Case o' The Week: Ask, "W.W.W.D?" (What Would Warren Do?) -- Chapman and Section 111 Offenses

As we mourn the passing of Ninth Circuit Judge Warren Ferguson (left), one of his younger colleagues (Judge Kim Wardlaw, right) continues his admirable legacy by holding the government to the full proof requirements of Section 111. See United States v. Chapman, __ F.3d __, 2008 WL 2485566 (9th Cir. June 23, 2008), decision available here.


Players: Great win by San Diego Assistant Federal Defender Steven Barth.

Facts: Chapman allegedly “cut in line” at a border checkpoint. Id. at *1. Border agents stopped him, told him to move out of line, and when he refused, tried to physically “escort” him out of line. Id. Chapman “tensed up,” and “took a rigid stance” when the agents tried to cuff him. Id. An agent struck him in the thigh with a baton. Chapman told the agent, “hit me again,” the agent did so “to no effect” – so the agent pepper sprayed him and cuffed him. Id. (Ed. note: All this for (allegedly) cutting in line?)

Chapman didn’t attempt to strike the agent or use profanity. Id. Chapman was charged with 18 USC § 111(a), “resisting and impeding” a federal officer. Id. He was convicted at a bench trial of a misdemeanor; the court denied the motion for acquittal. Id. at *2.

Issue(s): Is an “assault” “required for a § 111 conviction?” Id. at *5.

Held: “[W]e . . . hold, as suggested by the majority of our sister circuits, that convictions under this statute require at least some form of assault. Section 111(a) creates two distinct offenses, a misdemeanor and a felony, and Congress has distinguished between these two offenses using language that is only meaningful when describing assaults.” Id. at *5. “Because § 111(a) allows misdemeanor convictions only where the acts constitute simple assault, and because Chapman’s nonviolent civil disobedience did not constitute a simple assault, we reverse and vacate the judgment of conviction.” Id. at *1.

Of Note: Districts with federal parks, recreation areas, military bases and reservations see a fair share of Section 111 prosecutions. Like Section 1326 cases, this opinion illustrates that a simple crime – a Section 111 offense – can raise extraordinarily complicated legal issues.

Judge Wardlaw’s analysis wasn’t made any easier by the Section 111 statute itself, which was “inartfully drafted,” id. at *3, or authority from other circuits that was “hardly a model of clarity,” id. at *5. In a thoughtful opinion Judge Wardlaw cuts through this confusion and creates a simple rule: a misdemeanor Section111 conviction requires a simple assault – not merely resisting arrest, and not merely disobeying orders. (An assault is “either a willful attempt to inflict injury upon the person of another, or . . . a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Id. at *4.)

How to Use: The good news is, we’ve been arguing Wardlaw’s new rule for years in § 111 cases. The bad news is, Chapman deals with an old version of the statute. A new, amended version became effective January 7, 2008. See id. at *1 & n.2.

The amendment changes the penalty subsection of § 111(a), which defines what constitutes a felony offense under the statute. See “Court Security Improvement Act of 2007,” PL 110-177, 2008 HR 660 (2007). While Chapman analyzed the old statute, nothing in the amended ‘08 version seems to affect the decision’s holding that a misdemeanor § 111 offense requires simple assault.

For Further Reading: As noted above, Judge Warren Ferguson died last week, at the age of 87. He was elevated from the C.D. Cal. bench by Carter in ‘79, and took senior status in ‘86. He served in the Army, in North Africa and Italy in WWII. He lost his son, Jack, during Vietnam.

Judge Ferguson actively sought clerks who were committed to “social justice.” His opinions reflected his passion for justice: in Chase, he strongly championed the right of an indigent defendant to retain an expert. In Luong, he rejected the government’s attempt to hide behind the good faith exception to salvage a warrant lacking in probable cause. In Snellenberger, he refused to allow criminal minutes and abstracts of judgment as fodder for the “modified categorical” sentencing analysis. In his compelling Clark dissent he warned,

The Constitution cannot be interpreted according to the principle that the end justifies the means. The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Constitution to address it.

Ferguson was a great judge and a great champion for the poor, for minorities, and for the oppressed. He will be sorely missed.

Above image of Judge Warren Ferguson from Cal Law, here.

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



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U.S. v. Gonzalez, No. 07-10326 (6-19-08). This was a case of making "bale." The bale was marijuana, and the defendant, a Border Patrol agent, took one bale out of 30 when he was left to guard a pick-up. He placed the bale in his vehicle, and acted none the wiser. His actions were caught on videotape. Convicted at trial, he argued that there was no jurisidiction for the gun charge, and that there was a lack of sufficiency of the evidence. The 9th (B. Fletcher joined by Rymer and Duffy) first hold that a motion for acquittal filed after the verdict, within seven days, preserves the sufficiency challenge. The 9th found, though, that there was sufficient evidence the firearm was used in relation to the offense. There was also sufficient evidence to support a possession with intent to distribute charge. (Making phone calls to a relative with a prior drug conviction did not help). There were also no sentencing errors.

