Case o' The Week: Defense 45 / Gov't 8 (but Lazarenko still gets nine . . .)

Years of litigation, millions of dollars of investigation, government "depositions" under sketchy circumstances in Russia, and the feds end up losing 45 out of 53 counts against Pavel Ivanovich Lazarenko, former Prime Minister of Ukraine? United States v. Lazarenko, __ F.3d __, 2008 WL 4368219 (9th Cir. Sept. 26, 2008), decision available here.

A remarkable effort by some of the best of California's defense bar.

Unfortunately for Mr. Lazarenko (left, leaving the SF federal building) even with an additional six counts knocked by the Ninth, the remaining eight counts of conviction make his nine year sentence a step closer.

Players: SF Giants Dennis Riordan, Doron Weinberg, and Donald Horgan for Mr. Lazarenko. Opinion by Judge McKeown, joined by Judges Tashima and Gould.

Facts: Lazaranko was the former prime minister of Ukraine. Id. at *1. His “involvement” in businesses was actually extortion, alleged the US government. Id. Because the money hit US accounts, Lazaranko was charged in SF with a 53-count indictment alleging conspiracy, money laundering, wire fraud, and interstate transportation of stolen property. Id. He was convicted after trial of fourteen counts, and appealed. Id.

Issue(s): (One among many): “Lazarenko also appeals the denial of his Rule 33 motion for a new trial. He argues that the government indicted him on [one specific set of] charges, knowing that the charges could not be proven, and then, after the directed verdict of acquittal, used the evidence from [this alleged] scheme against him in its closing argument, in violation of the doctrine of retroactive misjoinder. He asserts that he was denied the opportunity to respond in his own closing argument to the government's misleading statements.” Id. at 14 (footnote omitted).

Held: “[W]e reject the government’s contention that we have limited the doctrine of retroactive misjoinder only to cases where there is more than one defendant.” Id. at *15. “[T]he doctrine of prejudicial spillover or retroactive misjoinder may apply to a case where there is only one defendant.” Id.

“Invoking the three-factor test that the Second Circuit developed in Vebeliunas, the district court concluded that Lazarenko was not prejudiced by the now-dismissed charges. Under the Vebeliunas test, the court considers:

(1) whether the evidence was so inflammatory that it would tend to cause the jury to convict on the remaining counts;

(2) the degree of overlap and similarity between the dismissed and remaining counts; and

(3) a general assessment of the strength of the government's case on the remaining counts . . .

These factors reasonably address concerns about prejudicial spillover. We adopt these factors and add to them the factors we identified in Cuozzo - whether the trial court diligently instructed the jury and whether there is evidence, such as the jury's rendering of selective verdicts, to indicate that the jury compartmentalized the evidence.” Id. at *16.

“The district court did not abuse its discretion in denying Lazarenko a new trial based on prejudicial misjoinder.” Id.

Of Note: What is “retroactive misjoinder?” “ ‘Retroactive misjoinder’ arises where joinder of multiple counts was proper initially, but later developments- such as a district court's dismissal of some counts for lack of evidence or an appellate court's reversal of less than all convictions-render the initial joinder improper. In this Circuit, ‘[t]o invoke retroactive misjoinder,’ a defendant ‘must show compelling prejudice.’ Prejudicial spillover from evidence used to obtain a conviction subsequently reversed on appeal may constitute compelling prejudice.” Id. at *14.

How to Use: Lazarenko provides new rules for retroactive misjoinder:

1. the principle can apply to single defendants, and

2. there is a new multi-factor test for prejudicial spillover. It will be the lead decision on the concept.

The opinion has many other important holdings as well, however. This decision discusses “constructive amendments” – and calls out the government’s “shift in theory.” Id. at *6. It finds too great a temporal break to uphold wire fraud allegations, when funds were wired years after the fraud. Id. at *8. And, unfortunately, it refuses to demand a particularity requirement for the specific foreign statutes violated, when those foreign crimes were the bases of money laundering, wire fraud, and transportation of stolen money counts. Id. at *6.

