Friday, February 29, 2008

U.S. v. Garro, No. 06-50513 (2-28-08). Sometimes you have to be shocked by the greed, and not the defendant's. Investers were promised a 100% return on their investments, and then 200%. It was like a hedge fund on steroids. If it seemed too good to be true, it was. Thirty-seven million dollars and change later, the investers were crying foul. There was a trial, and conviction (even after the defendant testified about the volatility of business . . . win some, lose some). At sentencing, the defendant got 135 months, which was a three-level departure from the guidelines. The 9th did not have much sympathy for his appeal, rejecting arguments against the adjustments for sophistication, obstruction of justice (testimony), use of another (secretary), and the burden of proof. The 9th, on that issue, held that clear and convincing is appropriate if there is uncharged conduct, but here the defendant was sentenced on the convicted counts. Moreover, this was a plain error review. The 9th finds the sentence reasonable after 3553 considerations.

U.S. v. Barsumyu, No. 07-50251 (2-28-08). The defendant got 21 months for a scheme to defraud credit cards and the defendant had a device making machine. The 9th upheld the sentence as reasonable, embracing a "holistic" approach to assessing the sentence and guidelines rather than adjustment by adjustment or factor-by-factor, so long as the guidelines are correct and all factors considered. The SR conditions lead to a remand because the court imposed no contact or use of computers anywhere, anytime, any circumstances. The 9th thought this a little extreme under the circumstances and facts, and the use of computers in our economy.

Tuesday, February 26, 2008

Thoughts On The Watson Concurrence And Statutory Construction

Federal defenders frequently need to brief statutory construction, pushing back against attempts to expand crimes and punishments beyond the words used in statutes and guidelines. Following threads from a recent concurrence, we can benefit from structural hints on how to brief questions of statutory interpretation.

Justice Ginsberg added a short concurrence to the unanimous Watson opinion’s holding that “use” of a firearm under 18 U.S.C. § 924(c) did not include trading drugs for a gun. Justice Souter, writing for the Court in Watson, reasoned that receiving the firearm was not a “use” based on the “ordinary and natural” meaning of the word – or “the language as we normally speak it.” The Court distinguished the Smith case, from fifteen years earlier, in which a divided Court had found that trading a gun for drugs constituted a “use”, triggering § 924(c)’s mandatory minimum. Justice Ginsberg, in a solo concurrence in Watson, would have overruled Smith based on the “reasons well stated” in Justice Scalia’s dissent in Smith. Revisiting that dissent, I am reminded of why Justice Scalia’s approach to statutory construction often provides federal defenders with an effective structure when we are layering constitutional and statutory arguments.

Justice Scalia wrote the book on statutory construction: A Matter Of Interpretation. For federal defenders, Justice Scalia’s call for textual loyalty and his opinions putting theory into practice provide two sources of argument: rules of construction that apply to all advocates but relieve defendants of pro-incarceration bias; and precedent requiring unstinting application of rules that prevent ambiguous statutes from morphing into pro-incarceration law.

As a craftsman in the practice of statutory interpretation, Justice Scalia provides a useful approach to the canons of construction. When the words work our way, Justice Scalia’s textualism requires respect for – and stopping at – the plain meaning of the statute’s words. The “ordinary or natural” meaning of the words have become a common starting point, from Bailey, to Leocal, to Watson, to the argument in Cuellar this week.

In A Matter of Interpretation, Justice Scalia urges us not to be shy about common sense rules of interpretation just because they are commonly expressed in Latin, such as expressio unius est exclusio alterius, noscitur a sociis, and ejusdem generis. So we mine the reported decisions for the strongest support for helpful rules, which show up in treatises, law reviews, and blogs. In addition to the usual suspects of construction, Justice Scalia adds such exotica as the somewhat oxymoronic “rule of the last antecedent,” according to which “a limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows” (Jama).

Rigorous application of the rules of construction frequently helps the defense: Justice Scalia’s textual loyalty purports to be blind to results. “We begin with the understanding that Congress ‘says in a statute what it means and means in a statute what it says there.’” (Hartford Underwriters) (Or, as Dr. Seuss would have said, “Congress meant what it said, And it said what it meant, A textualist’s faithful, One hundred per cent.”) If Congress enacted a law that lets a morally reprehensible actor off the hook, so be it. As he said during the Cuellar oral argument, there may be a gap in the statutes that fails to criminalize someone “obviously doing something very bad”: “I don’t know why we should torture either one of the statutes to close [the gap].”

Of course there is a cold and cruel downside. Textual loyalty means that, even if the result was not contemplated by the legislators, the judge does not bat an eye at a harsh outcome: multiple mandatory consecutive sentences for armed bank robberies charged in a single indictment (Deal), so be it; deportation of a Somali to a country where he may well be shot on the tarmac (Jama), so it goes. As Justice Scalia wrote, “Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former.”

But Justice Scalia’s approach to ambiguity always protects the criminally accused from greater incarceration. This approach is manifested in three related principles that give meaning in the real world to the idea that liberty can only be taken in conformance with the clearly stated intention of the legislature: rejection of legislative history as a guide to construction (R.L.C.); the doctrine of constitutional avoidance (Martinez); and the rule of lenity. From Moskal to Smith to James, no justice has advocated application of the rule of lenity with greater frequency than Justice Scalia. His dissent in James reflects his strong commitment to certainty in penal states: “[W]e have the responsibility to derive from the text rules of application that will provide notice of what is covered and prevent arbitrary or discriminatory sentencing.”

But there are limits to construction. Another aspect of Justice Ginsberg’s concurrence is that she was alone – not even Justice Scalia, as the author of the Smith dissent, joined her. This highlights Justice Scalia’s usual adherence to stare decisis on statutory matters: once the Court construed § 924(c) to require that “use” included trading a gun for drugs, the converse – trading drugs for a gun – could only be addressed in the context of the previous construction.