U.S. v. Chapman, No. 07-50000 (6-23-08). Standing still is not assaultive, although the government so argued. Defendant was approaching the POE in San Ysidro when a Border Patrol ordered him to stop and move to the sidewalk. He did stop, but did not move. The agent tried to escort him to the side but could not move him because the defendnat had tensed up and stood rigid. The agent then tried to arrest him for interference, but in trying to cuff him, slipped. The agent then whacked him with a baton, to which defendant said, "hit me again." The agent did. All this resulted in a misdemeanor charge of assault under 18: 111(a). There's only one problem: the act must be a simple assault for a misdemeanor. The 9th (Wardlaw joined by Thompson and Reed) held that the act of standing still may be obstruction, might be interference, but it was not simple assault. The conviction was vacated.

Congratulations to Steven Barth of the Federal Defenders of San Diego for the win.

Duncan v. Ornoski, No. 05-99010 (6-24-08). The 9th (Reinhardt joined by Gould and Paez) find IAC in a capital case on both the guilt and sentencing phases. The trial lawyers failed to test the blood sample in the room at the site of the murder. The sample was neither the victim's nor the petitioner's, which supported his contention that he was the accomplice but not the shooter. The defense at trial was that someone else had been involved in the murder and it was not petitioner. The 9th found the error harmless for guilt because of felony murder, but prejudicial for the sentencing phase, where the fact of being a trigger-man was critical.

U.S. v. Tsui, No. 07-30467 (6-25-08). The 9th affirms the Parole Commission's imposition of a Supervised Release tail on a sentence in a prisoner transfer from South Korea. The defendant received a sentence in South Korea, and used the prisoner transfer treaty to serve his time here. With good time, and guidelines, he was facing less than 60 months, but the Parole Commission's decision to "tail" the sentence to 60 months was not unreasonable.

U.S. v. Locklin, 07-50187 (6-25-08). The 9th found an Apprendi violation in a prosecution for failure to appear. Defendant faced a felon in possession charge. He fled while the jury was being picked, and was subsequently found and brought back. He was acquitted on the felon in possession charge, but convicted on a flight charge. The government failed, however, to send to the jury what the underlying charge was, because that has an impact on the length of sentence of flight. Because the government failed to prove the underlying charge, the most the defendant can be sentenced to is one year. The conviction is affirmed; the sentence is vacated and remanded.

U.S. v. Taylor, No. 06-30580 (6-26-08). The 9th affirms that Arizona's "attempted armed robbery" is a crime of violence for career offender purposes under 4B1.1. The federal courts can rely upon an Arizona intermediate court decision that equates the state's broad any step attempt statute (13:1001) with the categorical defintion of substantial step.

Brown v. Lambert, No. 04-35998 (6-27-08). The 9th (Kozinski and Berzon) affirm a petition's denial. Petitioner alleged IAC for failure by his trial counsel to present evidence related to a bipolar disorder. The trial counsel declined to have petitioner examined by a psychiatrist, who would have tetsified that lithium would have controlled mood swings. Trial counsel also failed to put on the mental health counselor from prison, and also failed to cross-examine the state's psychiatrist at sentencing. The 9th excuses this as trial strategy, because there was potentially harmful evidence that could have come out. Specifically, that the petitioner may not have been in a bipolar episode at the time of the murder; that he may have been untruthful; conduct in prison, and that lithium may not have controlled him. Counsel's decision goes to sound trial strategy. Reinhardt dissents, arguing that mental health testimony was a key here, and that trial counsel's decisions were unsound, and ineffective.

Case o' The Week: Bad Cops Make Good Law, Quon -- Fourth Amendment Privacy Interests in Text Content

Ever notice that cops behaving badly create the best defense decisions? For example, cops beat the daylights out of Rodney King, get convicted, and generate the Supreme Court's seminal case on sentencing departures. Koon v. United States, 518 U.S. 81 (1996). Prison guards terrorize inmates, are convicted, and generate the seminal decision on bail pending appeal. United States v. Garcia, 340 F.3d 1013 (9th Cir. 2003). And now, in Quon, a SWAT cop uses his work pager to send sexually-explicit texts (and lots of them), and generates the nation's leading decision on Fourth Amendment protections in digital content. Quon v. Arch Wireless, __ F.3d __, 2008 WL 2440559 (9th Cir. June 18, 2008), decision available here. Keep up the good work, Lads and Lassies in Blue.

Ribbing aside for a moment, Quon is an important and well-written decision that merits a very close read by anyone one interested in privacy issues, Fourth Amendment protections, and how those concerns play out in the new digital era.

Players: Another great decision by Judge Wardlaw, joined by Judge Pregerson and District Judge Ronald Leighton.