An important read for white-collar defense.

For Further Reading: Павло Івáнович Лазарéнко, Pavlo Ivanovych Lazarenko, has lead a colorful life that has sparked a great deal of litigation. See wikipedia entry here. In the present case, he was sentenced to nine years, with a $10 million fine. See New York Times article here.

Long before this appeal of the convictions hit the Ninth, a different panel (including Justice O’Connor) issued a pretty controversial ruling on the criminal forfeiture aspects of the case. See blog on United States, Liquidators v. Lazarenko here.


Photo of Mr. Lazarenko leaving the San Francisco federal building from http://blog.kievukraine.info/4129.jpg


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


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Case o' The Week: A "Real" Defense Victory, Waknine

A slow week in the Ninth means we can stretch back a bit to the interesting decision of United States v. Waknine, __ F.3d __, 2008 WL 4149666 (9th Cir. Sept. 10, 2008), opinion available here. In this appeal from the Honorable Manuel Real (left), the Ninth Circuit rejects defense complaints that the government did not get a full chance to speak at sentencing. (Yes, that was written correctly).

A good ultimate result, however, on the need for a statement of reasons at sentencing.

Players: Decision by Judge Gould, joined by Judge Wallace, partial concurrence by Judge Ikuta.

Facts: Waknine went to trial on RICO charges, for laundering money extorted from the Tel Aviv Trade bank and brokering loans through extortion. Id. at *1. Five days into trial he pleaded guilty. Id.

His plea agreement said “At the time of sentencing, the government agrees to recommend that defendant be sentenced to a 108-month sentence.” Id. The PSR came back with CH II, OL 31: 121-151 months. Id. The government filed a sentencing memo recommending 108 months. Id. at *2.

At sentencing, defense counsel spoke, the defendant allocuted, but the government wasn’t given a chance to speak – and the court imposed a 121 month sentence. Id. at *2. The government then reminded the court that it wanted 108, and asked how the court got to 121. Id. at *2. (“Mid-range of CH I, OL 31,” answered the district court).

Issue(s): Waknine “argues the government violated the plea agreement by not orally recommending at the sentencing hearing a 108-month prison term pursuant to the plea agreement.” Id.

Held: [Rejects the above challenge on plain error review, but] “We conclude that there was plain error in the sentencing, and we therefore vacate the sentence, and remand with instructions for the district court properly to calculate the United States Sentencing Guidelines range, to discuss the 18 USC § 3553(a) factors in rendering sentence, and to comply with Rule 32 of the Federal Rules of Criminal Procedure by permitting each party to be heard before announcing the sentence.” Id.

“[W]e reject Waknine’s request for a new sentencing judge.” Id.

Of Note: This was an appeal from the Honorable District Court Judge Manuel L. Real. Waknine alleged, “‘[t]here is a generalized pattern of cowering by attorneys who appear’ before Judge Real and a general pattern of parties afraid to advocate in Judge Real’s courtroom.” Id. at 10. The Ninth demurred: “We are confident that in future proceedings counsel will not hesitate to advocate before the district court.” Id. at *11.

How to Use: Waknine didn’t object to the government’s failure to orally recommend 108 at the sentencing hearing, so the Ninth dodges this issue on plain error review. Id. at *3-*4. It is interesting – and a little disturbing – that the Court refused to construe the plea agreement in favor of the defense (the traditional rule) because it was on plain error review. Id. at *4. That approach seems like a new rule, and an unwelcome one at that.

The useful part of this opinion is the Court’s embrace of Rule 32 – the right of both parties to be heard at sentencing – and its holding (on plain error review!) that the Court did not sufficiently explain its Section 3553(a) rationale for the sentence. Id. at *5-*6. That makes Waknine one of very few post-Booker decisions to remand for an insufficient Section 3553(a) “statement of reasons,” and a valuable addition to the defense arsenal. (Although, bear in mind the above “Of Note” observations when relying on this decision – a sub silencio fact of the decision, perhaps?)

