to arrest.” Id. at *11.

2. Inventory Search? “We reverse and hold that the police lacked the authority to impound and conduct an inventory search of Caseres’s car – which was lawfully parked on the street two houses away from his residence – because doing so did not serve any community caretaking purpose.” Id. at *25.

3. Parole Search: “Because the record does not establish that Lt. Murphy was aware that Cal. Pen. Code § 3607 applied before he ordered the search of Caseres’s car, the search is not justified by the state’s interest in supervising probationers.” Id. at *30-*31 (emphasis in original).

Of Note: Because there’s so much of value to mine in Caseres, the parole search issue is an easily-overlooked nugget. Note that Caseres was on parole, and the cops knew it before the search. Id. at *29. In California, parolees for offenses committed after January 1, 1997, must agree to a warrantless search condition. Id. at *29. Here, however, the cop didn’t determine whether Caseres was on California parole, for a post-‘97 offense, before the car search. Id. at *29.

Hence a good, common-sense rule: the cops have to know the subject is on parole and has a search condition before that favorite excuse works for a warrantless search. Id. at *30-*31.

How to Use: The “search incident to arrest” holding is probably the rule with the broadest potential application in Caseres. The Court reviews the confusing law on this warrant exception. Id. at *12. In sum, there’s much conflicting law on the temporal and spatial limitations permitted to still permit a search. (“So much for bright lines.”) Id. at *23.

Caseres gathers the different scenarios, and concludes that – in this case – the defendant had been gone from the car too long, and was too far away, to justify the search. Caseres should be the starting point for this fact-intensive analysis in future “incident to arrest” search cases.

For Further Reading: Unfortunately, it is Judge – and not Justice – Pregerson, so he can’t decide the big issue: “whether law enforcement officers must demonstrate a need to preserve evidence relating to the crime of conviction to justify a warrantless vehicular search incident to arrest.” Id. at *20.

That’s the question the Supremes have up in Arizona v. Gant, 128 S. Ct. 1443 (2008). What the Honorable H.P. can do is to emphasize that Belton – the vehicle search case – has been “sharply criticized” by many Justices. Id. at *12 & n.5.

Judge Pregerson’s footnote five is the starting point for the right result in Gant. Of course, the right result is not always the SCOTUS outcome. See "Simple Justice" blog commentary here.

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


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U.S. v. Caseres, No. 06-50546 (7-21-08). The 9th drew a line when it comes to car searches. The police were patrolling in an unmarked car when defendant (oops) made a right hand turn without signalling and the police thought that his passenger windows were tinted too dark. The police began to follow the car, lost him, and found him again. Defendant had parked his car a block and a half away from his house, and was walking to his home. The police approached him, and defendant said some not nice things. A foot chase preceded, which ended with defendant, exhausted, being arrested. The police then waited a bit before searching defendant's car incident to arrest. A firearm and ammunition was found, which was a problem because the defendant had a felony, and was on parole. On appeal from denial of the suppression motion, the 9th (Pregerson joined by Bright and Wardlaw) said, "Whoa, the police can't just search the car because the defendant was arrested outside." The 9th does find that there was no probable cause to arrest him fort he traffic violations because such a turn, if it did not interfere with traffic, was legal, and who knows about the tint? However, there was probable cause to arrest him for threatening an officer. The 9th then went to the car search, and reverses the district court and suppresses the evidence because of a bad search. The opinion goes through all the justifications the government offers -- search incident to arrest, inventory, parole -- and finds them wanting. The 9th keeps going back to the fact that the defendant had left the car, and was going home. The car was parked close to his house, on a residential street, and all the so-called justifications for search, close to the defendant upon arrest, or need to secure the vehicle, were not present. The opinion provides a nice overview of the state of car searches in the 9th, especially when distance and time separates the arrest from the search.

Congratulations to AFPD Jonathan Libby of the Central District of California (Los Angeles) for the win.

