Case o' The Week: 9th + § 211 = +16, Becerril-Lopez and Categorical analysis

An order amending a June decision (and, unfortunately, denying rehearing en banc) gives us an opportunity to reach back a bit in this slow August week in the Ninth Circuit. See United States v. Becerril-Lopez, __ F.3d __, 2008 WL 3982507, ord. (9th Cir. Aug. 29, 2008), decision available here.

Players: Hard-fought appeal by San Diego Assistant Federal Defender Stephanie J. Lacambra. Opinion by Judge Hall (left), joined by Judges Pregerson and Hawkins.

Facts: Becerril-Lopez was convicted of illegal reentry after trial and sentenced to 100 months. Id. at *1. His sentence was enhanced 16 offense levels because he had a robbery conviction, under California Penal Code § 211. Id. He appealed.

Issue(s): “Among other claims, Becerril-Lopez argues that his prior conviction under . . .§ 211 does not qualify as a ‘crime of violence’ under the sentence enhancement provision for illegal re-entry crimes.” Id. at *1.

Held: “[W]e approach the issue as a question of first impression.” Id. at *5. “We hold that it does, and we affirm.” Id. at *1. “[W]e hold that a conviction under Cal. Penal Code § 211 could only result from conduct that constitutes a ‘crime of violence’ for purposes of U.S.S.G. § 2L1.2.” Id. at *8.

Of Note: The sixteen-level specific offense adjustment at issue in this case applies if a deported alien had been convicted of a “crime of violence.” Id. at *5. The question, thus, is whether California Section 211 robbery is a “crime of violence” (a question that had been unresolved in the Ninth).

Note that Section 211 had been deemed a “crime of violence” under the Career Offender Guideline, USSG § 4B1.2. Id. at *5 (citing United States v. McDougherty, 920 F.2d 569 (9th Cir.1990)). That holding does not, however, control this analysis – which hinges on the definition of “crime of violence” in the illegal reentry guidelines, § 2L1.2.

Becerril-Lopez well-illustrates a particularly tricky area of federal practice: different definitions of the same term can have a profound impact on sentencing exposure. For example, because of inconsistent federal definitions the term “crime of violence” can mean different things depending on the statute at issue – 18 USC § 16, the Career Offender guidelines, the illegal reentry guideline – even the Bail Reform Act! A predicate conviction can often qualify as a “crime of violence” under one of these statutes, but not qualify under another.

Don’t be cowed by a P.O. or AUSA that touts Career Offender authority in support of a specific offense adjustment in the illegal reentry context. The analyses are as like as cheese and chalk – a fact often lost on our Worthy Opposition.

How to Use: Though the San Diego Defender didn’t win (in this case), the decision reveals how that office is methodically attacking California priors that trigger the whopping specific offense adjustments. Here, Assistant Defender Lacambra attacked Section 211 as over broad in six different ways. Id. at *6. The attacks didn’t win for this particular statute, but might for another . . . like burglary.

As we’ve noted before, San Diego Chief Appellate Attorney Steve Hubachek is taking on the California burglary statute as overbroad, because unlike the “generic” federal definition California Penal Code Sections 459 and 460 do not contain an “unprivileged entry” element. Cf. United States v. Rodriguez-Rodriguez, 393 F.3d 849, 852-53 (9th Cir. 2005) (discussing Cal. Penal Code § 459). That issue (in a Defender amicus) was argued before an en banc court of the Ninth Circuit on June 25th of this year. See United States v. Snellenberger, C.A. 06-50169.

The beauty of the admirably aggressive San Diego approach is that the Penal Code is often amended – as are the guideline definitions of predicate convictions. Each new iteration presents a new opportunity to take this issue back up again. Hundred-month sentences for illegal reentry defendants (as happened here) should come with a litigation price.

For Further Reading: How does Justice feel about all this “categorical approach” litigation? Un-enthused (un-surprisingly). See DOJ Comments to United States Sentencing Commission, available here.


Photograph of Judge Hall from http://usinfo.state.gov/journals/itdhr/1296/ijde/pitts.htm.

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


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Case o' The Week: Bybee, Redux - Great Fifth Amendment Decision on "Custodial" Interrogation in the Home, Craighead

To the left of Judge Tallman, and to the left of Judge Wallace, is a smiling W. Bush appointee, Judge Jay Bybee.

Literally, too.

This week's excellent opinion in Craighead means great back-to-back decisions by Judge Bybee, with the Straub immunity case delivered last week. See United States v. Straub, 2008 WL 3547541, (Aug. 15, 2008), decision available here, blogged here; United States v. Craighead, 2008 WL 3863709 (9th Cir. Aug. 21, 2008), decision available here.