For Further Reading: Judge Real is far too big a topic for this little memo. See Wikipedia entry here. Still, its worth mentioning some sweet with the sour.

One of the first – and best – post-Booker decisions in the Ninth Circuit upheld a dramatic departure by Judge Real. See blog here, discussing United States v. Menyweather, 447 F.3d 625 (9th Cir. 2006).

Judge Real’s sentence was equally admirable in United States v. Green, 105 F.3d 1321 (9th Cir. 1997) (reversing Judge Real’s departure from four years to probation for manufacture and cultivation of marijuana with intent to distribute).

And, whatever one’s views of this district court judge, it must be conceded that he’s unafraid of the Ninth: he stuck by his probationary sentence in Menyweather despite two appeals to the Ninth, and two remands.

Article III independence, in spades . . . .

Steven Kalar, Senior Litigator N.D. Cal. Federal Public Defender. Website at www.ndcalfpd.org


Image of Judge Real from http://www.robeprobe.com/articles.php?subaction=showcomments&id=1201653776&archive=&start_from=&ucat=&


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Hebner v. McGrath, No. 06-16533 (9-16-08). What does it take for a new argument to relate back to a claim previously filed in habeas? Under the Supremes's decision in Mayle v. Felix, 545 US 644 (2005), the claim has to arise from the operative facts so as to avoid a statute of limitations bar. It isn't enough that it relates to the same trial, conviction, or sentence. The original claims by petitioner concerned propensity evidence, and ex post facto and constitutional claims related to uncharged conduct. Three years after the original petition was filed, and long after the AEDPA statute of limitations had run, petitioner tried to amend the petition to include a claim that the jury instruction violated due process by supposedly allowing the jury to convict him of the present sexual offense because of a prior one. The 9th (Clifton) upheld the denial as not relating back because the original claims went to evidence, while this new one went to jury instructions, and differed in time and character. It isn't enough that both raised constitutional claims, or even referenced arguably the same evidence.

U.S. v. Gianelli, No. 07-10233 (9-17-08). The 9th allows the seeking of restitution for a victim under the Federal Debt Collection Procedures Act of 1990. This was for restitution arising from a 1987 action. Because the defendant failed to appeal the restitution order then, he has waived the right to challenge the amount.

U.S. v. Drake, No. 06-10073 (9-15-08). The 9th (O'Scannlain) considered whether indictment on local Guam counts but convicted on different charges in federal court violated Speedy Trial rights? The 9th answered "no." The charges were a local Guam robbery and gun counts; the indictment was dismissed and then reindicted, and then transferred to federal court, where he was convicted on Hobbs Act. The 9th found there were no constitutional violation under Barker because of lack of prejudice, and the actions of the defendant. Under the Speedy Trial Act, there was also no violation, as the "other charges" exception fit this case, and the motions of the defendant. The 9th also found that there was reasonable suspicion to stop defendnat's car because of its high rate of speed and proximity to the robbery in space and time. The show up was also not prejudicial.

Moses v. Payne, No. 07-35468 (9-15-08). The 9th upheld a state murder conviction. The petitioner argued that the state court erred in precluding a defense expert who would testify about the victim's (spouse) mood swings and depression that could have resulted in her death. The 9th found that AEDPA's deference was not so unreasionable. The 9th also upheld the evidentiary introduction of expert's conclusions of homicide, and the introduction of prior diary writings by the victim. Gould dissented.

Case o' The Week: New Ninth Rule Tolerates Meddling -- er, "Involved" -- Trial Judges, U.S. v. Lopez-Martinez

A pretty good panel gives us a pretty disappointing decision, in United States v. Lopez-Martinez, 2008 WL 4149658 (9th Cir. Sept. 10, 2008), decision available here. In Lopez-Martinez, the Ninth decides -- for the first time -- that a trial court who actively suggests questions to attorneys (read, "AUSAs") doesn't abuse the neutral role of the presiding judge.

Players: Decision by Judge McKeown, joined by Judges Tashima and Gould.