Houston v. Schoming, No. 06-15523 (7-22-08). Okay, let's get it out of the way: "Houston, we have a problem," says the 9th (Larson joined by Canby). The problem arises from an attorney conflict-of-interest. Petitioner was charged with various counts of attempted murder and firearms resulting from a long-running feud between the petitioner and the victim and his family, the Chadwicks. The petitioner moved for a continuance so he could retain a lawyer. The denial of that motion was not error given the timing,and lack of basis. However, the attorney's motion to be relieved because of a conflict will result in a granting of the petition. The public defender office had represented the state's star witness, Chadwick, in a prior shooting at Houston. The lawyer stated that he was conflicted -- he felt that Chadwick got a raw deal, that he was innocent, and that there was motive in Houston now shooting back. The state trial court denied, as did the state supreme court on the record, basing the denial on the fact that Chadwick had waived attorney-client, the public defender had not personally represented Chadwick, and the shootings were not factually related (!). The district court acknowledged that the facts were related, but denied the petition because Chadwick had waived. The 9th held that the focus should have included petitioner's right for a conflict free counsel, and counsel's own ambivalence in turning on a former client. This deserved an evidentiary hearing. In dissent, Smith expressed concern about floodgates being opened as defender offices are conflicted off matters (ed note: happens all the time -- that's why there are alternate defender offices, contract lawyers, or panels), and because there was no showing of prejudice: the evidence the petitioner points to, like polygraphs of the victim and parole status, were arguably precluded under state evidentiary rules.

Congratulations to AFPD Anne Traum of the District of Nevada (Las Vegas) for the win.

Case o' The Week: Great Miranda Decision Involves No Confession - Miranda-Lopez and Aggravated Identity Theft

In a great decision invoking our beloved "rule of lenity," Judge Silverman holds that the aggravated identity theft statute - 18 USC Section 1028A -- requires proof that the defendant knew that the card used came from a real person. United States v. Miranda-Lopez, __ F.3d __, 2008 WL 2762392 (9th Cir. July 17, 2008), decision available here.

Players: Decision by Judge Silverman joined by Judge Berzon; dissent by Judge Bybee.

Facts: El Salvadorean Miranda-Lopez was arrested at the border when he was stopped in a car with two other men. (WL star cites not yet available). Miranda-Lopez’s identification card – in the name of “Garcia-Fregoso” – didn’t match his face or fingerprint. He was arrested and tried for illegal reentry and for aggravated identity theft, under 18 USC § 1028A. (Note that § 1028A carries a two-year mandatory minimum consecutive sentence).

The jury instructions did not require the government to prove that Miranda-Lopez knew that the I.D. actually belonged to another real person. The defense brought several Rule 29 motions before the verdict, but did not raise this “knowledge” challenge. The district court denied these motions and there was a guilty verdict – but the judge mused that the real § 1028 issue was this “knowledge” question.

Catching the hint, the defense finally raised the mens rea issue in post-verdict Rule 29 motion. The trial court denied the motion, holding the knowledge issue had been waived because it had not been articulated by the defense before the jury verdict.

Issue(s): “The issue here is whether the defendant must know that the identification he uses belongs to another person. In other words, does the adverb, ‘knowingly’ in the statute modify ‘of another person’ or merely ‘transfers, possesses, or uses’?”

Held: “Today we join the D.C. Circuit in holding that the crime of aggravated identity theft, 18 U.S.C. § 1028A(a)(1), requires proof that, among other things, the defendant knew that the means of identification belonged to another person. It is not enough to prove only that the defendant knew he was using a false document.”

Of Note: This is a great decision on a horrible statute, but the opinion is also of interest for its Rule 29 remedy. The majority and dissent agree that the sufficiency of the § 1028A jury instruction should be reviewed for plain error – and that there was not plain error because of (then) ambiguities in the law. Nonetheless, the panel remands for reconsideration of the Rule 29 motion, because Miranda-Lopez had finally raised the “knowledge” issue in a brief a week after trial. The panel holds, “Miranda-Lopez did not waive the issue by failing to raise it until after the jury was discharged.”

This is interesting Rule 29 law: it means the defense needn’t specify its theory of dismissal during pre-verdict Rule 29 motions in order to preserve legal arguments for dismissal (though the panel does observe, here, that the prescient trial court was on sua sponte notice about the mens rea issue).

How to Use: The two-year mand-min sentence of Section 1028A is the new hammer joyfully abused by lazy or fearful prosecutors to coerce pleas in otherwise triable cases. Miranda-Lopez creates a welcome new defense to this hated statute. Look for new model jury instructions on Section 1028A offenses in light of Miranda-Lopez, and make sure to submit revised instructions until the Ninth's model instruction committee gets around to this task.

Note, though, that this defense can still be challenging: as Judge Silverman muses, the new mens rea requirement “is not an insurmountable burden [for the government], especially in a case where the identification document contains someone else’s photo and does not appear to be a fake.”

For Further Reading: Boston AFPD Martin Richey has written an excellent outline on identity theft and aggravated identity theft, available here. Martin there chronicles a circuit split over the mens rea requirement at issue in Miranda-Lopez. The Fourth, the Eighth, and the Eleventh Circuits have found no “knowledge of real person” element. The D.C., and now, the Ninth Circuits require this mens rea element.