The prime example of Justice Scalia’s willingness to follow a construction he had previously rejected is our Martinez case, which involved the indefinite detention of Mariel Cubans who were inadmissible but could not be returned to Cuba. Earlier, in Zadvydas, Justice Scalia sharply dissented from Justice Breyer’s construction of the conditional release statute to limit detention to six months for deportable – as opposed to inadmissible – aliens. In Martinez, Justice Scalia followed the statutory text – exactly as interpreted in Zadvydas – to conclude that the same words had to mean the same thing for both deportable as well as inadmissible aliens. It will be interesting to see if the construction of the habeas corpus statute in Rasul, to which Justice Scalia dissented, finds any loyalty in his analysis of the rights of Guantánamo prisoners in the pending Boumediene case.

Justice Scalia’s silence on the validity of the Smith decision is also notable because, in A Matter of Interpretation, he refers extensively to his Smith dissent as providing a clear line of demarcation between strict constructionism, of which he disapproves, and his brand of textualism (pages 23-24). In describing his approach, it sounds as if we’ve moved from Dr. Seuss to Goldilocks’ search for porridge that is just right: “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.” Justice Scalia speaks of regret at the Court’s decision in Smith, unsure whether it resulted from the Court’s hyper-textualism or “because they are not textualists at all.” I wonder if the Watson concurring words were balm on an old wound.

As we structure our arguments on behalf of clients in trial courts and on appeal, Justice Scalia provides a good target for how to articulate the constructions most favorable to our clients: start at the ordinary and natural meaning of the language; look for support among the canons of construction; and, if there is still ambiguity, embrace the tie-breaker rules of interpretation that always favor the criminally accused.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
U.S. v. Turvin, No. 06-30551 (2-26-08). For about 14 minutes, it is a lawful traffic stop, and then the police ask an unrelated question: not about the speed limit, but about possible speed in the car. Is this a bad stop? The district court said, "yes," but the 9th (Wallace and Noonan) reverse, holding that asking unrelated questions did not extend the traffic stop unreasonably. The 9th reasoned that its prior decision in Mendez, 476 F.3d 1077 (9th Cir. 2007), controlled because there, a stop was not deemed unreasonable even when questions went from the license plate registration to gang life. Dissenting, Paez argues that unrelated questions can be asked only if there is a reasonable basis; the officer cannot just ask about anything and everything. The majority believes that that requirement had been overruled by Mendez. Moreover, the 9th allows the time was not unduly extended with the questions.

Saturday, February 23, 2008

Case o' The Week: Ninth Knocks BOP Rule Denying Year Break for 922(g) RDAP Grads, Arrington

Public Defender Hero and fellow blogger Stephen Sady earns a big victory against the BOP, when the Ninth rejects a rule that denies the one-year reduction for § 922(g) inmates (and others) who successfully complete the 500-hour residential drug treatment program (RDAP). Arrington v. Daniels, __ F.3d __, 2008 WL 441835 (9th Cir. Feb. 20, 2008), decision available here.

Players: Another victory for tireless inmate rights advocate, Chief Deputy Defender Steve Sady, Portland Oregon.

Facts: In 1990, Congress created a drug treatment program in federal prisons (the “Residential Drug Abuse Program,” or “RDAP”). Id. at *1. In ‘94, Congress gave a one-year off incentive for inmates convicted of “nonviolent offenses” who successfully completed the program. Id. The BOP designated § 922(g) [felon-in-possession] cases as violent offenses ineligible for the year-off. Over a decade of litigation followed, the rule was struck by the Ninth, circuit splits developed, and the Supreme Court waded in. Id. at *1-*2.

Ultimately, in 2000 the BOP promulgated a “final rule” and “exercised its discretion” to exclude § 922(g) inmates from the one-year reduction. Id. at *3. Eighteen prisoners filed habeas petitions.

Issue(s): “The question presented is whether the Bureau of Prisons violated . . . the Administrative Procedure Act (“APA”) when it promulgated this regulation.” Id. at *1.

Held: “[T]he Bureau failed to set forth a rationale for its decision to categorically exclude prisoners convicted of offenses involving the carrying, possession, or use of firearms from eligibility for a sentence reduction . . . . This failure renders the Bureau’s final rule invalid under the APA.” Id. at *6.

Of Note: This decision comes from an interesting panel – Judge Reinhardt authored, and Judges Hall and Milan Smith joined. The decision is based purely on the procedural failure of the BOP to articulate the reasons for its decision; Reinhardt is very careful to avoid the substantive merits of the rule itself (a rule that has previously been upheld by the Ninth and Supremes). Id. at *6-*7. It would be nice if the BOP finally threw in the towel. If they don’t, Sady will take them on (again).

How to Use: I spoke to a surprisingly helpful BOP legal counsel the day after the decision. He suggested that inmates who completed RDAP and who had been denied the reduction immediately file an “Administrative Remedies Request” or “COP-OUT” form to seek an earlier release date. Note that the rule affects more than § 922(g) cases – it also barred the reduction for drug defendants who got the two-level guideline gun bump, and some other substantive offenses as well.

Many defense counsel have not pushed § 922(g) clients to discuss drug addiction in PSR interviews, or sought RDAP referrals from the sentencing judge, because few inmates will complete the (challenging) program without the one-year incentive. Why invite a drug testing/treatment condition on supervised release, if RDAP wasn’t a real option? Arrington changes this strategy – at least for now. A year-off the custodial sentence is a huge incentive, and, as an added bonus, our clients benefit from treatment for the addictions that made them our clients in the first place.

Remember – it is much harder to get into the program without documentation of addiction in the PSR and a RDAP recommendation from the sentencing judge reflected in the order of judgment and commitment.

For Further Reading: Alan Ellis has a helpful description of RDAP here. The BOP’s rap on RDAP is here. There’s a useful “informal” description of the program here.

