Saturday, May 31, 2008

Case o' The Week: Better Late Than Never, OK in Santana

The Ninth zinged us. In a rare show of efficiency, we had the following Santana memo finished last Thursday. The Court, of course, then issued the important Giberson decision on Friday (blogged above). It pays to procrastinate.

Here is the bonus Case o' The Week memo on Santana and a prisoner's long wait (left) to be picked up for a supervised release violation. United States v. Santana, __ F.3d __, 2008 WL 2178132 (9th Cir. May 27, 2008), decision available here.

Players: Hard-fought case by San Diego AFPD Zandra L. Lopez.

Facts: While on supervised release, Santana picked up a state case for which he got three days jail time. It was 121 days between his last day of state custody, and when the feds finally got around to getting him to his initial appearance. (Time spent in custody on the federal warrant, of course.). Santana moved for dismissal based on this delay: the district court denied the motion.

Issue(s): “Santana argues that his right to prompt disposition of the government’s petition to revoke his supervised release was violated by the government’s unjustified delays in executing the warrant for his arrest and in bringing him before a judge for his initial appearance.”

Held: “[Given the “short” length of delay,] the Court holds that the very recent Mendoza presumed prejudice rule is not appropriate.” “The Mendoza analysis being inappropriate, we apply our ordinary test in supervised release revocation cases and search for actual prejudice. . . . At oral argument, Santana’s counsel admitted that he received full credit against his sentence for the time he spent in pre-revocation incarceration. Santana has not identified any other prejudice, aside from the anxiety of awaiting his revocation proceedings. In this case, even though the delay appears attributable to the government’s neglect, in light of the lack of actual prejudice, we conclude that the four-month delay did not violate Santana’s due process rights or his rights under Rule 32.1.”

Of Note: The Court in Santana recaps the Speedy Trial Clause analysis, but cautions about how far that analogy goes in the Due Process analysis for supervised release proceedings:
Barker v. Wingo, 407 U.S. 514, 530 (1972), held that analysis under the Speedy Trial clause requires balancing the factors of length of delay, reason for the delay, the defendant’s timely protest of delay, and prejudice to the defendant. . . . Barker identified three types of actual prejudice: oppressive pre-trial incarceration, unnecessary anxiety of the accused, and impairment of the accused’s ability to mount a defense. 407 U.S. at 532. The longer the delay, the less the showing of prejudice required, until an extremely lengthy delay attributable to government negligence creates a ‘strong presumption that [the defendant] suffered prejudice,’ which the government has the burden to rebut. Mendoza, 2008 WL 1970339, at *5. We hasten to say that a reasonable time for proceeding to a full-scale criminal trial is not the same as a reasonable time for revocation proceedings, and therefore Speedy Trial Clause authority should not be applied in revocation proceedings as if it were directly controlling.

How to Use: Probation and AUSAs have been known to deliberately stall getting supervised release defendants back before the district court, as a way to guarantee custodial time regardless of the outcome of the Form 12 sentencing hearing. (What judge would ever undercut a custodial sentence that has already been served in transit?) Santana encourages this shoddy practice.

We should start building a prejudice record with Apprendi “sentencing memos” explaining the need for a below-guideline sentence while the client is waiting to be transported. Maybe this could be styled as a “Due Process Demand for Speedy Prosecution?” Maybe served on the U.S. Marshal as well? These motions would put everyone on notice, converting the feds’ “negligent” delay to “deliberate” delay. (Remember Barker’s “reason for delay” factor above . . . .)

For Further Reading: The best defense analysis of supervised release is a pair of very thoughtful articles written by AFPD Douglas Morris in The Champion, available here.

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


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Friday, May 30, 2008

U.S. v. Marler, No. 07-30181 (5-29-08). Defendant escaped from state custody, and six days later was arrested for conspiring to commit a robbery. He got 2 years state for the escape and 30 years state for the conspiracy. The feds then prosecuted him for being a felon in possession, and he gets a guideline adjustment because he was on escape status. His criminal history gave him points both for escape and for the robbery. Defendant argued that the escape merged into the robbery for criminal history purposes and should not be counted separately. The district court rejected the argument. The 9th (Tashima joined by Kleinfeld and Tallman) affirmed. The 9th did not buy the "related" theory, and the continuing nature of escape did not merge or become the robbery. Two distinct offenses, and the points get racked up.

U.S. v. Giberson, No. 07-10100 (5-30-08). Scrolling for fake identification files in a computer being searched pursuant to a warrant, the police could note and print what appeared to be child pornography. During an auto stop, it was discovered that the defendant had outstanding warrants and carried fake identifications. The latter led to a search warrant for his apartment, and for means of producing such identifications. Hence, the computer is the corner just called out to the police: "search me." They did, and in scrolling past files, porn pictures came up. The 9th held this was not outside the warrant, and the police could take a look while searching for the identifications. The 9th did vacate the sentence because the sentence for receipt and possession of child porn was multiplicitous.