In Craighead, Judge Bybee, joined by Judge Thomas and visiting district court judge Frederic Block, create a welcome new rule in the Ninth Circuit, regarding custodial interrogation in the home that triggers Miranda protections.

Players: Decision by Judge Bybee, joined by Judge Thomas.

Facts: Craighead was targeted for a home search for child porn after an FBI Limewire investigation. Id. at *1. Three law enforcement agencies were present during the search – eight officers, some armed, some wearing flak jackets. Id. The interviewing FBI agent said that Craighead was “free to leave.” Id.

Craighead was taken into a storage room, the door was closed, and he was interrogated for twenty to thirty minutes without Miranda warnings. Id. at *1. One officer stood with his back to the closed door. Id. at *2. Craighead confessed. Id. at *3.

The district court denied the Fifth Amendment suppression motion, holding that the interrogation was not “custodial.” Id. at *4. Craighead took a conditional plea and appealed. Id.

Issue(s): “The question presented in this case is one of first impression in our court: under what circumstances under the Fifth Amendment does an interrogation by law enforcement officers in the suspect’s own home turn the home into such a police-dominated atmosphere that the interrogation becomes custodial in nature and requires Miranda warnings?” Id. at *1.

Held: “[O]ur analysis considers the extent to which the circumstances of the interrogation turned the otherwise comfortable and familiar surroundings of the home into a ‘police-dominated atmosphere.’” Id. at *7. “We reverse the district court’s ruling that the interrogation in Craighead’s home was not custodial and that Miranda warnings were not required. Craighead’s self-incriminating statements should have been suppressed.” Id. at *1.

Of Note: It is of considerable interest to read Judge Bybee’s sensitive discussion of conditions of interrogation in Craighead. Id. at *7. In the Straub blog below, one commentator observed that Judge Bybee had recently been met with protestors at Harvard Law School. They challenged Bybee’s role in the notorious DOJ “torture memorandum,” a legal defense of harsh interrogation techniques that eventually produced the atrocities in Abu Graib. See editorial here.

And yet, in Craighead, in Straub, in Castillo, and Heredia, Judge Bybee has not only stood up against the government and for constitutional protections – he has authored decisions that create important new rules for the defense. Truth is, he’s a much better defense draw than many Clinton appointees.

Recall the great Chief Justice Earl Warren, who was “conscience-stricken” over his earlier role in the internment of Japanese prisoner’s in WW II? See article here. There are those who have posited a relationship between that guilt and Justice Warren’s later historical expansion of civil rights and liberties. It is too early in Judge Bybee’s career to claim that this causal relationship applies here. Thus far, however, it is fair to observe that this is a far more complex and nuanced judge than the DOJ torture memo would suggest.

How to Use: Craighead finally reverses the trend that treated in-home interrogations as non-custodial. The decision lists factors that go into what makes a home interrogation custodial, triggering Miranda:

“(1) the number of law enforcement personnel and whether they were armed;

(2) whether the suspect was at any point restrained, either by physical force or by threats;

(3) whether the suspect was isolated from others; and

(4) whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made.” Id. at *8.

This is admittedly a fact-intensive inquiry – and every case won’t have Craighead’s facts – but this valuable decision clearly turns the tide against non-Mirandized home confessions (a frequent child porn fact pattern).

For Further Reading: “Home is the place where, when you go there, they have to take you in.” Judge Bybee quotes Robert Frost’s poem, “The Death of the Hired Man,” in support of his argument that the home enjoys special constitutional protections. Id. at *6.

It is a great poem, both on what “home” means and on what we in the defense bar do; “Mary” in the poem is a compelling mitigation advocate. The entire poem can be found here.



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

Photo of Judges Bybee, Tallman and Wallace by Ralph Fountain, from http://www.reviewjournal.com/lvrj_home/2003/Oct-18-Sat-2003/news/22397198.html


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U.S. v. Jaeger, No. 06-30621 (8-18-08). Let me not to the marriage of true minds admit impediments, but, said the court, you really should think about the Fifth Amendment consequences. The wife, who was going to testify on defendant's behalf, and who had entered into a plea agreement in the same conspiracy and was awaiting sentencing, then changed her mind. She spoke with her counsel (who was not there), and elected to take the Fifth. The defendant was convicted (324 mos) on meth and gun charges, and on appeal argues that the trial court improperly dissuaded his wife, and witness, from testifying, and so interfered with his right to present a defense. The 9th (Graber joined by Alarcon and Rawlison) affirmed, finding that the court's admonishment was "mild" and appropriate under the circumstances (i.e. your choice, but think about it, and talk to your lawyer).