Let’s hope the Supremes let this split deepen a bit before snooping around this issue.



Image of the Honorable Barry Silverman from the Sandra Day O'Connor School of Law, at http://www.law.asu.edu/?id=1218

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


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U.S. v. Gonzalez, No. 06-50461 (7-18-08). The 9th affirmed the convictions of the defendant who, as a police officer, allegedly used his badge and uniform to sexually assault women. Charged federally with acting under color of authority to deprive women of their bodily integrity pursuant to 18 U.S.C. 242, he was convicted after trial. The victims testified. After one victim testified, and was challenged as to her recollection of times and dates, the government offered testimony to rebut an inference of recent fabrication. This was error, the 9th held, under Tome. The cross examination went to dates and places, and not to motive or bias. It was error for the court to let it in, but it was harmless. The credibility of the witness was not likely altered by the vouching; she was a credible witness in the jury's eyes with her 100% sure identification of the defendant. Other testimony about another victim was properly admitted for medical diagnosis. The court further did not err in precluding evidence going to the motive or bias of one victim, whose husband had violated a restraining order, as a motive. The fact that she was a prostitute came out, and the defense examined on that. The jury was aware of her possible motive to lie. The admission of other uncharged conduct under 404(b) was proper as to modus operandi. The 9th notes minor discrepancies with testimonies, but it did not feel that there was error in the convictions.

U.S. v. Singh, No. 07-30150 (7-17-08). In an alien smuggling case, the defendant was convicted of aiding and abetting a "brings to" the U.S. offense under 8 USC 1324. The defendant argued, under plain error review, that there was insufficient evidence to support the conviction of aiding and abetting bringing an alien to the U.S. At worst, he argued, under Lopez, 484 F.3d 1186 (9th Cir. 2007), he aided transportation within the U.S. The 9th (McKeown joined by B. Fletcher and Paez) nonetheless affirmed. There was sufficient evidence of defendant's efforts to aid the bringing of the alien to the U.S. through encouragement. Under the plain error standard, the efforts of inducing supported the conviction, although it was a close case because most of the other actions occurred after the alien was in the U.S.

U.S. v. Miranda-Lopez, No. 07-50123 (7-17-08). 18 USC 1028 concerns false identifications. the statute is confusing as to whether the defendant "knowingly" possessed an identification of another. That is, does the defendant need to know, as an element, that the identification he uses belongs to another? The case revolves around whether the adverb "knowingly" refers to "another person" or "possesses." The 9th (Silverman joined by Berzon) holds that it refers to the person. The 9th thereby joins the D.C. Circuit. This sets up a circuit split, as pointed out by Bybee in dissent, 4th, 8th and 11th circuits. The case is one of statutory interpretation, and the rule of lenity. The 9th faces two readings, and it seems, consistent with lenity, and with the focus of the language, to go with need to show that the defendant knew it was a false identification of another, rather than just a false identification in general. This has sentencing implications of course. Bybee in dissent argues that the other reading, with knowing possession, makes more sense in the framework of the statute, and in comparison with other statutory formulations.

U.S. v. Lopez, No. 07-35389 (7-16-08). The 9th ( Fisher joined by Gould and Ikuta) found the government's withholding of Brady information as to a principal informant "troublesome." The Brady evidence was a memo that called the witness "unreliable." The 9th chided and chastised the government for its actions. Although the 9th wrung its hands, it washed relief away because the district court did not have jurisdiction under AEDPA for a successor; only the circuit could grant. It declines to do so here, using AEDPA as a towel to dry any misgivings because the newly discovered Brady evidence was not so dirty to establish by clear and convincing evidence that a jury would have acquitted. As to the government's conduct, it was not "so grossly shocking as to violate a universal sense of justice." U.S. v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991).

Green v. LaMarque, No. 06-16254 (7-17-08). The 9th (Bea joined by W. Fletcher and Miller) find a Batson violation when the state used its preemptories to strike all six African-American prospective jurors for reasons that were pretextual. The 9th stresses that a court cannot simply adopt the prosecutor's reasons for striking at face value, but must test them against the prosecutor's other actions. Here, white jurors with similar backgrounds -- various jobs, relatives in prison, etc -- were not stricken.