Facts: Lopez-Martinez smuggled aliens across the desert into the States. Id. at *1. One alien (who became a lead government witness) testified that when his wife fell ill during the trip, Lopez-Martinez promised to call the Border Patrol for medical assistance. Id. The smuggler didn’t call, abandoned the pair in the desert, and the witness’s wife died. Id. Lopez-Martinez was tried for alien smuggling, conspiracy, and illegal entry. Id.

“The trial judge played an active role in the trial.” Id. *2. [Ed. note: a considerable understatement]. After the government finished a key witness (and before the Rule 29 motion) the judge excused the jury. With defense counsel present the judge offered much (unsolicited) advice to the AUSA on how to prove missing facts and establish “factual underpinnings.” Id.

Issue(s): “Lopez-Martinez now appeals his conviction . . . attacking the actions of the judge.” Id. at *1.

Held: “Although we have not had an opportunity, until now, to directly address the question, our sister circuits have held that there is nothing wrong with a judge suggesting a line of questioning to an attorney.” Id. at *2. “We agree with the reasoning of these courts; it would be disingenuous to condemn the trial judge’s inquiry here, given that it is already well established that the judge may question the witness directly.” Id. at *2.

Of Note: This is all OK, soothes the Ninth, because it turns out that this trial judge was being particularly fair to the defense. When the defense objected to the judge’s coaching of the AUSA, the judge responded that “he was concerned that he could not grant a Rule 29 motion in Lopez-Martinez’s favor without giving the prosecution a chance to meet his concerns.” Id. at *3. The judge also emphasized the seriousness of the charges, and kindly explained that “he did not want to see Lopez-Martinez convicted on accusations unsupported by the evidence.” Id. From these reassurances, the Ninth Circuit gleaned a “clear import” that the judge was trying to shore up any Rule 29 motion in favor of the defendant against appeal, and to ensure that if the defendant was convicted, it was on evidence, not speculation. Id.

What fine luck had Lopez-Martinez, to have such a thoughtful judge presiding over his case!

In the recent Garcia-Aguilar decision, Chief Judge Kozinski described the ten most terrifying words in the English language as, “I’m from the government and I’m here to help you.” 535 F.3d 1021 (9th Cir. 2008), see blog here. Substitute “district court” for “government,” and Judge Kozinski’s insight applies with equal force here.

How to Use: At least in theory, there are some limits to the district court’s role as the government's private trainer. “We are mindful, of course, that in some cases - although not here - the trial judge’s inquiries and suggestions may cross the line and affect the judge's role as an impartial participant in the trial process. A trial judge’s participation can overstep the bounds of propriety and deprive the parties of a fair trial when the record discloses actual bias or leaves the reviewing court with an abiding impression that the judge’s remarks and questioning of witnesses projected to the jury an appearance of advocacy or partiality. The judge’s remarks objected to by Lopez-Martinez were made outside the presence of the jury, and evidenced no bias on the part of the judge.” Id. at *3 (internal ellipses, quotations, and citations omitted).

A key fact here is that the coaching on the Rule 29 was made outside of the presence of the jury – such conduct before a jury may have resulted in a different outcome.

For Further Reading: A trial judge who actively develops facts in anticipation of a Rule 29 motion – instead of neutrally evaluating the government’s evidence at the end of its case – has slid into the European inquisitorial system of justice. Nothing wrong with that – if you’re in Europe.

For a good, old-fashioned take on Rule 29 motions and the American adversarial system of justice (including some plain talk on what the government’s burden really means) revisit United States v. James, 987 F.2d 648 (9th Cir. 1993) (reversing verdict when government forgot to introduce a stipulation of FDIC insurance in a bank robbery case).


Image of Judge McKeown from http://blog.wired.com/27bstroke6/2007/08/nsa-hearing-ope.html

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

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U.S. v. Weyharauch, No. 07-30339 (9-8-08). To file an interlocutory appeal from a suppression order, the government has to properly certify that the evidence is material and the appeal is not for delay under 18 USC 3731. The U.S. Attorney has to so certify. Here, the U.S. Attorney's Office in the District of Alaska is having some trouble finding the right paperwork. The 9th is losing patience, and in this, the third order, the 9th (D. Nelson joined by Tashima and Fisher) demand that the government show them the paperwork that makes an AUSA a special acting us attorney in this matter.