U.S. v. Hinkson, No. 05-30303 (5-30-08). In an appeal from convictions for solicitation of murder of federal officers, the 9th (W. Fletcher joined by Hug) reverses and orders a new trial. The government used as a key witness the person the defendant allegedly solicited for the murders. It turns out that the witness was a liar and forger. The witness said he was a Korean war veteran, and other fabrications, when he was not. The 9th said this fabrication made his testimony suspect, and that the denial of a new trial motion was an abuse of discretion. In dissent, McKeown argues that the district court weighed and balanced the evidence, and his decision to deny the trial should be affirmed, although she would go so far as to allow a remand for further fact-finding as to when the government knew of the fabrications.

Wednesday, May 28, 2008

U.S. v. Fernandez, No. 06-50595 ( 5-27-08). Will an alias a day keep the wiretap away? "No," says the 9th. Here, the government got a wiretap on the defendant under one name. He then switched to a different name. The government recognized him as the same person, and in subsequent wiretap applications, used both names. The 9th (O'Scannlain joined by Goodwin and W. Fletcher) held that the government acted in good faith, and that the wiretap was proper. Any other holding would frustrate government investigation by prodding the drug suspects to keep switching names. What's in a name, anyway? The 9th also held that the guns found at his home had a connection to the far-reaching drug conspiracy.

U.S. v. Santana, No. 07-50190 (5-27-08). Defendant had a SR detainer awaiting him while in state custody. His state release day came and went, and he stayed in state custody for some time before he appeared in the district where the petition to revoke had been filed. It was 121 days, or four months. The district court expressed concern with the delay but found no prejudice. The 9th (Gibson joined by O'Scannlain and Graber) affirmed, holding that a motion for relief under due process required unreasonable delay and prejudice, and none was put forward here. Although no prejudice was required in Mendoza, with an eight-year delay between indictment and arrest, that differed in extent between four months and eight years, and there was a distinction between speedy trial rights for trial and for supervised release. The latter requires, at least within the four month range, prejudice. As for the argument that Apprendi requires proof in SR proceedings, the 9th shrugged and said "sorry" because supervised release is not governed by the Sixth Amendment right for jury.

Monday, May 26, 2008

Medellin: a useful case for reining in executive over-reaching?

Finding something positive in the Medellin decision is a challenge: the Supreme Court rejected a state death row prisoner’s claim under the Vienna Convention because the consulate-notification treaty provisions are non-self-executing, so state procedural default rules governed, despite the judgment of the International Court of Justice that the case should have been reviewed to determine whether the violation was prejudicial regardless of procedural default. But part III of the opinion includes some strong language rejecting Executive Branch law-making that seems to run counter to expansion of Executive power through administrative rule-making and presidential signing statements.

In 2004, the International Court of Justice in the Hague found in the Avena case that 51 aliens on American death rows had not been advised of their rights to contact their consulates after arrest, as required by the Vienna Convention. In Sanchez-Llamas, a case brought by a non-Avena prisoner, the Supreme Court held that normal state default rules applied to a Vienna Convention claim by an Oregon prisoner regardless of Avena. Then the President, in a somewhat unenthusiastic effort to comply with international obligations, issued a Memorandum to the Attorney General stating that the United States would comply with the International Court of Justice’s Avena decision “by having State courts give effect to its decision in accordance with the general principles of comity.”

With the Presidential Memorandum in hand, Mr. Medellin, a named prisoner in Avena, went back to the Texas post-conviction court, asserting that the use of his post-arrest statements violated the Vienna Convention. The Texas court said the claim was defaulted in his successive petition because neither the Presidential Memorandum nor the Avena decision displaced state law on procedural defaults. This put the federal government in a tight spot: the States are trying to kill the Avena prisoners; the prisoners are trying to avoid being killed by invoking federal treaties; and the federal government wants the States to kill the prisoners but does not want to look like it is ignoring the treaty approved by Congress and signed by the President.

The Solicitor General’s amicus brief presented the federal argument in two parts. First, he argued that the Court should defer to the Executive Branch’s evaluation that the Vienna Convention was not self-executing (the treaty needed further legislative action to allow an individual to enforce its provisions). Second, the Solicitor General argued that the Presidential Memorandum had the force of law, requiring the States to reevaluate the prisoners’ Vienna Convention claims on the merits.

The first part of Chief Justice Roberts’ opinion is predictable: after a quasi-fascinating exploration of when treaty obligations are “self-executing” (the treaty has automatic domestic effect as federal law upon ratification) or “non-self-executing” (domestic effect of the international obligation depends upon further implementing congressional action), the Court determined that the State’s default rules govern. In doing so, the majority applied the rules of statutory construction, looking to the natural meaning of the words and the treaty’s context. The Solicitor General’s position was noted in passing, acknowledging the "great weight" given to the Executive Branch’s determination that the treaty is non-self-executing. Justice Breyer, joined by Justices Ginsburg and Souter, construed the Vienna Convention to be self-executing based on factors gleaned from precedent in construing treaties. Justice Stevens concurred with the suggestion – foreshadowing his Baze repudiation of the death penalty – that the State commute the sentence to ameliorate the international awkwardness of the ruling.