For the masterpiece on defense challenges to conditions and the length of federal confinement, visit Sady’s “Update on BOP Issues,” available here.

Finally, for a revealing – if slightly cynical – description of the RDAP program from a former federal inmate (including a description of a RDAP unit built next to a bar) visit Bill Bailey’s blog here.

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


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Wednesday, February 20, 2008

Raj v. Daniels, No. 07-35090 (2-20-08). The BOP strikes out again in its efforts to restrict early release to certain prisoners who completed a special inmate drug abuse program. The program was for prisoners convicted of non-violent offenses. For 12 years, the BOP tried to exclude inmates who had used or possessed a firearm as being violent. The first time, BOP adopted an impermissible definition of "crime of violence;" the second attempt was struck on notice and comment grounds (procedural). This last attempt fails under the APA. The 9th (Reinhardt joined by Hall and Smith) strikes down the BOP regulation for failing to set forth a rational rule. The BOP tried to justify the rule under the rationale that felons who had used guns are more likely to be a danger in the community. This rationale however was post hoc, and was not presented to the agency while the rule was being formulated. The second rationale, that exclusion was necessary to create uniformity amongst the different laws and definitions across the circuits was arbitrary and capricious. The agency could just as well have included such inmates. The reason that BOP chose one over the other (mean spiritedness?) was never explained or justified. Thus, it violated the APA.

Congratulations to AFPD Steve Sady of D. Oregon, who has litigated this issue over the 12 years.

Cook v. Schriro, No. 06-99005 (2-20-08). The 9th affirms the denial of a petition in a capital case. The petitioner represented himself, and the Faretta waiver was knowingly and proper. Bad things flowed as a result, such as preserving most trial and sentencing issues. The petitioner's attempt to raise IAC in the appellate context was also denied. The 9th held that the prosecutor's rebuttal was proper, and did not comment on silence. Lastly, there was no evidence to support the giving of a second degree jury instruction.

U.S. v. Murphy, No. 06-30582 (2-20-08). The 9th (Reinhardt joined by Goodwin and Smith) considers a search of storage units where a defendant was living. The police followed suspects of meth production back to a storage unit where they knew the defendant was living. The unit was rented by another suspect. The police knocked on the door, and the defendant greeted them with a metal pipe in hand. The police ordered him to drop the pipe, which he did, and the police supposedly saw a meth lab. The police then conducted a sweep. The police then waited a couple hours, and did another search, supposedly with the consent of the renter of the storage unit (the other suspect). The 9th upheld the first search under the protective sweep exception, because the police did not know if the other suspect was hiding in the unit. Plain view, however, still requires a warrant, or other exception. The 9th held that the search two hours later was not proper because the defendant was living at the unit, and had an interest that he shared with the renter. Under Randolph, the consent of the non-resident co-owner could not trump the objection of the resident /defendant. The 9th also stressed that there is no hierarchical standing recognized here. An owner, as opposed to resident, is not the same as a parent/child or military. This is an important vindication of Randolph.

Tuesday, February 19, 2008

U.S. v. Rosales, No. 05-30260 (2-13-08). This is an affirmance of a conspiracy and possession with intent convictions. The defendant argued that there was insufficient evidence for a jury to find that the conspiracy was for more than 500 grams or that he possessed with intent to distribute on a certain date. The 9th (Guilford joined by Kozinski and Fisher) didn't buy it, in finding that co-conspirators did, in fact, buy it. The opinion goes metaphoric, in describing the tapestry of evidence, with strands that have little meaning until the whole is woven, and warped, and so forth. (But if there is error, could one then say that the whole weave should unravel, and thus prejudice could be the slightest loose thread? Just a thought). The 9th did go through the wiretap, and the "code" of drugs and amounts to show that a jury could connect the dots. The 9th did find for the government in its cross appeal that an 841(b)(1)(B) mandatory sentence should apply because of a prior state drug conviction.

Larson v. Palmateer, No. 04-35465 (2-13-08). Petitioner murdered his father and step-mother. Petitioner went through three sets of counsel, when the state court court said "enough" and refused a fourth set. Petitioner went pro se with stand-by counsel. The 9th affirmed (Fisher joined by Berzon and Barziley), recognizing that the Sixth Amendment requires adequate counsel, but does not require a warm and fuzzy relationship. At trial, the state court committed various errors, such as shackeling petitioner, and then, two days into a six-day trial, telling the jury that the "leg shackles" were being removed because of a physical impairment. The federal courts thought it wrong that no findings were made as to why shackles were required, nor about the jury instruction, but harmless it was, as was the failure to exclude witnesses by the state court although requested by petitioner. The 9th excused it, under AEDPA deference, because there was no evidence that state witnesses "tailored" their testimony (it was a day for swing and weaving metaphors. See above).

Anderson v. Terhune, No. 04-17237 (2-15-08) (en banc). "I take the Fifth!" So, is that a request for Beethoven's symphony at a record store? Is it a request for a bottle at a package store? Or is it an invocation of the right to silence. The 9th, in an en banc decision, forcefully holds that a defendant who states "Take the Fifth" wants to stop the questioning. This is a state case (California) where the petitioner was suspected of murder. He was questioned for a number of hours in custody (he had been arrested on a parole violation before the interrogation started) and although he tried to stop the questioning by invocating, the police refused to be daunted. The state courts held that the statement "take the Fifth" was ambiguous and that efforts to clarify resulted in a waiver. Reviewing en banc, the 9th (McKeown) found that the statement "I Take the Fifth" was emphatically an invocation. The 9th stressed that anything else would be a mockery and undermined the intent of Miranda and Dickerson. Under AEDPA, the 9th concluded that the state court's findings were unreasonable and that the Supremes had articulated the test which the courts failed to follow. In a concurrence, Silverman, joined by Rawlison, parse the statement a bit. The concurrence would find that the statement "take the Fifth" was somewhat ambiguous because it may have meant a subject matter (drugs) as opposed to murder, or a different context. The officer could clarify but overstepped the bounds when the questioning continued. Bea concurred and dissent, finding that a waiver had occurred after the statement (although there was a mysterious "turning off the tape recorder). Dissenting. Tallman (joined by Callahan) would find that the statement was ambiguous. It is a strange dissent that in arguing the police were unclear what the petitioner kept asking, turns precedent on its head. For example, Tallman cites Davis as allowing officers to clear up ambiguities, but that opinion also states (Souter) that the invocation requires no specific magical words, and the articulation of an Oxford Don was not necessary. Tallman's dissent would clearly give a blank check to state courts under AEDPA unless there was an exact, down to the very phrase, Supreme Court case on point.