Edwards v. Ayers, No. 05-99001 (9-9-08). The 9th (Schroeder joined by Silverman and Bybee). The 9th starts off its opinion denying relief by stating that petitioner's disturbed behavior and mental problems were apparent from early childhood. For years the petitioner was confined to a Maryland mental hospital until he was released because of a change in state law, although his doctors still thought him dangerous. He ended up killing a little girl and injuring another by lying in wait and shooting them. The 9th concludes that the special circumstance of lying in wait was a constitutional limiting aggravator; that the state's failure to turn over the complete file from the mental hospital was not a Brady violation because there was more bad in the file than good; and that there was no IAC in failing to present a diminished capacity defense at the guilt phase; nor in not presenting the long history of mental illness as a mitigator in the penalty phase. Defense counsel had petitioner evaluated by four experts, and could not develop a diminished capacity defense. At penalty phase, the mental issues showed an increase in aggression and bizarre behavior, and counsel made a decision not to inflame the jury. Lastly, any Brady error was harmless. The strategy to present lay witnesses to say that petitioner was depressed about his divorce and that this act was aberrant was not deemed to be ineffective.

U.S. v. Lopez-Martinez, No. 07-10174 (9-10-08). Let's see, the court told the prosecutor that she was not developing her evidence sufficiently to prove the elements of alien smuggling resulting in death. Did the court do this for the benefit of the government? No, the court did this to help the defense bolster its Rule 29 motion and to have it stand up. Yes, that was the reason. However, the prosecutor did develop the facts and so the Rule 29 was denied. Was the court's advice or coaching, albeit out of the presence of the jury, improper? No, concludes the 9th, because the judge is not a mere umpire, calling balls and strikes, but presides over the search for truth, within bounds, and can ask witnesses questions, ensure orderly presentation of evidence, clarify matters, and prevent undue repetition. If the court can ask questions, then the court, as many other circuits have concluded, can coach a bit, but not to an extent that it crosses the line. The line was not crossed here because, of course, the probing was for the defense benefit in its Rule 29 motion and it was outside the presence of the jury. The court also stressed that it was acting so the defendant, if convicted, was convicted under proper evidence and not by insinuation. The 9th (McKeown joined by Tashima and Gould) also considered, under plain review, whether an agent could testify as an expert on patterns and methods of alien smugglers and whether the defendant did indeed act as a guide for the ill-fated lost party. The 9th found no error, as the agent had 14 years experience, and supported his conclusions by explaining his methods and experience. A Daubert hearing was not necessary. The 9th next upheld the denial of the Rule 29 motion in light of the evidence presented that the defendant was in fact the guide. In closing the prosecutor argued that the defendant, when rescued, did not seek their help in rescuing the rest of the stranded party. This comment on silence is reviewed for plain error, and the 9th allows it because the defendant did not invoke, but rather misled the officers by stating that no one was with him. The 9th found no juror misconduct with some extrinsic notes being found in the jury room (no juror stated he or she saw the pages or notes). Lastly, the court did consider the 3553 factors at sentencing.

U.S. v. Waknine, No. 06-50521 (9-10-08). The district court sentenced the defendant on an extensive foreign bank fraud to 121 months. The court pronounced sentence without giving the government a chance to voice its recommendation of 108 months (low end of the Guidelines range). The plea agreement stated the recommendation. The defendant argued that the government should have been given a chance to voice its recommendation and raised several issues. The 9th (Gould joined by Wallace with a partial dissent by Ikuta) first found that the opportunity to "state the position" was ambiguous as to "time of sentencing," and concluded that whether there was error or not, the court had been aware of the recommendation, and therefore the defendant had not met his burden. The 9th also concluded that Fed R Crim P 32 requires the government to state its position at sentencing, and the court's rush to sentencing violated this. However, the review was for plain error, and the 9th found that the sentence would not have been different. The 9th did remand for resentencing because the court failed to state that it considered or weighed the 3553 factors. The 9th also vacated restitution and remanded, ordering the government had to provide the court with a more detailed accounting and evidence of loss given the victim witnesses's credibility issues in their conclusory summary affidavits. This last point caused Ikuta to dissent, arguing that affidavits are a proper means of finding restitution, and that a more onerous burden should not be placed on victims. The majority responds that affidavits are fine, but they have to have a sufficient evidentiary basis for concluding that certain losses occurred.