Finally we get to the potentially useful part. In the part III of Chief Justice Roberts’ opinion, the Court firmly and decisively rejected the Solicitor General’s argument regarding the Presidential Memorandum. In deferring to the State’s default rules and the earlier Sanchez-Llamas opinion, the Court used some pretty strong language on the limitations of Executive power.
• The Court cited to the Hamdan case on Guantánamo prisoners for the “fundamental constitutional principal” that Congress makes laws and the President executes them;
• The Court found that the characteristic of self-executing or non-self-executing exists at the time of ratification and cannot be changed by subsequent Presidential action;
• The Court cited James Madison for the proposition that, under the system of checks and balances, “[t]he magistrate in whom the whole executive power resides cannot of himself make a law.”
The Court then found that, under the Youngstown Steel analysis for authorized Executive action, there was neither an invitation in congressional silence for the Executive to fill a gap nor authority in the President’s separate foreign affairs authority to federally trump the State’s default rule.

Part III of the opinion, while protective of the States, is also a distinct limitation on the Executive power asserted by the Solicitor General. The Presidential Memorandum seems to provide a direct analog to presidential signing statements as well as some instances of Executive construction of penal statutes under administrative law. For example, the Bureau of Prisons’ belated construction of the federal good time credit statute (12.8% of sentence imposed) could not survive an analysis that required the penal statute to mean what it said upon enactment or, at the latest, once construed by the Sentencing Commission (15% of sentence imposed)(as blogged here). Medellin’s utility in addressing presidential signing statements is ironic because Justice Alito, a member of the majority, was an early architect of the device to expand Executive power (as discussed here).

The respect for the text as written by Congress and the clear statement regarding the absence of Executive law-making authority may be useful in litigation where the Executive Branch attempts to expand the meaning of statutes beyond their plain meaning. We may be able to use Medellin in conjunction with the approach to the rules of statutory construction discussed here after the Watson case. As is so often the case, Federal Defenders must look for the gems among the dross.

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

Case o' The Week: How Much Hurt from Condo Convert? Crandall

We cheat this week and reach back a bit to discuss the very interesting decision in United States v. Crandall, __ F.3d. __ , 2008 WL 2025071 (9th Cir. May 13, 2008), decision available here. While Crandall is a "condo conversion" case, it is destined to become one of the Ninth's leading cases for the tsunami of federal mortgage fraud prosecutions on the horizon.

Decision by visiting Alaska District Judge Holland.

Facts: Crandall and cohorts conspired in condo conversions. Id. at *1. The scheme was to concoct fraudulent “stock cooperatives” to hold apartments, exploit a regulatory loophole, and avoid lengthy condo conversion requirements. Id. The feds charged mail, wire, and “honest services” fraud. Id. At trial, the defense unsuccessfully sought a mens rea instruction that required “knowing and conscious” engagement in “criminal wrongdoing.” Id. at *3. The defendants were convicted.

They were sentenced using loss amounts based on USSG § 2B1.1, comment. n. 2(F)(v)(III) – a rule for “regulatory scheme” frauds that permits no offset for “the value of those items or services.”

Issue(s): 1. Mens Rea: “Defendants argue that their convictions must be reversed because the district court erred in declining to give their proposed ‘intent to defraud’ instructions.” Id. at *3.

2. Sentencing Loss Amounts: “Defendants argue that their sentences must be vacated because the district court erred in relying on . . . 2(F)(v)(III) to calculate the loss caused by the fraud.” Id.

Held: 1. Mens Rea: “Defendants’ proposed ‘intent to defraud’ jury instruction was not supported by law. Arthur Anderson [an obstruction case upon which the defense had relied] did not involve either the mail or wire fraud statute and there is no indication that the Court intended its holding as to the mens rea requirement for obstruction of justice to extend to other federal statutes.” Id. at *3.

2. Sentencing Loss Amounts: “The district court erred in relying on Application Note 2(F)(v)(III) to calculate loss.” Id. at *4. “[T]he use of [this rule] was not a realistic, economic approach to calculating the loss caused by the fraud.” Id. (emphasis added).

Of Note: Crandall will be a key case in the wave of impending mortgage fraud prosecutions. Its mens rea holding, unfortunately, isn’t great. The Court emphasizes that “‘[T]he ‘intent to defraud’ instruction that was given adequately covered the defense theory of lack of intent.” Id. at *3 & n.4. That model instruction states, “An intent to defraud is an intent to deceive or cheat.” Id. The difference between the Ninth’s model instruction, and the proposed defense instruction, was the (rejected) requirement that the defendant “knowingly and consciously engaged in criminal wrongdoing.” This mens rea holding will haunt future mortgage fraud prosecutions.

Crandall also bears out our cynical ‘06 prediction that the feds would abuse the “honest services” fraud statute by broadly charging non-government employees with that offense. See COTW blog here, discussing United States v. Williams, 441 F.3d 716 (9th Cir. 2006).

How to Use: Crandall redeems its mens rea misstep with a valuable discussion of loss amount calculations for sentencing. First, the decision rejects the district court’s refusal to off-set the value of the condos: a critical holding where, for example, foreclosure sales can recoup much of the fraud “loss.”

Second, the decision correctly emphasizes a “realistic, economic approach” to loss calculations: again, critical to shaving offense levels off of economic fraud cases.
Finally, the case suggests several good theories for calculating loss amounts in real estate fraud cases:

i) a “fair market appraisal” to determine “actual loss” to the victim;

ii) a “cost of repair” theory, using the price needed to get the apartments converted to condos, and;

iii) a “gain” theory – what the defendants gained by the sale of the condos, less what they paid for the apartments.
Id. at *6.