U.S. v. Whitehead, No. 05-50458 (7-14-08). In an appropriate Bastille Day opinion, the 9th (per curiam -- Kozinski and O'Scannlain) affirm a variance sentence. Defendant was accused of pirating one million dollars of DirectTV access. He went to trial and was convicted. At sentencing, the court gave acceptance and then a variance from 3 years in prison under the guidelines to probation, 1000 hours of community service, and restitution. Defendant had presented evidence of rehabilitation (new life, new work), family responsibilities (ill mother, custody of his young daughter, plus a recent puppy), the offense was non-violent and not a threat, and restitution. The 9th in a per curiam stress that the Supremes have empowered district courts. Appellate courts, reviewing sentences, cannot just say that they would have given a different sentence. Here, the 9th affirmed the variance because the district court weighed and balanced 3553 factors, and justified its sentence appropriately. This opinion has a nice and useful formulation of the standard to be used, and the role of the district court, and that a non-guideline sentence was not presumed to be unreasonable. Bybee dissented, arguing that "abuse of discretion" was not a rubber stamp, but meant that the court had a definite and firm conviction that there was clear error. Here, to Bybee, the defendant showed no real acceptance, was situated like many other defendants (plus a puppy), supposedly got away with $400,000 in profit, and thwarted the guidelines.

Bybee also wrote that the appellate court had to enforce some sort of "Platonic equality" in sentencing. This ideal "Platonic equality" smacks of substantive due process, and that seems to have been a factor in sparking the Supremes sentencing revolution. Of course, if one uses Platonic equality, one also has an image of 3553 factors flickering in dark sentencing caves, and various policy revels at sentencing symposia.

In addition to Bastille Day (storming a prison to release inmates -- a form of supervised release?), today is also the anniversary of the Alien and Sedition Act. The chill in the air may not just be the summer AC.

Case o' The Week: Fraud loss of $245,126 is not over $10,000, Kawashima and Taylor Categorical Analysis

A slow week in the Ninth has us stretching back a bit to the intriguing July 1st decision of Kawashima v. Mukasey, __ F.3d __, 2008 WL 2579212 (9th Cir. July 1, 2008), decision available here. Though technically an immigration case, Kawashima is an important decision in the criminal context as well -- particularly in fraud cases involving non-citizens. Beware, however, that Taylor issues are bouncing around en banc (and possibly, cert.) reviews -- and a developing little Fifth/Ninth Circuit split doesn't help matters.

Players: “Special” cert. petition – er, concurrence – by Judges O’Scannlain and Callahan.

Facts: Akio and Fusako Kawashima were Japanese citizens and US Legal Permanent Residents. Id. at *1. Mr. Kawashima pleaded guilty to “false statement on a tax return,” and his plea agreement said the actual tax loss was $245,126. Id. The INS tried to remove him, alleging this was an agg felony because it was a fraud offense with a loss amount over $10,000. Id.; see also 8 USC § 1101(a)(43)(M)(i). The I.J. and the B.I.A. agreed – as did this Ninth Circuit panel, the first go-around. Id.

The day after the panel's first decision, the Ninth decided Navarro-Lopez v. Gonzalez, 503 F.3d 1063 (9th Cir. 2007) (en banc) (blog here), and the panel (grudgingly) revisited its original Kawashima decision.

Issue(s): 1. Is tax fraud categorically an aggravated felony, when the statute does not contain an element that the fraud loss be over $10,000?

2. Can the court look the documents of conviction, to determine if the fraud loss was over $10,000 and – therefore – was an aggravated felony?

Held: 1. “[The tax fraud statute does not] required proof of monetary loss in excess of $10,000 . . . and is “too broad to be a categorical match.” Id. at *2. [T]he Kawashimas’ prior convictions do not qualify as aggravated felonies under the categorical approach.” Id.

2. “[B]ecause the statutes to which the Kawashimas pled guilty to violating do not require proof of any particular monetary loss, we do not examine the record of their convictions to determine whether they necessarily pled guilty to causing a loss in excess of $10,000.” Id. at *5.

Of Note: Much is bubbling in the jurisprudential goo of the Taylor categorical analysis. The Kawashima panel’s reluctant concession that tax fraud can never qualify as an agg felony is followed by a “special concurrence” that reads a lot like a cert. petition (let's whistle past the graveyard).

Here’s three other big Taylor issues that are percolating in the Circuits. First, say the statute of conviction is missing an element that the “generic” offense requires – like here, a loss amount over $10k. Can the court look at the plea agreement of the crime of conviction, find that the loss clearly exceeded this amount, and hold that the conviction is an agg felony? No, after Judge Harry Pregerson’s wonderful en banc decision in Navarro-Lopez – but one has to concede that a chunk of the Court is not keen on that rule.