Case o' The Week: Government Uses Trial Acceptance Guideline to Coerce Appeal Waivers, Medina-Beltran and Third "Acceptance" Level

This innocous little case, where one offense level (a handful of months) was at issue, is (respectfully) a leading contender for the worst Ninth Circuit decision of 2008. See United States v. Medina-Beltran, No. 06-10181, 2008 WL 4093611 (9th Cir. Sept. 5, 2005), decision available here.

An opinion that deserves the fast-track to the en banc court.

Players: Hard-fought appeal by Tucson AFPD Saul Huerta. Per curiam decision by Judges Siler (Senior Sixth Circuit), McKeown, and Callahan (right).

Interestingly, Judge Callahan was also on the Espinoza-Cano panel. Espinoza-Cano is the Ninth Circuit case that first started these problems with the government's abuse of the acceptance of responsibility guideline.

Facts: {Ed. Note - this decision creates a major new Circuit rule, yet is barely two pages long, has scant analysis, and even less factual background. These facts are accordingly drawn from the appellant’s briefs.} Out of the gate, Medina-Beltran offered to plead guilty to illegal reentry. Appellant’s Brief, 2006 WL 2701301, *13. He plead “open” (without a plea agreement) and moved for departures and variances at sentencing. Id. at *5-*6.

The government refused to move a reduction of the third offense level for acceptance under USSG § 3E1.1(b), because Medina-Beltran declined a plea agreement that had an appellate waiver. Id. at *13.

Issue(s): “Medina-Beltran disputes the district court’s refusal to grant him a third-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b) . . . . Medina argues only that the prosecutor acted arbitrarily in refusing to move for the additional reduction.” Medina-Beltran, 2008 WL 4093611 at *1.

Held: “Although Medina-Beltran pled guilty and avoided a trial on the substantive offense, he objected to his sentencing enhancement and rejected the government’s proposed appeal waiver. The government anticipated and defended his appeal of his sentence. Under these circumstances, the government's decision not to move for the additional level reduction was not arbitrary.” Id. at *1.

Of Note: With all respect, this is one of the worst decisions of 2008. Its roots stretch back to the 2003 Feeney Amendment. That amendment was ghosted by DOJ, sponsored by a freshman Representative, and rushed through a Republican Congress with no debate or discussion. It was an amendment that Orin Hatch (and quietly, Justice Breyer) thought was nuts. See article here.

The Feeney Amendment let the prosecutor – instead of the Court – decide on whether the defendant would get the full reduction for acceptance of responsibility. See § 3E1.1(b), entire text available here. We predicted rampant AUSA abuse of their discretion on whether to give the defendant credit for acceptance of responsibility. See Espinoza-Cano blog here, Gomez-Mendez blog here, Baza-Martinez blog here, Cannel blog here.

We were right.

In Medina-Beltran, the Ninth has adopted a shocking new rule: the government can extort appeal waivers by withholding the third offense level for acceptance of responsibility. The guideline itself, however, instructs that this acceptance level is to be given if a plea permits the government “to avoid preparing for trial.” USSG § 3E1.1(b). How, exactly, is an appeal waiver related to trial? The decision flatly ignores the plain text of the guideline.

Medina-Beltran will have a tremendous impact on our practice, because many clients will cave to the government’s extortion of the third acceptance level rather than preserve a sentencing appeal. This problem is exacerbated by USAO’s flat ban on conditional pleas (like in the Northern District of California). Congress and the Commission would never approve a guideline that conditioned acceptance points on appeal waivers. Yet, by slowly (and frankly, disingenuously) pushing the envelope, that is exactly what the government has achieved.