Worry, though, about footnote 8: it appears to limit loss evaluation to the time of the fraud, instead of permitting the offset of subsequent gains (like a rising real estate market). Id. at *6.

For Further Reading:
“Mortgage fraud” is the prosecution du jour in the ND Cal – and many other federal districts as well. Here’s a good website that collects cases and sentences on these prosecutions.

For the FBI’s spin on these cases (and a very useful overview) visit the Bureau's webpage here.

Map above from

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


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Wednesday, May 21, 2008

U.S. v. Dallman, No. 05-30349 (5-19-08). This is a relevant conduct case. The defendant came across the Canadian-US border with a duffel bags of marijuana tied together, and with two other co-defendants also with duffel bags. The border patrol spotted the defendant, and he got tangled up in the bags and was arrested, as were his two companions. For relevant conduct purposes, all the marijuana brought by all defendants were lumped together (three bags full). The court considered it a joint undertaking. The defendant appealed, and the 9th (Gould joined by Canby and Bea) agreed. The determination by the court that all three were acting in concert was not erroneous. The district court, however, committed error in giving the guidelines a presumption of reasonableness. The 9th, under plain error review, held that the defendant's substantive rights were not affected because of the court's reasoning of why it gave the sentence it did, and the fact that the court declined to give an aberrant behavior departure, and did give a minor role adjustment.

U.S. v. Vasquez-Landaver, No. 07-50226 (5-21-08). This is the latest pronouncement by the 9th on duress defenses. It arises in the context of a 1326 prosecution. The defendant gave pretrial notice that he was going to mount a duress defense, and would testify that he left El Salvador because the police had it in for him. He was the subject of extortion by a particular officer, who was then arrested and convicted for the threats. The officer was killed in prison and his comrades vowed to get defendant. The defendant then came to the United States via a smuggler because he feared for his life in any country but America. The court pretrial granted the government's motion to preclude an expert on El Salvador, and refused to give an instruction. In a subsequent pretrial ruling, the court precluded the defendant from even testifying about duress as irrelevant. He was convicted and sentenced to 90 months (the plea would have been to 48). On appeal, the 9th (Ikuta joined by Wardlaw and Gould) affirmed the conviction and sentence. The 9th stressed that duress requires a threat, a well-grounded belief it would be carried out, and a lack of reasonable opportunity to escape. Here, the defendant had opportunities to seek escape aside from coming to the U.S. (where he had a lengthy record), and the threats were not well grounded. The 9th held that a prima facie case was not made. U.S. v. Moreno, 102 F.3d 994 (9th Cir. 1996). As for the sentence, the 9th held it to be reasonable. The court was aware of the 3553 factors, and did not need to go through each one, and the 9th found no vindicativeness from the court because the defendnat went to trial (the defendant even got acceptance).

Sunday, May 18, 2008

Case o' The Week: Amazing Grace Restores Discovery Powers to District Courts

The Ninth's en banc decision in W.R. Grace is the most important criminal decision to be issued in -- a week. See United States v. W.R. Grace, __ F.3d __, 2008 WL 2052204 (9th Cir. May 15, 2008) (en banc), decision available here. Coming hard on the heels of the equally excellent Chapman decision, W.R. Grace overrules the Ninth Circuit's old Hicks opinion and affirms a district court's broad discretion to create -- and to enforce -- case management and discovery orders.

Players: Decision by Judge Fisher; zinger of a concurrence by Judge Hawkins.

Facts: Mining company W.R. Grace and its officers were charged criminally for illegally disposing asbestos in Montana. Id. at *1. To handle the huge numbers of witnesses, after a case management conference the district court entered an order with discovery deadlines. The government blew the deadlines – natch. Id. at *2. The court then limited the government’s witness list for trial to what had been disclosed to date. Id. at *2. The government took an interlocutory appeal. A three-judge panel reversed the limitation order under Hicks, and the case went en banc. Id. at *3.

Issue(s): “[D]id the district court in this case have the authority to order pretrial disclosure by the government of its final list of witnesses and evidentiary documents and to exclude witnesses and evidence not timely disclosed in compliance with such orders?” Id. at *1.

Held: “[W] hold that the district court did have the authority to issue and enforce its pretrial orders compelling the government to disclose its witness list and did not abuse its discretion in doing so. We therefore also overrule ... Hicks, ... to the extent that it purported to deny the district court such authority.” Id.

Of Note: For most practitioners, the new discovery rule of W.R. Grace will have the greatest impact. Another important issue in the case, however, is procedure necessary for the government to seek a § 3731 interlocutory appeal.

Traditionally, the Ninth has required the government to elaborate on its assertion that an interlocutory appeal relates to evidence that is substantial proof of material issues, and that the appeal isn’t pursued for to delay. See, e.g., United States v. Loud Hawk, 628 F.3d 1139 (9th Cir. 1979) (en banc). In W.R. Grace, the Ninth abandoned the Loud Hawk rule and will find jurisdiction to consider the government’s interlocutory appeal on a perfunctory “certification” from the U.S. Attorney. Id. at *4.