U.S. v. Hernandez-Orellana, No. 06-50584 (8-20-08). The 9th (Tallman joined by O'Scannlain and Singleton) deal with U.S. v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc) and what acts render a defendant guilty of conspiracy charges even if there was no evidence the defendant actually smuggled an alien across the border. The 9th found that the defendants were guilty of aiding and abetting a conspiracy to bring aliens to the U.S. for financial gain because of her acts within the U.S. to further the scheme. However, the conviction for "bring to" counts under 1324 must be reversed because there was no presented evidence that the defendant transported the aliens after they were already in the U.S. Lopez rejected the "final destination" theory of conviction for a "place of arrival" theory. Here, the focus was on what happened after the aliens had been dropped off, hence the "bringing to" charges must be vacated.

U.S. v. Craighead, No. 07-10135 (8-21-08). When does in-home questioning by police become custodial for Miranda purposes. Surprisingly, there is little 9th Circuit precedent on this. Thus, this panel from the 9th (Bybee joined by Thomas and Block) do some Miranda housekeeping. Defendant was Air Force personnel stationed on an Air Force base when the FBI investigation (Limewire) led them to suspect he was possessing and trafficking child porn. A search warrant was issued and various law enforcement descended on his home. The police included FBI, Air Force detectives, Pima County detectives and defendant's ranking officer. The police were armed, in flak jackets, and with firearms unholstered. There were 8 in total. Two took defendant to a storage closet in his home for some privacy, stood before the door, said he was free to leave and then questioned him. The district court found this was not custodial. The 9th however, held that Miranda warnings should have been given and suppressed the statements. They did find that the search itself was lawful. In suppressing the statement, the 9th stressed the value the Constitution places on a home (litany of "house" rights in the Constitution) and the fact that Defendant really had no where to go, with his house crawling with law enforcement, in a confined space. The test is always fact intensive, but a court should consider the following factors: (1) the number of law enforcement personnel and whether they were armed; (2) whether the suspect was at any point restrained , either by physical force or by threats; (3) whether the suspect was isolated by others; and (4) whether the suspect was told he was free to leave. The opinion's note 3 lists other factors that other circuits considered, such as "strong-armed" or domineering presence; subterfuge and so forth. Here, the 9th also focused on that Defendant's sergeant was brought along for "moral support" for Defendant but was not permitted to be with him; the concern that Defendant felt with all the different agents swarming around, and his feeling that any agency could arrest him; the lack of access to a door in the small storage room, and the blocking of his exit.

This is a "go to" opinion for in-house questionings that are supposedly non-custodial. As the 9th pointed out, the cops could have read him his rights and be safe.

McMurtrey v. Ryan, No. 03-99002 (8-21-08). The 9th (Pregerson joined by W. Fletcher and Bybee) upholds the granting of relief to petitioner. A competency issue was raised in his ability to stand trial after shooting and killing several people. The state court denied the competency hearing, despite evidence of his memory problems, erratic behavior, and variety and quantity of medications. The failure to hold a hearing violated due process, and a competency hearing held thirteen years later was insufficient to cure the violation.

Case o' The Week: Bybee Boosts Immunity, Straub

Judge Bybee (left) gives a big boost to defense immunity in an important decision that elaborates on the Williams test -- permitting the effects of the government's immunity decisions to establish a constitutional violation. See United States v. Straub, 2008 WL 3547541, (Aug. 15, 2008), decision available here.

Players: Decision by Judge Bybee, joined by Judges D.W. Nelson and Kleinfeld.

Facts: Straub, a member of Oregon’s “White Neck Crew,” allegedly dealt drugs and shot at other dealers as he stole from them. Id. at *1. An immunized government snitch pegged Straub as the shooter in one charged robbery. Id. The defense proffered an impeachment witness who would recount a bar confession wherein the snitch admitted to being the shooter. Id. at *2. This defense witness, however, wanted immunity – and the court refused to give it. Id. at *2-*3.

After conviction at trial, the Ninth remanded in a mem dispo for an evidentiary hearing on the need for court-ordered immunity. Id. at *3.

This hearing revealed that the government had offered “use immunity, informal immunity, sentence reductions, and even cash . . . to the prosecution’s other witnesses for their testimony against Straub” Id. at *5. Eleven of twelve government witnesses had gotten some sort of break. Id. The district court nonetheless stood by its initial denial of immunity, finding no evidence of prosecutorial misconduct. Id. at *7. Straub appealed again.

Issue(s): “Straub claims that the . . . court’s refusal to compel the prosecution to grant use immunity to [his] defense witness . . . violated his due process rights under the Fifth Amendment . . . .