This decision should go en banc.

How to Use: On a “heavy” illegal reentry case, losing this third “point” costs seven months. (CH VI, OL 22 versus 21). If a client wants to preserve a sentencing appeal don’t plead until the Friday before a Monday trial. Remember, the Court gives the first two acceptance levels, and for those two levels the plea doesn’t need to be “timely” -- anytime before the jury is sworn will do.

Let's share the pain of this inane rule, and force AUSAs to subpoena witnesses and prepare in limine motions if they extort appeal wavers by withholding the third acceptance level. If the government is going to withhold the third acceptance level in any event, why should it enjoy the resource-savings benefit of an early plea?

Savvy district courts will soon figure out that AUSAs who abuse their power over this third acceptance level are causing everyone a great deal of unwarranted work -- and are doing so unfairly. Moreover, it is particularly notable that most experienced AUSAs (and to be honest, most reasonable prosecutors) have not been playing games with this third acceptance level.

How should we educate the district courts that this problem starts with the government, not our clients? Seek orders compelling conditional pleas, file case status memos explaining the third point is being withheld for unfair reasons, describe the dispute in the open-plea hearing and foreshadow the debate at sentencing. The abuse of this third acceptance level will carry unanticipated institutional costs -- and those costs should be laid squarely at the government's feet, where they belong.

For Further Reading: We’re not the only ones concerned by this abuse of the acceptance guideline. In United States v. Cannel, Judge Clifton was troubled by the denial of acceptance when defense counsel had the audacity to make an argument at sentencing. 517 F.3d 1172 (9th Cir. 2008) (Clifton, J., concurring in the judgment).

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

Image of the Hon. Consuelo Callahan courtesy of http://www.slate.com/id/2127241/?nav=ais

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U.S. v. Bendtzen, No. 07-50249 (9-5-08). The 9th (Wardlaw joined by Ikuta and Fogel) hold that a fake bomb used in a bank robbery can trigger the Guidelines adjustment for brandishing (+3) or use (+4). The Guidelines commentary includes fake weapons, and the focus is on appearing to cause death or serious bodily injury.

U.S. v. Medina-Beltran, No. 06-10181 (9-5-08). The defendant plead to the indictment charging him with 1326 but fought the sentencing enhancement. The government refused to move for the third point for acceptance. The 9th (per curiam) upheld the refusal by the court to grant the third point because the government has broad discretion to move for it or not. Here, the discretion was upheld because of the work (!) the government had to do in supporting the enhancement and because there was a refusal to accept an appeal waiver in the plea agreement. The 9th also found no separation of powers issue in the PROTECT Act in giving the power to move for the third point to the government.

U.S. v. Nader, No. 07-30311 (9-5-08). The defendants ran a prostitution ring from massage facilities. Telephones were used to set up appointments with customers. The defendants were found guilty under the Travel Act, 18 U.S.C. 1952, but appealed, arguing that all the phone calls were intrastate rather than interstate. The statute, they argued, prohibits the use of any facility "in interstate or foreign commerce" rather than the broader "of interstate or foreign commerce." The 9th thinks this is interesting, but holds that the plain language has the phrase focuses on the fact that facility itself must be in interstate commerce, not its use. This interpretation is supported by the other circuits. The 9th also finds support in the interpretation of other statutes with similar language (murder for hire). Thus, the 9th holds that the intrastate phone calls involves the use of a facility in interstate commerce. This reading comports with legislative intent.

Paulino v. Harrison, No. 07-55429 (9-4-08). The 9th affirms the granting of a petition for a Batson violation. The court had previously remanded for an evidentiary hearing, and the record indicates that the state prosecutor had no recollection now why African-American prospective jurors were struck except that it was not for racial reasons. The proffered reasons amounted to speculation.

Congratulations to AFPD Katherine Froyen of the C.D. Ca (Los Angeles).