This new rule is troubling, particularly given the slow pace of the Ninth’s decisions and the fact that our clients often remain in custody while the government takes an interlocutory appeal and seeks en banc review. Judges Hawkins, Pregerson and Wardlaw get this, and dissent from the § 3731 holding in a particularly forceful, persuasive and lengthy analysis. (Check-out id. at *21 n. 9, citing John McKay, Train Wreck at the Justice Department: An Eyewitness Account, 31 Seattle U.L. Rev. 265 (2008)) .

How to Use: Chapman (blog here) and W.R. Grace – decided a week apart – have done more for the effective defense of complex criminal cases than any other Ninth decision in the last several years.

Recall that Chapman upheld the sanction of dismissal of an indictment with prejudice, for the AUSA’s “reckless disregard” of his constitutional discovery obligations. 2008 WL 1946744 (9th Cir. May 6, 2008). In W.R. Grace, the Ninth finally restores power to the district courts to manage their own docket and avoid being gamed by the government.

Marvel at the remarkable case management order that was upheld in W.R. Grace: a finalized government witness list due a year before trial! Granted, the government in this order retained the right to amend its list for rebuttal witnesses, but nonetheless, W.R. Grace represents a sea change in the district court’s ability to force the government to not hide the evidentiary ball.

In any
case destined for trial, a very early discovery motion using Chapman and W.R. Grace is in order – along with a request for an early case management conference and (now enforceable) discovery order.

[An important aside: the Ninth expressly doesn’t reach the issue of whether defense witnesses are subject to the same rules. See id. at *7 n. 7.]

For Further Reading: Remember the Ninth's horrible Fort decision, where a bizarre reading of Rule 16 limited disclosure of state police reports in a federal gang case? See 478 F.3d 1099 (Mar. 8, 2007) (blog available here). In Fort, District Judge Alsup (right) had made a number of highly critical findings about the discovery conduct of the AUSAs. See id. at 1108 & n.10.

What Fort denied, Grace now returns – Judge Alsup and his district court colleagues suddenly find themselves armed with extraordinarily powerful tools to respond to the government’s attempts to keep the defense “in the dark.” To quote Martha Stewart, “it’s a good thing.”

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


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Friday, May 16, 2008

U.S. v. Perez, No. 07-10289 (5-16-08). The defendant was on SR and was drug tested. It was the second test in as many days. This test was "positive" for cocaine. Defendant protested vigorously. Watched while she gave the sample, the sample, when tested, registered "diluted". Despite some questions about accuracy of the test, procedures, and dilution, the court refused to let counsel cross examine the lab tech. The court found defendant guilty of drug use. The 9th (Bea joined by Berzon and Gibson) reversed. The 9th held that the test results here were shown to be unreliable given the observing of the defendant while providing the sample, and questions as to the accuracy, and so cross examination of the lab tech was needed. Denial of that right was error. She needed the chance to contest the results. The government tried to argue that the reputation of the national lab for probationer drug testing and the expense (it was in Virginia and the defendant in Hawaii) did not require the lab tech to be in person. Yet, as the 9th pointed out, the lab itself had raised questions about the sample given the unexplained "dilution." The 9th wondered why the government did not provide a video feed, or arrange for a depo in Virginia, or even a phone cross-exam. Moreover, the district court erred in disbelieving the defendant solely because of past offenses or drug use. The focus has to be on the present violation, and not what had happened in the past. The 9th keeps stressing that this is an unusual case because the test result on its face was unreliable. Still, it establishes again that proof is required for a violation and defendant has a right to contest it.

Congratulations to AFPD Matt Winter and FPD Peter Wolf of the Hawaii FPD office.
U.S. v. Crandall, No. 06-50592 (5-13-08). The convictions for fraud were affirmed in this instance real estate scheme of fraudulent converting apartments to condos. The 9th though (Holland joined by Farris and Smith) vacated the sentence because the guidelines for loss were misapplied. The scheme was to jump through the hoops in converting to condos by backdating the apartment building as a stock-cooperative. Straw purchasers and fraudulent backdating eventually led to the conviction. But how to assess loss? The 9th discussed various options, from intended loss, to actual loss, and couldn't come up with any one way because all loss measurements had problems (after all, the purchasers still had the apartments to live in or rent out. The value was high. The 9th ended up by stating that it wasn't readily apparent how the district court should value loss, but that it couldn't use a straight "loss of goods" in this case. The issue of loss in real estate transactions will be bedeviling courts for some time given the current economic conditions.

U.S. v. W.R. Grace et al., No. 06-30192 (5-15-08) (en banc). Say "Grace" next time to file a motion to compel disclosure of discovery. In an en banc decision, the 9th (Fisher) upheld a district court's discretion, pursuant to Fed. R. Crim. P. 2 and 16, and its inherent authority, to order disclosure of the government's witness list and to hold the government to it. The court can do so to allow for orderly trial. The 9th therefore joins other circuits that have so held. The 9th also spent a lot of time discussing whether the governement could appeal the district court's order interlocutorily by only citing the barest of justifications ("not for delay" and "substantial proof" is material) under 3731. The 9th decides that following the sparse language, so long as it is certified by the US Atty is good enough. Concurring in judgment, Hawkins, Pregerson and Wardlaw would require more than the government's "say so."