This is an important decision as to ambiguity and on invocation.

U.S. v. Hir, No. 07-10500 (2-15-08). The 9th (Reinhardt joined by Goodwin and W. Fletcher) reviews the decision to hold an American citizen charged with aiding Filipino terrorists as a danger. The 9th holds that the government had carried the persuasion that the defendant was a danger, looking to the types of aid he allegedly had given (communications, firearm accessories, "contacts," and even phones that could be used in explosives). The case turns on "danger to the community." Is the community the judicial district (N.D. Ca)? Is it the United States? Can it be a foreign community? The 9th does not come out with a rule. The community is not just the judicial district; and it can be wider. Under these facts, the community can be considered the Philippines, and the type and extent of defendant's ties to his brother's terrorist organization, with the presented evidence, satisfies the danger analysis. Moreover, there are no conditions that could assuage this danger as presented. This is an opinion, although coming out for detention, that has good analysis as to how danger can be mitigated. The district court had found that the defendant's presence could be assured by conditions.

Saturday, February 16, 2008

Case o' The Week: Fifth Lives In Ninth, Anderson

"What about the words 'I plead the Fifth' is unclear, ambiguous, or confusing to a reasonable officer? Nothing."

The Honorable M. Margaret McKeown authors a great habeas
en banc decision this week, that strongly reaffirms the
Fifth Amendment right to counsel -- despite the restrictions of AEDPA. See Anderson v. Terhune, No. 04-17237, __ F.3d. __, 2008 WL 399199 (9th Cir. Feb. 15, 2008), decision available here.

Guys and Dolls, "Law and Order," and the Country Western Classic, "What Part of No," all support her
analysis, in what is now the new lead Ninth Circuit case for invocation of the Fifth Amendment right-to-silence.

Players: Decision by McKeown. Big victory for Sidley Austin’s Jeff Green, ED Cal AFPD Dave Porter, NACDL’s Sheryl McCloud, among others.

Facts: Murder-suspect Anderson was questioned by cops. Id. at *2. He ultimately exclaimed, “Uh! I’m through with this. I’m through . . . . I plead the [F]ifth.” Id. at *3. A cop retorted, “Plead the [F]ifth. What’s that?,” and continued questioning until Anderson confessed. He was convicted of special circumstances murder. Id. The state trial court found no Fifth Amendment violation because the “invocation was ambiguous,” the state appellate court affirmed, and the federal district court (E.D. Cal D.J. William Shubb) denied the petition for a writ of habeas corpus. Id. at *1.

Issue(s): “Anderson challenges his conviction of special circumstances murder on the grounds that he was denied his constitutional right to remain silent and that admission of his involuntary confession into evidence violated his right to due process. Specifically, Anderson claims that he invoked his Fifth Amendment right to terminate his police interrogation and that the police officer's continued questioning violated that right.” Id. at *1.

Held: “[T]he state court's conclusion that Anderson’s invocation was ambiguous was an unreasonable application of Miranda and based on an unreasonable determination of the facts . . . . Only one reasonable conclusion can be gleaned from his statements, especially his last declaration, ‘I plead the Fifth’: Anderson invoked his right to remain silent and wanted to end the interrogation. Construing the officer's statement, ‘Plead the Fifth? What’s that?,’ as asking what Anderson meant is also an unreasonable determination of the facts . . . . These errors were not harmless and, accordingly, we reverse the judgment of the district court and remand with directions to grant the writ . . . .” Id. at *2.

Of Note: Even under AEDPA’s deferential review, this case seems like a defense slam-dunk. (Visiting) D.J. Hogan and Judge Kozinski didn’t see it that way, however, when they ruled as a panel against Anderson – without oral argument! See 467 F.3d 1208 (9th Cir. 2006) (McKeown, on the original panel, dissented). (Interestingly, former Kozinski clerk Judge Ikuta later joined the majority en banc decision reversing her old boss).

Judges Silverman and Rawlinson, on the en banc panel, concur in the judgment but disagree with the scope of McKeown’s majority decision. Id. at *9. Judge Bea concurs in part and dissents in part, and Judges Tallman and Callahan dissent. Id. at *11, *15.

Anderson was decided by one of the old fifteen-member en banc panels – if you have a Fifth Amendment or Miranda issue before the Ninth, odds are a judge or two on your panel was on Anderson. The case serves as an excellent litmus test for a judge's view on Miranda and Fifth Amendment issues.

How to Use: The en banc panel looked at this case “through the AEDPA lens of deference.” Id. at *8. In other words, this violation was so clear that even on habeas review, it was error. This makes Anderson the Ninth's uber-decision on the right to remain silent, because it is an en banc opinion, and because the defense prevails despite the highest level of appellate deference. Use the case for three core principles:

1) a trial court cannot fall back on t
he “context” of the interview to characterize an invocation of the right-to-remain silent as “ambiguous” (borrowing from right-to-counsel law), id. at *4;

2) An unambiguous invocation of the right-to-silence stops the interview – a cop can’t further pry by asking “clarifying” questions about the scope of the invocation, id. at *5-*6;

3) If cops continue questioning despite an unambiguous invocation, the defendant (generally) doesn’t “waive” the Fifth by later answering further questions, id. at *8 (Judge Bea’s beef with the decision in the dissenting portion of his opinion, id. at *12).