We must address the question left open by Williams, whether a defendant requesting compelled use immunity on the ground that his witness has relevant testimony that directly contradicts that of an immunized prosecution witness must prove that the prosecution’s purpose in denying use immunity to the defense witness was to distort the fact-finding process, or merely that the prosecution’s selective denial of use immunity had the effect of distorting the fact-finding process.” Id. at *1.

Held: “Even where the government has not denied a defense witness immunity for the very purpose of distorting the fact-finding process, the government may have stacked the deck against the defendant in a way that has severely distorted the fact-finding process at trial . . . . Id. at *12.

"[W]here the government has liberally used its discretion to grant immunity to numerous witnesses, and the defendant’s witness could offer relevant testimony that would directly contradict that of an immunized government witness, the trial may become so fundamentally unfair that the defendant’s due process rights are implicated.” Id.

“We now hold that for a defendant to compel use immunity the defendant must show that: (1) the defense witness’s testimony was relevant; and (2) either (a) the prosecution intentionally caused the defense witness to invoke the Fifth Amendment right against self-incrimination with the purpose of distorting the fact-finding process; or (b) the prosecution granted immunity to a government witness in order to obtain that witness’s testimony, but denied immunity to a defense witness whose testimony would have directly contradicted that of the government witness, with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial.” Id. at *14.

"We reverse the district court's denial of Straub's request to compel use immunity." Id. at *18.

Of Note: Straub is a leading case on defense immunity with a valuable new rule for the most-likely trial scenarios.

In Williams v. Woodford, the Ninth held that a refusal to grant immunity rises to a constitutional violation when 1) the defense witness’s testimony is relevant, and 2) the prosecution’s refusal to grant immunity deliberately distorted the fact-finding process. 384 F.3d 567, 600 (9th Cir. 2004). Good luck, of course, getting a prosecutor to admit to “deliberate distortion.”

Straub’s new rule is that the defense can prove this second prong by showing that the effects of immunity for government witnesses – with no immunity for defense witnesses – “stacked the deck against the defendant.” Id. at *12. This is a much more manageable defense burden: proof of prosecutorial intent via proof of effects.

How to Use: Ask! The government here argued that the defense never formally requested use immunity. Id. at *16 n.9. Luckily, Judge Bybee rejects that complaint as too formalistic – but why run the risk? A brief letter or a formal request on the record for a government grant of immunity helps to block this government dodge.

For Further Reading: It helps to know the DOJ’s immunity rules when going down this road. They can be found here.




Image of Judge Jay Bybee from http://www.ibabuzz.com/politics/2008/02/13/circuit-judge-accused-of-pro-torture-bias/

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



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U.S. v. Straub, No. 07-30182 (8-15-08).


We now hold that for a defendant to compel use immunity the defendant must show that:

(1) the defense witness's testimony was relevant; and (2) either (a) the prosecution intentionally caused the defense witness to invoke the Fifth Amendment right against self-incrimination with the purpose of distorting the fact-finding process; or (b) the prosecution granted immunity to a government witness in order to obtain that witness's testimony but denied immunity to a defense witness, with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial.

P. 10708. This is an important decision regarding compelling the government to grant immunity to a defense witness. The facts here involved a defendant facing far-reaching conspiracy and drug charges, as well as a robbery and firearm count. The government granted immunity to 11 witnesses, including one "associate" of the defendant, Adams, who testified that he saw the defendant rob and fire a firearm. The defense had one witness, who would testify that the government witness, Adams, had told him, "I just shot a man." The court declined to order the government to grant immunity (with such logic as: Adams might have meant someone else). The 9th had remanded the case back previously for a hearing, and now decides that immunity can be compelled where the evidence is relevant, and the witness would directly refute a government witness who has been given immunity. The 9th now (Bybee joined by D. Nelson and Kleinfeld) crafted the test is above. Here, the defense witness would have invoked because he was somewhat of an "associate" too in defendant's enterprise. The test is two-pronged: the first is when the government intentionally causes invocation of the Fifth Amendment trying to hide or distort the fact-finding process; or second, in a "fairness" analysis, the prosecution cannot play unfairly so as to distort truth. Sauce for the goose, etc. The second test was implicated here, and the case remanded on the counts affected.

The opinion reviews the precedents of compelled immunity, and sets forth the jurisprudence. It is a good overview.

Questions left open is the mixed use of a witness (what if the witness has other evidence or testimony? Separate the issues?). There is also the question of what constitutes distortion, and the extent of the government's not playing fair. The opinion though takes an important step in recognizing that the government cannot tip the scales with its immunity waiver.