Issue two: assuming that the Court finally gets around to the modified categorical approach, can it use cruddy evidence like minute orders in its analysis? The Ninth is considering that question now, in the Snellenberger en banc case.

Finally, is the California burglary statute similar to the federal tax fraud statute – a crime that can never be a categorical agg felony because it is missing an element? “Yep,” argues appellate guru Steve Hubachek in a righteous Federal Defender amicus in Snellenberger (and he’s right).

How to Use: Kawashima is an immigration case with important criminal ramifications. First, does this case relieve defense counsel of agg felony worries in fraud cases? Traditionally, non-citizens defendants have had to beg, plead, snitch and fold to dodge fraud convictions that would have been agg felonies. Maybe this decision takes away one arrow from the government’s quiver, allowing more non-citizen fraud defendants to fight their cases? Deserves more thought.

The case also illustrates that one can’t take enhancement priors for granted after Taylor. Here, a tax fraud of over $200k isn’t a “fraud over $10,000” in the agg felony analysis. In the Snellenberger amicus, Hubacheck persuasively argues that a California burglary isn’t a Career Offender predicate “burglary” because the California crime doesn’t have the “unprivileged entry” element required in the federal statute. These close Taylor analyses aren’t easy or intuitive, but their outcomes can be the single most important issue in a defendant’s or alien’s case.

For Further Reading: As our Texas colleague Brad Bogan has noted, Kawashima marks a squirrely split between the Fifth and Ninth Circuits. See Fifth Circuit blog here. The Fifth agrees with the Ninth’s good Taylor rule in Navarro-Lopez, but nonetheless holds that in an agg felony analysis the amount of a fraud can be found by a review of the underlying conviction documents (maybe this is a modified, modified-categorical analysis? A revised modified-categorical analysis?). See Arguellas-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. 2008) (decision here, blogged here).

Confused yet?

Thanks to Arizona AFPD Brian Rademacher, for alerting the Defender community to the Kawashima decision.

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

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Alternatives To Incarceration: The Sentencing Commission Looks At How Sentences Are Being Implemented

The Sentencing Commission has invited federal defenders to participate in its Symposium on Alternatives to Incarceration in Washington, D.C., on July 14 and 15, 2008. In preparation for the symposium, we have prepared an article entitled The Sentencing Commission, The Bureau of Prisons, And The Need For Full Implementation Of Existing Ameliorative Statutes To Address Unwarranted And Unauthorized Over-Incarceration, which is available here. We explain how sentences are being executed to require more actual custody time, at the cost of hundreds of millions of dollars, due the failure to fully implement statutes that provide for good time credits, incentives for substance abuse treatment and boot camp participation, sentence reductions for “extraordinary and compelling circumstances,” credit for time in custody and concurrent time, and community corrections. The article not only provides estimated savings from full implementation of ameliorative statutes, we also trace the litigation history, which provides an update for our litigation outline, which is available here. The hard-to-find supporting documents are posted here.

U.S. v. Salman, No. 05-10093 (7-7-08). Defendant said "the check's in the mail" to the IRS, and actually submitted a "sight draft." Never heard of it? Well, the IRS wasn't too keen on this type of instrument that is non-negotiable and is essentially an instrument paid only between two parties and, well, it was fictitious. Defendant's attempt to ante in this Texas Hold'em tax game was $250,000. The IRS was not amused, called the bluff, and the sight draft was cited as fraudulent, and charges were brought under 18 USC 514(a) for passing a fictitious instrument. The defendant was convicted at trial; his defense was (not helped by his calling a witness who testified they researched how to create fictious sight drafts (is there a web seminar on this?). On appeal, he raises the argument that the instrument fell outside of the statute's scope because it was npt negotiable, and it did not have the hallmarks of an actual obligation. "Nice try," said the 9th. The 9th (Gould joined by Tashima and McKeown) found that it did fall within the meaning of 514, and that the reach of 514 covered not only the sight draft but also the victim (i.e. the government).