Monday, May 12, 2008

U.S. v. Caruto, No. 07-50041 (5-12-08). The Supremes in Doyle found a due process violation if the prosecutor commented on the defendant's silence. The question here is whether the prosecutor could argue omissions in defendant's post-arrest statement before invoking her Miranda rights. The 9th (Wilken, D.J., joined by Graber and Berzon) held that the prosecutor could not. The defendant was arrested coming cross the border with cocaine in the gas tank. She at first waived her Miranda rights and made a statement that she had lent her car, and had just gotten it back, and was going to drive it to L.A. After seven minutes or so, she then invoked her Miranda rights. At trial, the agent who took the post-arrest statement acknowledged changes in his notes and cross-outs. The defendant testified and was crossed on inconsistencies. There were also corroborating witnesses to her version. In closing, the prosecutor hammered on omissions in her post-arrest statement, and the inconsistencies with her trial testimony, implicitly commenting on her invocation of silence. This was a due process violation. It was not harmless given the focus on her credibility. The 9th's holding is an extension of Doyle and finds support in precedent. A very good case for buttressing Miranda and Doyle.

Woods v. Carey, No. 05-55302 (5-12-08). The petitioner had a pending petition when he filed, pro se, another petition raising more issues. The court treated this as a successor petition, when the court should have treated it as a motion to amend the pending petition.

Miller v. Blackletter, No. 06-36090 (5-12-08). The 9th (O'Scannlain joined by Graber and Callahan) affirm the denial of a petition asserting that petitioner's right to counsel of choice was denied. The petitioner had committed a number of robberies, given a statement, and was looking at a lot of time. On the day of trial, he asked trial court to continue trial so that he could hire another lawyer. His father was willing to put up the money. The court inquired into the relationship between petitioner and appointed counsel, reviewed motions that counsel filed, and when faced with a 30-day continuance, denied the motion. The 9th here held that the state court did not abuse its discretion in balancing the right to counsel against concerns of fairness and scheduling as set forth by the Supremes in Gonzalez-Lopez.

Sunday, May 11, 2008

Case o' The Week: It Pays to Discover, Chapman

Can an AUSA's reckless disregard for his or her constitutional discovery obligations serve as a basis for a dismissal of an indictment -- with prejudice? Yep, after a great discovery decision last week by Judge Kim Wardlaw (left). United States v. Chapman __ F.3d __, 2008 WL 1946744 (9th Cir. May 6, 2008), decision available here.

Decision by Judge Kim Wardlaw; joined by Judges Hawkins and O’Scannlain.

Facts: Chapman was prosecuted for running a “box job;” a stock-fraud scheme involving shell corporations and dummy directors. Id. at *1. Although in ‘04 the government promised to disclose Brady, Giglio, and Jencks information prior to trial, in ‘06 – the day before trial – it suddenly revealed for the first time it would call its case agent for whom no discovery had been disclosed. Id. As the trial progressed, priors of two prosecution witnesses were disclosed for the first time on direct. Id. When this happened a third time during trial, the government disclosed (for the first time) over 650 pages of rap sheets, plea agreements, and cooperation agreements. Id. at *3. A frustrated district judge declared a mistrial, and after briefing on the discovery violations dismissed the indictment. Id.

Issue(s): “The district court dismissed an indictment . . . after the prosecution admitted that it failed to meet its obligations to disclose over 650 pages of documents to the defense. We must decide whether the government’s appeal of the dismissal is precluded by the Double Jeopardy Clause . . . [and] whether the dismissal was proper.” Id. at *1.

Held: 1. Double Jeopardy: “[W]e hold that the ‘manifest necessity’ exception [to the Double Jeopardy Clause] applies to this case . . . .” Id. at *5.“We conclude that the Double Jeopardy Clause does not bar the government’s appeal under the circumstances presented here . . . .” Id. at *1.

2. Discovery Sanction: “[W]e affirm as to . . . the dismissal of the indictment . . . .” Id. at *1.

Of Note: Chapman stands out for the Ninth’s endorsement of a severe discovery sanction, but the case is also of interest for its discussion of the “manifest necessity” concept for mistrials and Double Jeopardy. In essence, if there is a mistrial after the jury is empaneled but before a verdict, a defendant can be tried again for the same crime if 1) “he consents to the dismissal,” or 2) “if the district court determines that the dismissal was required by ‘manifest necessity.’” Id. at *5. The classic example of “manifest necessity” is a deadlocked jury – but as shown here, the doctrine can defeat a Double Jeopardy claim when there is a mistrial because of government misconduct. Id. at *6. It is a complicated concept: for example, evidence that the government sought a mistrial to gain tactical advantage earns the “strictest scrutiny” on appeal, instead of a review for “abuse of discretion.” Id. Chapman is worth a spot in a trial binder to remind of Double Jeopardy ramifications of a mistrial, and how to make the appellate record when a mistrial arises.

How to Use: The Very Important Rule of Chapman is this:

A district court can exercise its supervisory powers and dismiss an indictment with prejudice even when the AUSA has committed no intentional discovery violation, if there is “reckless disregard for the prosecution’s constitutional obligations.” Id. at *9.