U.S. v. Liu, No. 06-10758 (8-13-08). Defendant ran a brothel in Saipan, and was charged and convicted of various sex trafficking offenses. In appealing the convictions, defendant argues that the court has no jurisdiction over the Northern Mariana Islands. Defendant argues that the covenant between the U.S. and the Northern Mariana specifically lists the amendments applicable, and has language as to giving force to all other laws applicable to the states. Defendant argues that the commerce clause provision is not specifically stated, and so does not apply to the islands. The 9th (Hug joined by Rymer and Rawlison) finds this of interest, but rejects the contention because the commerce clause applies to Congress, and vests it with authority, which can be applied here, because the statutes would also be applicable to the several states.

U.S. v. Peterson, No. 07-50120 (8-13-08). We will be seeing a lot of these types of appeals. The defendants subsidized down payments for homebuyers, but submitted to HUD forms that indicated the homebuyers had received gifts from family or friends to help with the down payment. Things went bad, and the defendants were convicted of false statements. The 9th (Trott joined by Wardlaw and Fisher) affirm the convicts, although chastising the district court, under plain error, for giving an instruction on materiality that did not track the language in U.S. v. Gaudin, 515 US 506 (1995). The 9th stressed that the "capable of influencing" language of Gaudin should be used instead of "could have influenced." The 9th also upheld the restitution order for 43 HUD properties that were affected, finding that the loss was within the proximate cause (the Palsgraf subdivision?).

Tilcock v. Budge, No. 07-16184 (8-15-08). The petitioner was sentenced as a habitual offender under Nevada state law. The 9th (Graber joined by Wallace and Ezra) find no Apprendi error in the state court considering priors as a qualifier for habitual offender status. A qualifying prior may expose the petitioner to a habitual offender enhancement but does not mandate it. The state court may still decide not to. However, the 9th did grant a remand for an IAC hearing. State counsel may have been ineffective in letting in the non-qualifying convictions, thereby tilting consideration.

Congrats to AFPDs David Anthony and Anne Traun, FPD Nevada (Las Vegas), for the remand.

U.S. v. Ganoe, No. 07-50195 (8-15-05). In a child porn trial, the 9th (Silverman joined by Rawlison and M. Smith) found no abuse of discretion in the trial court allowing the jury to examine a select and limited number of images that were part of the offense. The viewing was necessary, even though the defendant offered to stipulate that the images were child porn, because the defendant did not stipulate that the file titles were also a tip-off to child porn (i.e. "Baby J compilation."). The 9th also rejected the search issue on the peer-to-peer software. The defendant downloaded files into a folder that was accessible to all, and lacked privacy.

U.S. v. Goddard, No. 07-50402 (8-11-08). Defendants on SR after a child porn case need to be monitored; but what extent do you monitor the computer monitors? The 9th takes this up, where the conditions absolutely forbade any software change, or upgrade without express approval. The 9th (Rymer joined by Hall and Kleinfeld) acknowledge that the pervasiveness of computer upgrades and packages that stream in at work would make this condition untenable and effectively bar employment. The 9th therefore allowed personal computer use if approved by the probation officer, and would not require prior approval for automatic or routine upgrades, deletions, updates, installations , repairs or modifications.

Congratulations to AFPD Elizabeth Newman, Central District of California (Los Angeles) for the modifying win.

U.S. v. Ramirez, No. 07-10263 (8-11-08). This is appeal from an assault on an Indian reservation. Defendant argued that the instructions and trial were unfair because the court did not require special verdicts as to self defense or to require a unanimous rejection of self defense before guilt was found. The 9th (N. Smith joined by Kleinfeld and Mills) held that the court did not abuse its discretion in following the model circuit rules. Moreover, that the government did prove that the victims were Indians (via testimony) for jurisdiction under 1152. Lastly, there were evidentiary issues under a plain error review, which did not make the trial unfair (i.e. the prosecutor's case made the defendant have to call other witnesses liars).

U.S. v. Almazan-Becerra, No. 07-10420 (8-12-08). In state court, the defendant stipulated to the police reports as providing a factual basis for a plea to selling or transporting marijuana. A few years later, and after a subsequent deportation, defendant faced a 1326 charge. He was sentenced as an aggravated felon with a drug trafficking offense the first time, but the 9th reversed because the California statute was not a categorical drug trafficking statute. Back before the district court again, the court gave him an aggravated sentence for trafficking because, under a modified approach, the police reports had recorded sells. Defendant appealed again, but this time the 9th (N. Smith joined by Schroeder and Fairbank) affirmed. The defendant in state court had stipulated to using the police reports to provide a factual basis, and this came back to bite him in an affirmed 51 month sentence. The "law of the case" did not prevent the district court from examining the state conviction under a modified categorical approach.