U.S. v. Fuller, No. 07-30114 (7-8-08). Sometimes you have to ask, "what was he thinking?" This is one of those cases. The defendant drove up to a POE on the Idaho/Canadian border, and asked the border agents if he could deposit his gun for safe-keeping during his visit to Canada (no guns allowed) because he was an off-duty law enforcement officer. "Sure," the agents said, "and by the way, who are you with?" "Oh," he said, "I am a Special Response Agent." (Using air quotes?) He then showed them a badge, and gave them an identification card that read "United States Special Response Department Anti-Terrorism Unit." Pressed further, the defendant (you see where this is going) said this was a State Department unit. He then leaves. Maybe he was a fanboy of law enforcement, or pretexting, but after he returned a week later, he was arrested. While he was gone, the border agents, thinking his statement was a mondegreen, checked with headquarters, and discovered there was no such unit and that the defendant was not law enforcement, off-duty, or duty. The government, concerned he might be a wingnut (dirty bomb?), did not give him a mental health day, but prosecuted him for possession of an identification document that appears to be issued by the U.S. which is stolen or produced unlawfully (18 USC 1028(a)(6)). The facts were not in dispute; the trial was quick; and the issue presented was whether the government had to prove that the identification document appeared to be issued by a real U.S. agency. The 9th ( Tashima joined by Kleinfeld and Tallman) hold that it does not. The 9th concluded that the documents did not have to be purportedly from an actual agency under the statute; it had to be enough to create a presumption or to be understood as being issued by the U.S. The 9th went on to clarify that the government had to prove two elements in this offense: (1) the document appeared to be for identification and appeared to be issued by the U.S.; and (2) the defendant knew the document was stolen or produced without U.S. authority. The indictment stated the elements; the instructions sufficiently captured that the document had to be produced by the authority of the U.S., and the government's burden was not shifted to the defendant. There was also sufficient evidence the government proved those elements here.

Case o' The Week: Warr - huh - What is it Good For? (Absolutely Nothing).

Edwin Starr's classic tune, "War" isn't quite the apt fit suggested in the title of this blog entry: the Ninth's recent sentencing decision in Warr is "good for" a little something -- though it takes a close read to find the silver lining in this dark cloud. United States v. Warr, __ F.3d. __, 2008 WL 2598891 (9th Cir. July 2, 2008), decision available here.

Players: Decision by Judge Tallman, joined by Kleinfeld and Tashima.

Facts: Jonah Warr was a mentally-ill 19-year old who started up to twenty forest fires in Montana. Id. at *1, *2. After pleading guilty to nine counts of arson, he proceeded to sentencing with a guideline range of 70-87 months. Id. at *2.

Montana District Judge Molloy departed upwards to 120 months with a § 3553(a) variance. Id. at *4. Among the factors used by Judge Molloy was a Bureau of Prisons study on recidivism that posited younger offenders rescinded more often – the court estimated that Warr “had a two-out-of-three chance of recidivating.” Id. at *3. Those odds weighed in favor of a longer sentence. Id.

The court had not noticed or disclosed the BOP report to the parties before sentencing. Id.

Issue(s): “Warr takes issue with the district court’s apparent reliance on the Bureau of Prisons’ study. According to Warr, this reliance was problematic because the study was not part of the record, it did not take into account mental illness, and it was not provided to the parties in advance of the sentencing hearing.” Id. at *8.

Held: “Because the district court relied on this study, it should have notified Warr of it before the sentencing hearing.” Id. at *9. [But, ultimately, the sentence is upheld on plain error review.]

Of Note: When we first heralded the Apprendi revolution, some of our grizzled colleagues warned against greater discretion for a sentencing court. Warr vindicates those warnings. Judge Tallman here trumpets the district court’s discussion of the § 3553(a) factors as a “model of thoroughness and careful deliberation.” Id. at *6. With all due respect, that isn’t the impression the opinion gives. For example, the sentencing court poached (negative) diagnoses from the defendant’s shrink to increase the sentence, but rejected the shrink’s treatment recommendations (without explanation). Id. at *7.

Policy wonks can debate the overall impact of Booker, but Warr illustrates that among the victories there will be some losers under an advisory guideline system.

How to Use: June brought us the lousy Supreme Court decision in Irizarry v. United States, 128 S. Ct. 2198 (2008). In Irizarry, the Court held that Federal Rule of Criminal Procedure 32(h) does not require notice of a court’s intent to impose a § 3553(a) upward variance. Id. at 2200. (Contrast this to an upward departure from the guideline range, which does require notice). Warr’s one redeeming holding is that – Irizarry aside – a sentencing court must provide notice of facts used to impose an upwards variance. Id. at *8.

Here, the district court erred because it did not provide advance notice of the BOP study before it used it to impose an upward § 3553(a) variance. Warr lost on appeal, however, because the defense didn’t object at sentencing, leading to plain error review. Avoid plain error – object when the district court ruminates on facts, articles, and private phone calls to the Sentencing Commission or to the BOP that weren’t part of the sentencing process.