The Big (Unanswered) Question? Does some break in time before a later Fifth Amendment waiver by the suspect "cure" any Fifth Amendment problems? See id. at *8 (Section V of the majority decision). Let’s hope the Supremes don’t decide to answer that question by taking Anderson up.

For Further Reading: Over a year ago, we touted JudgeMcKeown’s dissent (and lamented the original Anderson decision). See Anderson Case o' The Week blog here. As should be clear from the above posting, we're delighted to see this dissent blossom into an en banc majority decision.

A recent Volokh Conspiracy blog, however, was less enthused about the en banc opinion – and speculates about the possibility of Supreme Court review on the "waiver" issue emphasized by Judge Bea. See Volokh Conspiracy Posting here. Bea's habeas dissents are unwelcome cert.-bait: Musladin is still fresh in our mind.

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


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Wednesday, February 13, 2008

Harris v. Carter, No. 06-35313 (2-8-08). "Come on," says the 9th, "give the petitioner a break when he relied on our precedent in not filing sooner." Petitioner is serving a state LWOP sentence for a murder. He appealed his sentence, and when that became final, filed a timely state petition, and then subsequently untimely ones. The 9th's precedent had been that even untimely state petitions tolled AEDPA's one year statute of limitations. The Supremes reversed in Pace, holding that untimely state petitions are not properly filed. The petitioner's federal claim was timely under the 9th's precedent, but barred by Pace. The State argued that petitioner was now time-barred. The 9th, joining the 10th, invoked equitable tolling, since the petitioner had relied upon established clear precedent, and had not been negligent or tactical. Equity demanded tolling, and the 9th let him proceed past the toll booth on AEDPA's already narrow fast track.

Tuesday, February 12, 2008

Rogue Footnote Creates Need For Cert To Address Expansion Of Almendarez-Torres

In three Ninth Circuit cases, stare decisis became a dead letter for those advocating that Sixth Amendment rights should apply to the characteristics, sequence, and existence of prior convictions that increase statutory maximums. Defenders have been arguing that the Armed Career Criminal Act must be construed to avoid constitutional doubts regarding pleading and proof that the defendant has qualifying prior convictions and they occurred on “occasions different from one another.” The Doctrine of Constitutional Avoidance argument is based on a syllogism from a series of Supreme Court cases starting with Almendarez-Torres:

Almendarez-Torres involved the Fifth Amendment right to grand jury indictment, as held in Jones;

Almendarez-Torres must be narrowly construed, as held in Apprendi;

• Where the relevant statute is silent, rather than applying or extending Almendarez-Torres, the Doctrine of Constitutional Avoidance should be applied to interpret the statute to require Sixth Amendment-compliant proof of the characteristics and sequence of prior convictions that increase punishment, as held in Shepard and Haley;

• The ACCA is silent regarding pleading and proof of the characteristics and sequence of prior convictions that increase the statutory maximum from ten years to life imprisonment;

• Therefore, the ACCA must be construed to require Sixth Amendment-compliant proof of the characteristics and sequence of prior convictions.

But in James, a statutory construction case, Justice Alito dropped dicta in footnote 8 that mischaracterized Almendarez-Torres as a Sixth Amendment case, which – if accurate – would resolve doubt on that previously unresolved question.

The James footnote 8 has destroyed the lower courts’ ability to fairly resolve the pressing legal questions regarding prior convictions that increase statutory maximums. In the Fifth Circuit, two judges bashed litigators for having the temerity to raise such “non-debatable” issues in light of the James footnote 8, while a concurring judge dismissed any reliance on “the insignificant, peripheral dictum in footnote 8” (Pineda-Arrellano). The Ninth Circuit has now three times foreclosed debate on the Doctrine of Constitutional Avoidance in Grisel, Ankeny, and – most recently – Jennings. The First and Sixth Circuits have also abandoned discussion based on the James footnote, which is not only dicta but directly contradicts the holding of Jones.

In order for the rules of stare decisis to work for our clients, we need to persist in efforts to ask the Supreme Court to resolve the conflict in its precedent: either Jones is good law, the James footnote was a slip, and Almendarez-Torres is only a Fifth Amendment indictment case; or James expanded Almendarez-Torres to the Sixth Amendment without mentioning that such a holding would contradict Jones, Apprendi, Shepard, and Haley. The question is cert-worthy not only because of its importance in ACCA litigation and the development of post-Apprendi Sixth Amendment jurisprudence, but because the conflict in its opinions can best be addressed, and maybe can only be addressed, by the Supreme Court itself.

Almendarez-Torres Is Solely A Fifth Amendment Indictment Case

The Almendarez-Torres holding only purported to address the Fifth Amendment right to indictment. In that case, the defendant raised the failure of the indictment to include the prior conviction that increased the statutory maximum for illegal reentry from two to twenty years. The Court noted that, because he admitted the prior three times during the plea colloquy, “Petitioner makes no separate, subsidiary standard of proof claims with respect to his sentencing,” and therefore “we express no view on whether some heightened standard of proof might apply....”

In the following Term, the Supreme Court addressed a Sixth Amendment claim in Jones that, because a finding of bodily injury increased the statutory maximum under the car-jacking statute, the fact had to be found by a jury beyond a reasonable doubt. Because the statute was ambiguous, the statute could be construed to require Sixth Amendment compliance without reaching the ultimate constitutional question. The dissenters claimed that the Doctrine of Constitutional Avoidance could not apply because Almendarez-Torres found the canon inapplicable. The Jones majority, in applying the Doctrine of Constitutional Avoidance to the statute, rejected the dissenters’ argument because Almendarez-Torres “stands for the proposition that not every fact expanding a penalty range must be stated in a felony indictment” whereas “we are concerned with the Sixth Amendment right to jury trial and not alone the rights to indictment and notice as claimed by Almendarez-Torres.”