U.S. v. Tankersley, No. 07-30334 (8-12-08). Defendant and other codefendants of the Earth Liberation Front and the Animal Liberation Front engaged in arson against government and private property to prove a political point. They were caught and eventually plead under pleas, most to conspiracy or aiding and abetting. The defendant here only plead to arson involving private property; she was not given the +12 level adjustment increase for terrorism because the property was private. The district court felt this was a disparate result, turning on private/public, and so he departed upward 12 levels to avoid disparity. The defendant appealed, arguing that the sentence (41 mos) was unreasonable. Her focus was on the distinction drawn by Congress supposedly between terrorist activities and routine crimes, as seen in the PROTECT ACT. The 9th (Tallman joined by Clifton and N. Smith) held that the basis for the departure to achieve sentencing parity with those engaged in similar conduct was not per se unreasonable. The court under the advisory guidelines could consider this basis, and that the PROTECT ACT did not bar such a consideration from the Commission. (This decision falls into the "sauce for the goose etc." category, because it can be used to argue for the same possibly lower sentence as a codefendant).

Case o' The Week: The Ten Most Terrifying Words in the English Language: "I'm From the Government and I'm Here to Help You," Garcia-Aguilar

The government developed a sudden concern for defendants' rights to proper plea advisements in Garcia-Aguilar -- and Chief Judge Kozinski ain't buying it. Garcia-Aguilar v. United States District Court for the Southern District of California, 2008 WL 3009680 (9th Cir. Aug. 6, 2008), decision available here. This laudable San Diego Defender mandamus victory is a defense win in a quirky little corner of Section 1326 law, with some good ramifications for other defense strategies.

The case does, however, embrace a rule that promotes sloppy advisements during guilty pleas -- not a great development for Rule 11 practice.

Players: Nice win for San Diego Defenders Zandra Lopez, Michelle Betancourt, and Shaffy Moeel. Former San Diego AFPD David Zugman on the team with the briefing and on oral argument.

Facts: San Diego had “defective” § 1326 indictments, that failed to allege that an alien had been removed from the country after having been convicted of a felony. Id. at *1. The Ninth has held that this flaw is Apprendi error that (theoretically) limits a defendant’s exposure to two years. Id. at *2 (citing United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir. 2006)).

Garcia-Aguilar and other § 1326 defendants entered guilty pleas before the magistrates to these indictments. After the guilty pleas the government “belatedly” brought superseding indictments that alleged the necessary missing fact. Id. To fix its mistake, the government argued that the original guilty plea colloquies were defective, because the magistrates had advised the defendants they were looking at twenty years – when in reality, they were only looking at two years because of the “defective” indictment. Id.

On the government’s motion, the district courts refused to accept these unconditional guilty pleas. Id.

Issue(s): “We consider the district court’s refusal to accept defendants’ unconditional guilty pleas.” Id. at *1.

Held: “The district court shall accept defendant’s unconditional pleas to the original indictments.” Id. at *4.

Of Note: As Arizona Defender Jon Sands has noted, Chief Judge Kozinski gives us the following wonderful quote: “These consolidated cases show again why the ten most terrifying words in the English language may be, ‘I’m from the government and I’m here to help you.” Id. at *1. Hard to fault a decision that is both a defense win and that mocks the government.

The troubling holding, however, is that it doesn’t matter how badly a court screws up an advisement at a plea, as long as it gets the highest possible maximum sentence right. Id. at *2. (Here, the magistrates were eighteen years off). Why not just guess “life,” and avoid any potential Rule 11 error? When a plea advisement is just a wild stab at the worst-case-scenario, then it stops becoming an advisement altogether. This Garcia-Aguilar "advisement rule" isn’t new, and maybe its full scope will be limited to these odd facts, but the case doesn’t exactly encourage careful practice in the trial courts.

How to Use: Does this mandamus decision have application beyond this quirky corner of Section 1326 litigation? It does, in our post-Apprendi world. Occasionally the feds screw up an indictment and fail to allege a fact that increases a statutory maximum sentence. What happens if a defendant jumps on that defect and pleads guilty out of the gate? Game over – under Garcia-Aguilar, the government can’t supersede: “the government has no power to force the defendant to go through the ordeal again to serve its own purpose.” Id. at *3. If this results in a dramatically lower sentence for the defendant, then “so be it.” Id. at *4. Moreover, if the district court balks, mandamus lies to force the court to take the plea.