This principle might also extend to the government’s new cynical gambit of “instructing” Article III judges to review child pornography with agents before sentencing. (A bald ploy to inflame emotions at sentencing – particularly when there is no factual dispute over the nature of the images). Cite Warr, and insist on being there – maybe with the client? – during this review.

For Further Reading: Eleven years ago an en banc court of the Ninth decided United States v. Sablan, 114 F.3d 913 (9th Cir. 1997). This opinion upheld a whopping sixteen-level upward departure for a Guam case involving a grenade lobbed towards a post office. Id. at 914. Bad news for Sablan, but – oddly – an important development for the defense bar. Sablan signaled increased discretion to depart from the guidelines, and was later cited in support of the district court’s broad discretion to depart downwards. See e.g., United States v. Lipman, 133 F.3d 726, 730 (9th Cir. 1998).

Warr is the Sablan for the post-Booker era. Note that a 38% upwards § 3553(a) variance survived “reasonableness” review in Warr. Use the Tao of Warr to support the 38% downwards variance in your next sentencing case.


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


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Tablada v. Thomas, No. 07-35538 (7-3-08). How to calculate "good time" shows BOP at its worst. Should good time of 54 days a year (85%) be calculated on the sentence imposed (the measurement used for example in calculating criminal history scores) or rather on the time actually served. The former is easy; the latter is complicated. The former gives a few days break to inmates; the latter takes the harshest interpretation possible. The former saves the government millions of dollars annually; the latter costs millions. Yet, under the deference given to agencies, the BOP interpretation continues because BOP is supposed to have the expertise. A number of challenges have been raised against the calculations, all of which have been denied by the 9th. Here, petitioner argues that because BOP never complied with the APA requirement to articulate a rational basis for its interpretative decision, it should be struck down. The BOP concedes the procedural infirmity, but argues that business should continue as usual. The 9th (Gutierrez joined by Berzon and Bea) agree. It would be too much trouble essentially to change the calculations, and the interpretation is somewhat rational, and has been applied even-handedly. The 9th finds the BOP's approach as outlined in its policy statements persuasive, and so denies the petition. The BOP will fix the procedural remedy. In the meantime, inmates languish for a not unreasonable agency interpretation.

U.S. v. Byun, No. 07-10254 (7-1-08). Defendant plead guilty to importing into the U.S. an alien for purposes of prostitution. The factual basis stated that the alien was a minor. The court imposed a sex offender registration requirement under SORNA, and defendant objected. On appeal, the 9th (Berzon joined by Bea and Gibson) affirmed, holding that importation of a minor for prostitution purposes is akin to solicitation of a minor, and is also like "transportation with intent" sex conduct. The purposes of SORNA match up with this offense, and language in the statute is broad enough to cover such importation. The defense argument that the minor might not have engaged in prostitution is specious given the purpose of importation, and would nonetheless fall under the catch-all.

U.S. v. Warr, No. 07-30125 (7-2-08). The defendant plead guilty to nine counts of starting a wildfire arson. He faced a guideline range of 70 to 87 months, but the district court, based on evidence adduced and presented at a sentencing hearing, varied upwards to 120 months. The court explained its reasons as being concerned with the defendant being a borderline psychopath pyromaniac, with a history of violence and compulsive behavior, with an extensive prior record, and who set 20 fires. The defendant appealed, arguing that loss should not have included fire suppression costs, and that the sentence was unreasonable. The 9th (Tallman joined by Kleinfeld and Tashima) affirmed. The 9th found the sentencing "exemplary," with the court weighing and considering the various 3553 characteristics, and assessing what the sentence should entail. The court did not lose sight of the forest for the trees. And yet, What is Warr good for? Absolutely nothing? No, because the 9th found that the court did err in considering facts -- here a recidivist study by the ever friendly BOP on defendants with similar offenses (2 out of 3 chances of repeating) -- that were not disclosed beforehand. The 9th emphasized that Rule 32(i)(1)(C) requires the disclosure of all relevant factual information to the defendant for adversariel testing. This was not done here. The court may have relied on the study, suspect as it might have been, but because there was no objection, it was reviewed under plain error and found harmless.

So what can we take from this:

-- The Supremes in Irizarry, 2008 WL 2369164, may not require notice of a variance, but the rules do require disclosure of relevant sentencing facts. There must be a basis for a variance, and the basis must rest on disclosed facts. See Gall/Kimbrough.

-- It is essential therefore that the court state what facts it is relying on and counsel must make sure she has seen and tested those facts.

-- No facts, no variance. It has to be tested for reasonableness.