Then Apprendi came down in a case in which the state assault statute unambiguously required harsher punishment based on a judge-made finding by a preponderance of racial animus. The Supreme Court incorporated the Jones constitutional concerns and required Sixth Amendment compliance regarding factors that increased the statutory maximum. The Court left the Sixth Amendment question regarding prior convictions open: the general rule included an exception for prior convictions, but also included the requirement that Almendarez-Torres be treated as “a narrow exception to the general rule...” Because Apprendi did not involve prior convictions, and because Apprendi did not involve the federal right to grand jury indictment, the Sixth Amendment question regarding prior convictions did not need to be addressed. “Constitutional rights are not defined by inferences from opinions which did not address the question at issue” (Cobb).

After Apprendi, Almendarez-Torres continued to be undercut. In Ring, the Court decisively rejected the sentencing factor/element distinction for the purposes of Sixth Amendment analysis, despite its use in Almendarez-Torres. In two cases, the Supreme Court explicitly ruled that application and extension of Almendarez-Torres involved serious constitutional questions to be avoided if possible under the Doctrine of Constitutional Avoidance (Haley; Shepard). And the Supreme Court in Cunningham’s footnote 14 explicitly rejected the contention that Sixth Amendment analysis should differentiate between offense and offender characteristics.

After Blakely and before Booker, lower courts held that characteristics and sequences of prior convictions implicated the Sixth Amendment (for example, Kortgaard, Ngo, Kuau, Henderson). In the Fourth Circuit, Chief Judge Wilkins issued a dissent in an ACCA case finding that, even without resort to the Doctrine of Constitutional Avoidance, the Sixth Amendment required pleading and proof of the ACCA factors that increased the maximum punishment from ten years to life without parole (Thompson).

How Did Almendarez-Torres Become A Sixth Amendment Case?

In James, the Court split 5-4 along unconventional lines in holding that, under the ACCA, attempted burglary under Florida law qualified as a predicate “violent felony.” Justice Alito’s opinion drew a strong dissent from Justice Scalia regarding the rules of statutory construction and the rule of lenity. Mr. James only raised a statutory issue but asserted that, even though he admitted his prior convictions in his guilty plea, Apprendi favored his construction. In a footnote, Justice Alito pointed out the defendant’s admission regarding the prior convictions, then added: “[I]n any case, we have held that prior convictions need not be treated as an element of the offense for Sixth Amendment purposes,” citing Almendarez-Torres with no spot cite to a page or quotation supporting that proposition.

Given the plain language of Almendarez-Torres disclaiming any Sixth Amendment holding, given the holding of Jones that Almendarez-Torres is only an indictment case, given the holding of Apprendi that Almendarez-Torres must be narrowly construed, and given the holdings of Haley and Shepard that application and extension of Almendarez-Torres should be avoided if possible, the James footnote is either a mistake or an adoption of the Jones dissent in violation of the rules of stare decisis.

Based on James, the Ninth Circuit has now three times rejected the argument that the Doctrine of Constitutional Avoidance applied to the Armed Career Criminal Act. Where the fact, sequence, and characteristics of predicate convictions were not admitted or proved to a jury beyond a reasonable doubt, the court had to construe the ACCA to be inapplicable unless governing Supreme Court authority held that Almendarez-Torres controlled against a Sixth Amendment challenge. Based on the James footnote 8, the court has consistently mischaracterized Almendarez-Torres as resolving that not only the Fifth Amendment right to indictment but the Sixth Amendment standards of proof. If that were the holding of Almendarez-Torres, the court would be correct that only the Supreme Court could overrule that holding (Agostini). But if Almendarez-Torres is correctly limited to the Fifth Amendment right to indictment, the court has abdicated its responsibility to construe statutes to avoid possible constitutional violations.

This is especially true given the Supreme Court’s holding in Martinez that the Doctrine of Constitutional Avoidance involves not only the facts of the case at hand but the “least common denominator” – the facts that would create the biggest constitutional problem. For example, the statute must take into consideration the possibility that the facts for increased punishment could only be proved by a preponderance. Under the ACCA, a defendant could receive life without parole, instead of a ten year maximum, where the government could not prove beyond a reasonable doubt that the defendant is the same person as the person with the prior conviction or that the underlying crimes were “committed on occasions different from one another.”

Certiorari Is The Solution

So what should federal defenders do when clients are sentenced above the statutory maximum based on prior convictions without compliance with Sixth Amendment jury trial and reasonable doubt requirements? We see great increases in sentences based on the sequence and characteristics of prior convictions in the context of firearms, immigration, and child pornography statutes. The recent competing statements of Justice Stevens and Justice Thomas on the denial of certiorari in Rangel-Reyes demonstrate that the Supreme Court may not revisit the constitutional merits of Almendarez-Torres any time soon. Our best hope seems to be to preserve the issue and to encourage the Court to grant certiorari to construe statutes in a manner that limits Almendarez-Torres without the necessity of overruling the Almendarez-Torres holding on the Fifth Amendment right to indictment.

The reasons for a grant of certiorari are exceptionally strong. The three areas in which these issues arise are among the most frequently prosecuted federal crimes; immigration alone now accounts for almost 25% of federal sentences imposed. With the conflict between the Jones holding and the James footnote, the Supreme Court cannot hope for the lower courts to sort things out; traditional analyses have been ruled out by the conflicting precedent. And the jury trial rights – especially the reasonable doubt standard – are at the apex of protections that should be required, under the statutes or the Constitution, before sentencing people to long terms of incarceration.