Of course, there’s a caveat or two. In Garcia-Aguilar, there were no other crimes with which to charge the defendant: illegal reentry was the only arrow in the government’s quiver. That’s usually not true, where many other potential charges (not Blockburger-barred) can be brought in a superceding indictment. (Think “receipt” of child porn versus straight “possession,” or a spare § 924(c) charge).

Moreover, Garcia-Aguilar and his other consolidated defendants aren’t out of the woods, yet. In United States v. Salazar-Lopez, for example, there was a similar problem with the indictment – but the Ninth “cured” it through the magic of harmless error analysis. 506 F.3d 748, 752 (9th Cir. 2007). Undoubtably those clever San Diegians have figured out how to skirt this problem, but the Salazar-Lopez harmless error “cure” illustrates that the “quick plea” strategy still carries with it some dangers.

For Further Reading: Can a court stall a defendant’s quick guilty plea, to let the government allege priors and to fix mistakes in the indictment? Yep. See 21 USC § 851(a)(1) (allowing delay for good cause); see also United States v. Duffy, 179 F.3d 1304, 1305 (11th Cir. 1999) (notice of priors filed by government during plea hearing timely).


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

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Garcia-Aguilar v. U.S. District Court for So. Calif , et al., No. 07-70293 (8-6-08). The 9th held that the Court must accept unconditional guilty pleas. This is a mandamus with consolidated cases. The defendants were charged with 1326, but the government had not specifically charged that they had been removed after conviction of a felony under 1326(b)(2). They plead straight up to 1326 before a magistrate judge. Before sentencing, the 9th ruled in Covian-Sandoval that Apprendi applies. The government argued that the district court should not accept the plea because the colloquy incorrectly stated that the max was 20 years and not 2 years. The 9th (Kozinski joined by McKeown and Jones) said this was disingenuous; the government failed to allege what it should have, and the defendants had the right to have their pleas accepted. The 9th does state that these cases "show again why the ten most terrifying words in the English language may be, 'I'm from the government and I'm here to help you.'" (9912). This quote might get cited a lot.

Congratulations to AFPDs Zandra Lopez, Michelle Betancourt, and Shaffy Moeel of the Federal Defenders of San Diego.

U.S. v. Flores-Villar, No. 07-50445 (8-6-08). Fathers get no respect, at least from Congress in derivative citizenship. Here, the defendant was charged with 1326, but argued that he was a U.S. citizen because of his father. His father and noncitizen mother were not married, and his father was 16-years old. The father acknowledged the defendant and the defendant moved to San Diego when he was 2 months old and was raised by his grandmother and father. Unfortunately, the law requires that the father have resided in the U.S. for 5 years after his 14th birthday to confer citizenship. However, a mother only had to have one year of residency. The defendant brought an equal protection challenge based on gender and age. The 9th (Rymer joined by Hall and Kleinfeld) affirmed the conviction and denied the challenge. Congress, reasoned the 9th, could draw these bright line distinctions which are easy to administer. The Supremes had upheld such line-drawing in Nguyen v. INS regarding legitimation procedures; and the logic also supports the residency requirements here.

Case o' The Week: Ruff Case for the Government, Big Sentencing Win for the Defense

In an important decision that has real-world impact for our clients, Judge Fisher (left) emphasizes the discretion of a district court to fashion a sentence that avoids full custodial confinement. See United States v. Ruff, 2008 WL 2940535(9th Cir. Aug. 1, 2008), decision available here. The opinion sparks a vigorous dissent from Judge Gould, however, who articulates a worrisome skepticism about white collar sentences. See id.

Players: Interesting split: authored by Judge Fisher, joined Judge by Ikuta (W. Bush appointee), dissent by Judge Gould (Clinton appointee).

Facts: Ruff stole stuff. A hospital employee, he took over $640k worth of supplies and sold it on eBay. Id. at *1. When caught he confessed, and ultimately pled guilty to health care fraud, theft, and money laundering. Id. at *1. The PSR’s range was 30-37 months. Id.

At sentencing the judge worked through the § 3553(a) factors, noting Ruff’s employment history, his cooperation and remorse, his support from his siblings, the absence of risk to the public and the appropriateness of restitution, and Ruff’s mental health problems – including pathological compulsive gambling. Id. at *1. The court sentenced Ruff to a year and a day at a particular residential confinement facility, so Ruff could get work release, visit his son, and get counseling. Id. at *1.

When the judge discovered that this jail could only house Ruff if it was a condition of supervised release, he flipped the sentence to one day of BOP custody and three years supervised release – with a condition of a year and a day in the same facility. Id. at *2. The government appealed.

Issue(s): “The government insists that this modification overstepped the bounds of the district court’s sentencing authority.” Id. at *1.