Rodriguez v. Smith, No. 07-16014 (9-4-08). The 9th affirms the district court's decision holding that BOP's categorical exercise of discretion (or lack thereof) in not considering placing inmates in residential re-entry centers until they have six months or 10% of their sentences left violates congressional intent expressed in 18 U.S.C. 3621 that such consideration be taken after 60% of the sentence is served and weighing other factors. The 9th joins other circuits in this decision.

Congratulations to AFPD Steve Sady of the D. Oregon (Portland) for the win.

Cox v. Del Papa, No. 06-15106 (9-4-08). The 9th affirms the denial of a petition, holding that a court is not required sua sponte to order a hearing on the voluntariness of a Miranda waiver if there are competency issues. Here, the petitioner was represented by counsel, and the state had to show that it met the burden of consent for statements. The court is not required to order a hearing to have the state prove that it was voluntary. Under AEDPA, deference is given to the state supreme court's decision that such a hearing was unnecessary. The 9th also holds that counsel was not ineffective in his presentation of mitigation in arguing for less than a LWOP sentence.

U.S. v. Easterday, No. 07-10347 (8-22-08). The 9th (Schroeder joined by Fairbank, dissent by N. Smith) finds that circuit precedent has been effectively overruled by the Supreme Court. The precedent was U.S. v. Poll, 521 F.2d 329 (9th Cir. 1975), which requires, in a failure to pay payroll tax under 26 USC 7202, that the government prove the defendant could pay taxes, and the defendant could argue, as part of "wilful" failure that he did not have the funds. In this case, the defendant ran a series of nursing homes. His business situation became ill, and then grave, and so he did not pay payroll taxes in an effort to keep the businesses viable. At trial, the court refused an instruction, seemed to be supported in Poll, that he could defend on not having enough money and therefore his failure was not wilful. A Poll tax? The Supremes, however, in U.S. v. Pomponio, 429 US 10 (1976) (per curiam), held that "wilful" in a tax context meant that if you owe taxes, and do not pay them, you acted wilfully. There is not a necessity of "evil," nor of having to show that you had the funds. The 9th then says that prior precedent binds it, unless the Supremes over-rule, and here they did in substance. The 9th also points out that the prior case belies "common sense" in that it rewards a defendant for having spent money on everything but taxes. Dissenting, N. Smith argues that precedent is precedent, and that the jury instruction should have been given.

U.S. v. Daniels, No. 07-50242 (8-29-08). This case raises again issues as to supervised release conditions. The defendant plead to one count of possession of child pornography. On appeal, he argued that lifetime supervision was unreasonable. The 9th (Wallace joined by Gould and Ikuta) held that the court had implicitly considered the length of the SR term, and had alluded to there reasons set forth in the PSR. Again the 9th stressed that the court could have said more, but under Cope and Carty, the record indicates the court's consideration. The 9th remanded to clear up whether the court meant psychological or physiological testing as part of treatment and supervision. The court also needs to findings as to what prescribed medication the defendant must take.

U.S. v. Gambia, No. 06-35021 (8-28-08). The 9th (M. Smith joined by Goodwin and Fisher) hold that counsel, and not the client, can make the decision to have a magistrate judge preside over closing arguments. The trial was set for closing argument when the trial judge had to pick up his spouse from the hospital. Counsel agreed that the magistrate judge could preside over argument, and the district judge would take over when he returned. On appeal, the 9th held that counsel, for strategic and tactical reasons, could consent to a magistrate judge without the defendant's personal assent. The Supremes recent precedents provide support. If a magistrate judge can pick a jury, the magistrate judge can preside over argument.

Johnson v. Knowles, No. 07-15221 (9-2-08). The 9th (O'Scannlain joined by Hawkins and McKeown) define the Schlup "innocence" gateway for successor petitions. The petitioner here complained about procedural errors and mistakes. The 9th, examining the purpose of the Schlup innocence exception, holds that it is limited to those extraordinary cases where the petitioner asserts his innocence and asserts that a court cannot have confidence in the finding of guilt. Claims only asserting procedural violations fails to meet this standard.