When clients are sentenced without full Sixth Amendment protections, both the Doctrine of Constitutional Avoidance and the Sixth Amendment provide colorable claims worth preserving for appeal. We should keep litigating these issues: logic and stare decisis should be resulting in substantially less incarceration for our clients in the absence of Sixth Amendment compliance, either as a matter of statutory construction or directly under the Consitution.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Sunday, February 10, 2008

Case o' The Week: Ninth Categorically Opposed (Sort of) to Expansion of Categorical Analysis, Jennings

An important decision on the categorical/modified categorical analysis reminds us again why we hated to see the Honorable Wallace Tashima take senior status. United States v. Jennings, __ F.3d __, 2008 WL 282366 (9th Cir. Feb. 4, 2008), decision available here.

Players: Decision by Tashima, joined by Berzon; dissent by O’Scannlain.

Facts: Jennings pleaded guilty to being a felon in possession of a gun and was hammered with the fifteen-year mandatory minimum required by 18 USC § 924(e), the Armed Career Criminal Act (“ACCA.”) Id. at *1. Among many other issues, Jennings argued that a prior Washington state conviction for “eluding police” was not a violent felony that could serve as an ACCA predicate and challenged his sentence on appeal.

Issue(s): Can a court go beyond the “categorical” approach to the “modified categorical” analysis to determine whether a prior conviction is a predicate offense, when the statute of conviction is missing an element of the generic crime?

Held: “The modified categorical approach . . . only applies when the particular elements in the crime of conviction are broader than the generic crime. When the crime of conviction is missing an element of the generic crime altogether, we can never find that ‘a jury was actually required to find all the elements of’ the generic crime.” Id. at *9. “We thus conclude that Jennings was not convicted of all of the elements of a generic violent felony.” Id. at *10 (remanded).

Of Note: Jennings is the cutting edge of the Ninth Circuit’s categorical/modified categorical jurisprudential goo (if goo has edges). One bad aspect of the case is that the Ninth abandons an old rule that the modified categorical approach can not be used in the “otherwise” or “catchall” clause of § 924(e)(2)(B)(ii). Id. at *7. In plain English, this means that a federal court can now use the modified categorical approach to determine if the conduct in the predicate offense “otherwise involves conduct that presents a serious potential risk of physical injury to another” – a blow for the defense.

The "good" rule in Jennings, however, sparked a strident dissent by Judge O’Scannlain (right). He complains that the particular Washington crime at issue should be a predicate offense. More worrisome is his argument that intervening Supreme Court authority permits the use of the “modified categorical” approach beyond the narrowing limitations found in Tashima’s decision. Id. at *10 (O’Scannlain, C.J., dissenting). Whistle in the graveyard as en banc and cert. ghosts (hopefully) pass by.

How to Use: Identifying (and contesting) predicate offenses is an insanely complex task, and a task that carries huge stakes for our clients. Here’s a quick defense flow chart:

* Read the federal statute defining qualifying predicates, carefully. For example, a “crime of violence” in 18 USC § 16 is very different than a “crime of violence” in 18 § 924(e)(2)(B). Often a valid predicate for one federal statute is not for another, even if the same general “phrase” is used (like “crime of violence.”)

* Apply the categorical approach. Is the statute underlying the prior conviction missing an element of the “generic crime” altogether? If so, stop - you win! Id. at *9. Under Jennings, if the underlying statute is missing an element of the “generic crime” altogether the court cannot move onto the “modified categorical” approach.

* If the underlying offense has all of the elements of the generic crime, but they are “broader than the generic crime,” then move onto the modified categorical approach. Seek shelter in the Ninth’s many strict limitations on the documents that can be used in to modified categorical analysis. See, e.g., United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc) (discussing limitations on evidence and documents that can be used during the modified categorical analysis).

For Further Reading: Is the Ninth is the only Circuit scratching its collective head in this area? Nope – the Fifth also recently struggled with the categorical/modified categorical two-step. See Fifth Circuit Blog on Gonzalez-Terrazas, here.

Steven Kalar, Senior Litigator. Website at


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Wednesday, February 06, 2008

Ninth Circuit Practitioners: Time To Sign Up For Electronic Notifications

It’s time for all appellate practioners to join the Ninth Circuit as it strides into the 20th Century by taking the first step toward electronic case management and filings. On January 25, 2008, the Clerk’s office provided registration instructions for a new system starting on March 3, 2008, that will provide electronic notification by email – “Notice of Docket Activity” – of any actions the Ninth Circuit takes in your case. The Clerk’s statement regarding implementation of this program, as well as the link to the registration form, is available here. You and other designated recipients will receive an email stating action has been taken and, with a click, you receive one free download of the document, which should be available also through PACER.

Prompt notification of decisions in our cases seems like progress. The process looks simple: you click the bottom line on the notice linked above to request a registration form; the Clerk emails a form to you; you click the link to the form and fill it out with as many addresses as you want notification; then click submit.

The Clerk plans to go to full Electronic Case Files this summer. We should stay ahead of the curve by registering and starting to receive communications at our desks without waiting for snail mail.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
U.S. v. Jennings, No. 06-30190 (2-4-08). Does the rationale behind the whole categorization of prior convictions "elude" you? Blame Taylor, Shepard, and progeny. Here, defendant was convicted of being a prohibited possessor of a firearm. He has three priors, and was AACA-fied (yes, a new term just coined). On appeal, the 9th (Tashima joined by Berzon) affirmed the denial of suppression (defendant initiated a little chat with ATF about a missing serial number); however, the 9th vacated and remanded the sentence because one of the Washington State's priors, attempted eluding of a police car, is not categorically a violent felony under ACCA. The reason was that the state prior of eluding lacked any element of actual or potential risk of harm to another or a mental state of such. Because the offense lacked this mental state, ACCA's catch-all of "conduct that presents potential risk of physical injury to another" is not applicable. Dissenting, O'Scannlain argues that the Supremes have effectively overruled 9th Cir. precedent on this issue in Duenas-Alvarez, 127 S.Ct 815 (2007) and James, 127 S. Ct. 1586 (2007). These two cases interpret ACCA and hold that conduct falling outside a generic definition has to be realistic and not metaphysical. O'Scannlain believes that a risk was present here and it is metaphysical to believe otherwise. He also argues that previous 9th precedent (Kelly, 422 F.3d at 893) is wrongly decided in that it posits an "all or nothing" approach to the categorical analysis and is at odds with all the other circuits.