Held: “We disagree. Applying the requisite deferential standard of review, we conclude that the district court did not abuse its discretion and that the sentence it imposed is reasonable.” Id. at *1.

Of Note: Judge Gould isn’t happy. Id. at *4 (Gould, J., dissenting) (“Ruff’s sentence with only one day of imprisonment is not reasonable and we should say so in no uncertain terms.”) The gist of his dissent is that Ruff is a white collar criminal, the whole sentence had been manipulated so Ruff could go to a residential confinement center, and that courts are too soft on white collar crime. Id. at *5-*6. “It seems inescapable that we as a court need to spend more time thinking about the appropriate punishment for white collar crime.” Id. at *6.

In response, Judge Fisher counters with a great collection of low sentences given in a range of crimes. See id. at *3 & n.1. He concedes that “more time thinking about the appropriate punishment for white collar crime” may be appropriate, but counters that Ruff’s case wasn’t treated any differently than other crimes. Id.

Judge Gould’s dissent is worrisome. There are plenty of “liberal” judges who are tired of meting out decades of mandatory-minimum sentences to minority drug defendants, and probation to white, white collar criminals. Of course, unfair and unjust sentences for drug crimes do not require the same unfair and unjust sentences for all crimes. With mortgage fraud cases exploding, however, Gould’s trend bodes ill for our future white collar clients.

How to Use: The important Ruff rule? With the proper § 3553(a) showing, a district court can craft a sentence to control the conditions of confinement and to provide alternatives to incarceration. One of these questions that we had as Apprendi law developed was whether this new sentencing power would let a judge get into the nitty-gritty of custodial conditions.

Turns out, after Gall and Ruff, it does – and with the right § 3553(a) showing, these sentences are safe on appeal. Use Ruff to push for split sentences, home confinement, and intermittent confinement. As in Ruff, use “conditions of supervised release” as the stick to make the mulish BOP actually follow the district court’s orders.

For Further Reading: By happy coincidence, our fellow blogger Steve Sady has just finished his magnum opus “The Sentencing Commission, The Bureau of Prisons, And The Need For Full Implementation Of Existing Ameliorative Statutes To Address Unwarranted And Unauthorized Over-Incarceration.” See blog posting here.

It is excellent.

Sady’s article and Ruff are the keys out of hard custodial time for many of our clients: use both in your next sentencing memo.


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

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U.S. v. Ruff, No. 07-30213 (8-1-08). The court sentenced Defendant to a year and a day with recommendations that he serve the sentence in a specific facility to allow work release. The facility, however, could only accept someone if he was on SR. Less than a week later, the court held another hearing and amended its judgment to be one day imprisonment and three years SR, with a condition that he stay at the facility for a year and a day. Defendant had committed fraud at the Sacred Heart Hospital to the tune of $644,000, but had mitigating circumstances including remorse, strong work history, family support, lack of future dangerousness or need to protect the public, restitution, relationship with his son, and mental issues, including compulsive gambling. The government appealed, arguing that the court overstepped its authority with its modification. The government argued that the court did not go through all the 3553 factors at the second hearing, and that the sentence itself was unreasonable. The 9th (Fisher joined by Ikuta) disagreed and affirmed the sentence. The 9th held that the court obviously considered the 3553 factors in its first hearing, and its second hearing was a continuation. As for reasonableness, the 9th upheld the sentence under the district court's discretion articulated in Gall and by the 9th in Whitehead. The 9th recognizes the punishment was the same, although the form was different, so as to advance the 3553 factors. Dissenting, Gould rails against the lack of punishment, and the fact that instead of "the big house" with work release, defendant is now on SR, and basically was given a slap on the wrist. Gould argues that Gall is not an abdication of reasonableness review.

Mendez v. Knowles, No. 06-15153 (8-1-08). The 9th (Gould joined by Clifton and R. Smith), affirmed the dismissal of a petition. The 9th does allow the appeal to proceed, affirming the court's finding of excusable neglect in the filling of the appeal. As for the merits of the petition, the petitioner was charged with child molestation. The state also proved two prior instances of child molestation convictions, and argued in closing that the proof of the past convictions allowed the jury to find the petitioner guilty here. The jury instructions were flawed, however, in using the standard of preponderance of proof to prove the prior. The 9th has found, under Gibson, that the past convictions must be beyond a reasonable doubt so as not to violate Winship. Although error occurred here, the proof was beyond a reasonable doubt and there was absolute certainty that the state met that standard. The 9th also refused to expand the COA to include a challenge to the petitioner's mental competency at the time of the offense and request for an evidentiary hearing. The evidence was that he may have been intellectually limited, but still was competent, as the state trial court found.