Note: The 9th stated that while the district court should not have cited the recidivism study (and by inference relied upon it) without first notifying the parties, it does not amount to plain error. Given that there was error, was the 9th wrong to state that defendant's argument was "without merit?" I think so. The defendant did get the 9th to say that the court erred, so there had to be some soundness to the argument and hence not meritless. Further, the 9th's confidence that the district court's justification for the sentence was "well-reasoned and justified" might not be so if the defendant had in fact challenged the recidivism study.

U.S. v. Evans-Martinez, No. 05-10280 (July 2, 2008). This is an important sentencing case to be read in conjuncture with Warr above. The 9th (Beezer joined by Fisher and Timlin) vacate a sentence and remand for resentencing because the district court failed to give him notice of its intent to depart from the guidelines. This was a child pornography case, and the defendant cooperated. He faced a mandatory minimum 10 years, and a guideline sentence of 10 years. The district court commented on the "disturbing" nature of the case, and sentenced to 15 years. Although the case was post-Booker, and the court recognized the guidelines were advisory, the government still conceded at oral argument that the failure of notice was plain error. The 9th holds therefore that the notice requirement under Rule 32(h) requires the district court to provide notice of its intent to depart from the guidelines post-Booker as it did pre-Booker. Moreover, the error was plain and required vacation of the sentence. The 9th reasons that the "[p]arties must receive notice the court is contemplating a departure to ensure that issues with the potential to impact sentencing are fully aired." The 9th also finds that its holding is consistent with Irizarry. Although Irizarry holds that Rule 32(h) does not require notice before imposing a variance, there is a distinction, recognized explicitly by the Supremes, between a variance and a departure. Irizarry recognizes a departure as occurring within a guideline framework; and is a term of art. Irizarry therefore does not extend to departures, but is limited to variances. There is no tension between Rule 32 notice for departures and no notice for variances because the Supremes define the scope, and seemingly approves of the continued application of Rule 32(h) and Burns to departures post-Booker.

So, we can take from Evans-Martinez and from Warr (or, losing the battle but winning the war):

-- Post-Booker, Rule 32(h) and Burns still require notice of departures from the guidelines.

-- Variances are under 3553; they are not departures.

-- Irizarry does not require notice of a variance,

--The 9th in Warr requires disclosure of facts for a variance under Rule 32.

--Therefore, the 9th in Warr and Evans-Martinez require the disclosure of all facts under Rule 32 for either a departure or a variance; and notice of a guideline departure under Rule 32. Facts must be tested for any departure or variance, and really for any sentence, guideline or non-guideline, to allow for a reasonableness review.

Notice is dead; long live Notice! Variance notice under Irizarry may have died, but guideline notice lives on, and facts must be disclosed in all sentencings. Thus, the practical effect may be to have a notice requirement.

U.S. v. Davis, No. 07-30219 (6-30-08). The 9th (N. Smith joined by Tallman and Clifton) address curtilage in a remote rural homestead in Oregon growing marijuana. Applying the Supremes test (been there, "Dunn" that) for curtilage, the 9th holds that the facts that lead to probable cause (smell of green growing marijuana, humid air coming from a remote pipe, unprotected space), all weighed against the observations made by law enforcement being in the curtilage. The 9th also held that a relative who happened on the scene, and admitted that he "knew everything" was properly subjected to a Terry stop, although a tin of hashish oil was suppressed.

Note: Growing marijuana has certainly gone upscale. The homestead was 40 acres; had a workshop, with a freezer, refrigerator-freezer, shower, bathroom, barbecue pit outside, and a walk-in 700 bottle wine cellar.

U.S. v. Mayer, No. 07-30274 (6-30-08). The 9th, with the same line-up as above (N. Smith joined by Tallman and Clifton), hold that Oregon's first degree burglary is a categorical crime of violence for ACCA purposes. The 9th also affirms the search and seizure of the defendant for probable cause (a telephone call that of his whereabouts with some collaborating evidence that he did in fact live at the site), and his probationary status.

U.S. v. Harrell, No. 07-10238 (6-30-08). The 9th (Brunetti joined by Reinhardt and Fisher) order the government to return forfeited property, such as satellite receivers, smartcards, computers , hard drives and more, because they are not illegal, and have not been modified for an illegal purpose, and were not proceeds of an illegal scheme. The government had charged the defendant with pirating signals. The case was dismissed after the court granted the defendant's suppression order. The government here failed to show that the property was altered or designed for illegal purposes.

Congratulations to FPD Dan Broderick for getting the stuff back.