Gonzalez v. Knowles, No. 06-17054 (2-6-08). The 9th (Cowen -- visiting -- joined by Smith over a dissent by Hawkins) affirms the denial of a habeas petition. The petitioner was serving a 16-year child sex sentence in California. He had received a stiffer sentence but his appointed lawyer on appeal got a new sentencing. Petitioner sought to have the lawyer appointed for the resentencing because the lawyer knew the case, and had worked up extensive mitigation. The state trial court said "that's not how we do things around here" and appointed a lawyer with no familiarity with the case. Oh yes, the lawyer who sought appointment after appeal was willing to work for the county's appointed rate. No such luck. The Sixth Amendment gives counsel, but not counsel of choice, and here the judge's decision was not unconstitutional. The new lawyer received a lengthy letter from the old one, detailing what mitigation was out there. The new lawyer did nothing. The courts all said that was "fine," and if there was something to be done, well, it was harmless. Dissenting, Hawkins wonders why a policy of "that's not how we do it around here" should trump the advantages of an experienced counsel familiar with the case. Hawkins stressed that an evidentiary hearing should have been held on the IAC claim.

Sunday, February 03, 2008

Case o' The Week: Ninth Falls for Government's Snipe Hunt, New Fourth Rule

Do folks really still fall for the "snipe hunt" gag? The Ninth does here. Judge Bybee creates a new rule -- and a bad one, at that -- for the "emergency" exception to the Fourth Amendment warrant requirement. United States v. Sonny Snipe, __ F.3d __, 2008 WL 216996 (9th Cir. Jan. 28, 2008), decision available here. While Snipe purports to be dictated by a 2006 Supreme Court case, the new Ninth Circuit decision rejects any limitations on a warrant-exception rule that will be quickly abused by law enforcement.

Players: Decision by Judge Bybee, joined by Judges Thompson and Kleinfeld.

Facts: An unidentified, hysterical man called the cops on a non-emergency line at 5:00 am on New Year’s day. Id. at *1. He said “get the cops now,” to the residence of defendant Snipe’s father. Id. Cops reported, and one of them – who lived down the street – noticed i) a strange car in front of the house, ii) someone he didn’t know entering the house, and iii) lights on inside, though the rest of the block was dark. Id.

The cops knocked on the open door, it opened, they went in, and saw a bunch of guys hanging around a table full of drugs. Id. With permission, they looked around. Id. The cops left, got a warrant, returned, found a gun with an obliterated serial number, and charged Snipe. [ed. note: They left the house and went to get a warrant? Only in Idaho – L.A. or S.F. cops would have had everyone in choke holds on entry].

Snipe appealed after a plea. Id. at *2. (Note the government's interesting goof -- this wasn't a conditional plea, but the government forgot to object at the plea and so waived any challenge to appeal). Id. at *2 n.3.

Issue(s): “Snipe challenges his conviction on the ground that the district court erroneously denied his suppression motion.” Id. at *2.

Held: “[W]e affirm Snipe’s conviction. The officers’ initial entry was justified by exigent circumstances, and their subsequent observations of illegal drugs in plain view provided probable cause for the search warrant that led to their finding the firearm with an obliterated serial number.” Id. at *2.

Of Note: This is an important case that changes a longstanding Ninth Circuit rule. The Ninth previously used a three-part test for “emergency entry” cases. See id. at *2 (discussing United States v. Morales Cervantes, 219 F.3d 882, 888 (9th Cir. 2000)). That test – which included a probable cause component – is now gone.

Judge Bybee creates a new test in light of the Supreme Court’s 2006 decision in Bringham City. Snipe, 2008 WL 216996, *3. The new Ninth Circuit test asks whether:

“(1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and

(2) the search’s scope and manner were reasonable to meet that need.” Id. at *4.

What is not in this new test is any showing of probable cause linking the “emergency” and the location searched, or any confirmation that the emergency call was authentic. Id. at *4-*5. (Remember: the call in this case was anonymous, not made to an emergency line, and had no caller ID). As discussed below, anticipate much abuse of this rule.

How to Use: Drug dealers and estranged lovers will love Snipe. Just call the police from a blocked cell number, scream while you anonymously report an “emergency” at your rival dealer’s or ex’s place, then sit back and enjoy the fireworks. There’s no need for any other indicia of reliability that courts annoyingly require for the typical anonymous snitch. Or, to avoid the middleman, a beat cop can “hear” hysterical cries from a suspected drug location and just barge in – the cop’s subjective reason for entering is no longer relevant. See id. at *4 (discussing objectively reasonable basis for search); id. at *3 (discussing Whren).

The Snipe rule will be abused, and quickly. When fighting an exigency search, contrast the depth of supporting facts in the Snipe case. In Snipe, there was:

• a hysterical call asking for a response to a specific address;
• the cop lived on that street and recognized a strange car (only in Idaho);
• the cop who lived on that street saw a stranger enter the house;
• lights were on at 5 am, unlike every other house on the block;
• the entry was just a gentle knock on an open door;
• the cops declined an invitation to kick in the door of a locked room inside the house; and
• the cops went and got a warrant before conducting a full search.

The new Snipes rule is a “totality of the circumstances” test, and few searches (outside of Idaho) will boast as many facts supporting a “reasonable” entry as Snipes.

For Further Reading: For a thoughtful analysis of the objective/subjective Fourth Amendment debate as it was (miserably) played out in Bringham City, see George E. Dix, Subjective “Intent” as a Component of Fourth Amendment Reasonableness, 76 MSLJ 373 (2006).

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


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