This is heady stuff – particularly because one of the AUSA’s major sins here was his failure to keep a discovery log. It is rare to catch a prosecutor in a deliberate discovery violation, but sloppy, “inadvertent” failures to disclose are as commonplace as government discovery logs are rare. Particularly in complex, large-discovery cases – like wiretaps, big fraud conspiracies, and SEC-related prosecutions – Chapman finally puts some teeth in criminal discovery rules. In these big cases, the Chapman opinion should figure prominently in initial discovery letters and defense discovery motions.

For Further Reading: The federal bench has been buzzing about the recent Qualcomm civil discovery sanctions: over $9 million in fines and a half-dozen attorneys referred to the California State Bar for disciplinary action. See Qualcomm v. Broadcom, 05 CV 1958-RMB (BLM), Ord. (S.D. Ca. Jan. 7. 2008), see blog discussing Qualcomm discovery sanctions here.

By contrast, what happened to the AUSA(s) after their "flagrant" discovery violations in Chapman? Actually, who were the AUSAs in Chapman? A liberal latté on me, for anyone who finds their names in the opinion. (Wasn’t it just a week ago that the Ninth lectured us on the “public’s right to know” the names of wrong-doers in published opinions? See United States v. Stoterau, 2008 WL 1868997 (9th Cir. Apr. 29, 2008)).

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


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Friday, May 09, 2008

U.S. v. Mendoza, No. 06-50447 (5-8-08). This is a new opinion relating to a dismissal for a Sixth Amendment speedy trial violation (eight year delay between the indictment and arrest). The original opinion was withdrawn and this one issued. The 9th (T. Nelson joined by Paez and a concurrence by Bybee) find that the defendant was living openly in the Philippines, and that the government had plenty of information and leads to inform him that he was facing charges. The defendant did not know that he was facing these tax evasion charges. Under Barker, his constitutional speedy trial rights were violated. Bybee concurs because of precedent, but he is troubled that a defendant can supposedly run but since he didn't hide, assert speedy trial.

U.S. v. Pete, No. 06-10390 (5-8-08). In an appeal alleging a Speedy Trial violation (the 9th has been deciding a number of them recently it seems), the 9th concludes that the time between a motion to recall a mandate through the Supremes' denial of cert is all excludable. Here, the defendant had indicated that he intended to file cert in his motion to recall the mandate, and so he is taken at his word until he disclaims his intent.

Tuesday, May 06, 2008

Brown v. Farwell, No. 07-15592 (5-5-08). "The prosecutor's fallacy" occurs when the prosecutor confuses source probability of DNA with random match probability. That is, a 1 in 10,000 probability of a random DNA match is NOT equated to a 1 in 10,000 chance that the sample did not come from the defendant. Petitioner was convicted of sexual assault on a child. There was conflicting circumstantial evidence, and real questions of eyewitness identification. The state's expert gave testimony that stated that petitioner's guilt was 99.99967%, and downplayed the matching of petitioner's four brothers. The state admitted error in prior proceedings but tried to backtrack at argument (not smart). The 9th affirmed the district court's granting of the petition (Wardlaw joined by Hawkins). The 9th focused on the Jackson standard of a rational jury versus a reasonable jury, and that an analysis was lacking of the elements and evidence in the state supreme's court's decision. O'Scannlain dissented, arguing that the state supreme court's application of Jackson and federal law was reasonable, and that the evidence had to be viewed in the light most favorable to the state, and here there was circumstantial evidence, and some weight should be given to DNA.

Congratulations to Paul Turner and Franny Forsman of the Nevada FPD Office (Las Vegas).

U.S. v. Chapman, No. 06-10316 (5-6-08). Three weeks into trial, the prosecutor turned over 650 pages of Brady and Giglio and other discovery. This was in a complex fraud trial, with goverment witnesses who had shady or questionable pasts or motives, and the government had been ordered to turn over the discovery far in advance. They did not. The court railed against the prosecutor, and the defendants moved for mistrial. The court granted the motion, and dismissed the indictment. The government appealed. The 9th (Wardlaw joined by Hawkins AND O'Scannlain) held that the government could appeal and the appeal was not barred by double jeopardy. The 9th then found that the court did not abuse its discretion in dismissing the indictment. It is worth quoting the conclusion in full (p. 4964):
The district court did not abuse its discretion in dismissing the indictment. The government egregiously failed to meet its constitutional obligations under Brady and Giglio. It failed to even make inquiry as to conviction records, plea bargains, and other discoverable materials concerning key witnesses until after trial began. It repeatedly misrepresented to the district court that all such documents had been disclosed prior to trial. The government did not admit to the court that it failed to disclose Brady/Giglio material until after many key witnesses had been testified and been released. Even
then, it failed to turn over 650 documents until the day the disrict court
declared a mistrial and submitted those documents to the court only after the indictment had been dismissed. This is prosecutorial misconduct in its highest form; conduct in flagrant disregard to the United States Constitution; and conduct which should be deterred by the strongest sanction available. Under these facts, the district court did not abuse its discretion in characterizing these actions as flagrant prosecutorial misconduct justifying dismissal. Nor did it abuse its discretion in determining that a retrial -- the only lesser remedy ever proposed by the government -- would substantially prejudice defendants.

Friday, May 02, 2008

Case o' The Week: Bad facts make bad law, Stoterau and Conditions of Supervised Release for Sex Crimes

In a very disappointing decision, Judge Ikuta upholds a laundry-list of supervised release conditions for child porn cases; and, specifically, polygraphs and Abel screening. See United States v. Stoterau, __ F.3d __, 2008 WL 1868997 (9th Cir. Apr. 29, 2008), decision available here. This is a particularly troubling tolerance of the Abel hocus-pocus, which one court has described as having factors that could have been cooked up at Hogwarts.

Hard-fought appeal by CD Cal AFPDs Jonathan Libby and Kathryn Young.

Facts: 26-year-old Stoterau convinced 14-year old John Doe into posing for sexually-explicit pictures, which were then uploaded to a web-site. Id. at *1. Customers visiting this site would contact Stoterau, and Stoterau would drive the boy to their locations. Id. Doe would have sex with the customers for money, and Stoterau would get a cut. Id.

Stoterau was charged with and pleaded guilty to transporting child porn. Id. He raised many challenges to both his sentence and conditions of supervised release.

Issue(s): (Among many other issues): “Condition 12 [of supervised release] . . . specifies that Stoterau must submit to polygraph and Abel testing.” Id. at *8. (“Abel testing is a diagnostic exam for sex offenders that studies ‘visual reaction time.’”) Id. at *9.

Held: 1. Regarding polygraphs: “[T]he polygraph prong of Condition 12 does not infringe on Stoterau’s Fifth Amendment rights because Stoterau will retain these rights during his polygraph exams . . . if Stoterau receives a question during his polygraph exam which calls for him to provide an answer that would incriminate him in a future criminal proceeding, Stoterau retains the right to invoke the Fifth Amendment privilege and remain silent.” Id. at *8. “Stoterau is not entitled to receive Miranda warnings before undergoing polygraph examination pursuant to Condition 12 of his supervised release.” Id. at *9.

2. Regarding Abel Screening: “[W]e conclude that Abel testing does not implicate a particularly significant liberty interest, and thus does not require the district court to make the heightened findings required by Williams and Weber [the “antipsychotic drugs” and “penile plethysmograph” decisions.] Id. at *10.

Of Note: Judge Ikuta’s Stoterau decision (joined by Judges Wallace and Gould) is so disappointing on so many fronts it is hard to know where to start. The decision interprets relevant conduct broadly, id. at *3, tolerates a perfunctory recital of the Section 3553 analysis by the sentencing court, id. at *4-*5, gives de facto “reasonableness” deference to an in-guideline sentence, id. at *6-*7, does not fairly grapple with the junk science known as “Abel testing,” id. at *11, allows broad distribution of the PSR despite the shrink-patient privilege, id. at *15, and refuses to use a pseudonym in the opinion to protect the defendant while he is in custody, id. at *18. The opinion is grim – but important – reading for a child-porn client weighing his options and evaluating the value of a (c)(1)(C) deal.

How to Use: Abel screening has all the scientific rigor of phrenology. The Abel test is based on a trick: the person tested thinks they’re evaluating the attractiveness of projected images. “The subject is supposed to think that the paper-and-pencil test is the actual test, but the critical portion of the test calculates how long the subject gazes at the slide. It is this measure of [visual reaction time] that is used to determine the subject’s sexual interest in the various categories of adults and children shown in the slides.” Id. at *9.

If the subject knows the trick, though, the test doesn’t work – as recently conceded by Sharper Future in a case here in the Northern District of California. Thus, make sure every child porn client carefully reads page *9 of Stoterau, and thoroughly explain Abel screening in detail before supervision – well-informed clients cannot be effectively Abel-tested. In a sweet irony, a decision that touts “the public’s common law right of access to judicial proceedings,” id. at *17, can be used to nullify the very testing method that it tolerates on supervised release.

For Further Reading: Dr. Gene Abel has a full-service shop: for the low-low price of $250 you can get “certified” and pick from a laundry lists of handy official-sounding “clinical certifications.” See price list here. The good doc is teaching at a one-day training on May 17th in San Francisco. See plug here. Let’s go! A real scientist shouldn't mind a few members of the defense bar taking notes, right?

Here’s a great article to discuss at the San Francisco training, reporting one court’s description of the Abel test’s proprietary formulas: “For all we know, they and their components could be mathematically based, founded upon indisputable empirical research, or simply the magic of young Harry Potter's mixing potions at the Hogwarts School of Witchcraft and Wizardry.” Article available here.

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


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U.S. v. Tapia-Romero, No. 05-50121 (5-1-08). The 9th (T. Nelson joined by Beezer and Gould) hold that the "cost of imprisonment" is not a 3553 factor to be considered in sentencing. Defendant argued that cost was a factor to be considered; the court hedged, stating that it was not for an Article III to decide to save the system money. On appeal, the 9th agreed, stating that 3553 does not allow or require such consideration. Defendant had argued that the "need for rehabilitation" and "the kinds of sentences available" would permit such consideration. The 9th was unwilling, which is strange since the effect on bed space is a factor to be considered by the Sentencing Commissionn, and in terms of policy in setting Guidelines, costs of imprisonment certainly weigh in the alternates to punishment. Why then does the PSR (at least in some districts) list the costs of various forms of imprisonment. This is a disappointing decision, showing a reflexive reaction rather than more sensitive analysis of the 3553 factors, including the "catch-all."