Facts: SWAT Cop Quon was given a pager by the City of Ontario, with an allotted number of characters. Id. at *1. He repeatedly exceeded his allotment and paid for the overages. Id. at *3. No one read the texts when this happened. Id. The cop in charge of the pager account got tired of billing Quon personally for the overages, so the Police Department got transcripts of Quon’s texts from service provider Arch Wireless. Id. at *3-*4. Turns out the texts included personal, sexually-explicit messages. Id. at *4. Quon and others to whom he texted and from whom we was texted sued Arch, the City, and police supervisors. Quon appealed (civil) Rule 59 motions from the federal district court. Id.

Issue(s): “Do users of text messaging services such as those provided by Arch Wireless have a reasonable expectation of privacy in their text messages stored on the service provider’s network?” Id. at *10.

Held: “We hold that they do.” Id. “[U]sers do have a reasonable expectation of privacy in the content of their text messages vis-a-vis the service provider.” Id. at *11.

Of Note: Quon is rich with holdings that will keep law reviews busy for years. Judge Wardlaw pragmatically analogizes a text message (and, by extension, e-mail) to snail mail. The Fourth doesn’t protect the address on an envelope, but does protect the contents of the letter within. Id. Similarly, the “address” of a digital message (the phone number or e-mail address) is not protected by the Fourth, but the content of the message is. Id.

(Aside: OK, bring on the anonymous comments questioning why this snail mail analogy is apt in Quon, but the analogy of a computer to a briefcase is not persuasive in Giberson. I'll respond and explain. Here's a hint: in Quon, Judge Wardlaw correctly focuses on the privacy interest in content. In Giberson, Judge Wallace (incorrectly, in our view) focuses on the 'storage' aspect of a computer at the expense of many other characteristics of a computer that raise privacy concerns. Keep an eye out for the Giberson en banc petition).

Note also that it isn’t only the subscriber of the pager that has a privacy interest in Quon – so do the others who texted him and who received texts from him! Id. at *12 (holding that other plaintiffs who received and sent the texts had a Fourth Amendment privacy interest).

There are, admittedly, some caveats. Here, because of some fact-specific practices Quon wasn’t on notice that his texts would be read. He thus had an expectation of privacy. On different facts that expectation may not be the same. Nonetheless, Quon will be a cornerstone case for Fourth Amendment litigation in the digital age.

How to Use: Quon’s rule is that the content of messages – phone calls, letters, e-mails or texts – are protected by the Fourth Amendment. In Quon, the content was improperly obtained from the text/pager service provider. In another case, the content may be improperly obtained by a cop’s warrantless search of an iPhone, Blackberry, P.D.A., or pager, seized during an arrest.

(We think) the Fourth Amendment prohibits warrantless searches of electronic devices recovered from a person during an arrest. The Northern District of California's own Judge Illston so held in United States v. Park, 2007 WL 1521573 (N.D. Cal. May 23, 2008) (ord.). The reasoning of Quon proves her both correct, and prescient.

Our challenge after Quon is to push the definition of Fourth Amendment “content.” E-mails and pager text messages are protected content. Subject lines in e-mails should be considered content as well, and instant messages too. IP addresses and URLs? An IP address isn’t “content,” thanks to the poorly-reasoned Forrester decision. See blog here. But, as even Forrester concedes, a URL might be. Id.

For Further Reading: Those clever digital-privacy gurus at the Electronic Frontier Foundation nailed Quon as a Big Case the minute it hit the web. For Jennifer Grannick’s very thoughtful dissection of the decision – including its many holdings and broad implications – visit her post here. As Grannick astutely opines, “Wow.”

The decision itself relies heavily on a law review article, Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1209-13 (2004). Professor Kerr has blogged the Quon decision here. As the good prof explains,

The reasoning [in Quon] is broad: It pretty clearly indicates that there is a default of a reasonable expectation of privacy in not only text messages but also e-mails. It also further cements the emerging content/non-content distinction that I have been expecting courts to grab on to for some sort of certainty in this area.

Id.

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


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Butler v. Curry, No. 07-56204 (6-9-08). Under Teague, the state argued what is old is really new, especially when it comes to Cunningham. In Cunningham, the Supremes applied Blakely to California's guideline sentencing scheme. The petitioner here received an aggravated sentence based on judicial fact-finding. The facts included vulnerability of the victim and prior conviction. The district court granted the petition because of a Cunningham violation, but the state appealed, arguing that Cunningham was a new constitutional principle. The 9th (Berzon joined by Hall and Graber) held that Cunningham was not new under Teague. It analyzed whether one of the aggravators survived the error, but in an important analysis, concluded that a defendant's probationary status did not fall within the Almendarez-Torres exception for prior convictions. Probation can be modified or terminated early, and so it cannot be construed solely from the conviction documents. The 9th looked to its 1326 precedents for analogies. A prior conviction is to be construed narrowly. The 9th remanded for fact-finding as to harmlessness of the error.

Congratulations to AFPD Davina Chen of the FPD of the Central District California (Los Angeles).

U.S. v. Becerril-Lopez, No. 05-50979 (6-12-08). Defendant attacks his 1326 conviction and sentence on various grounds. The 9th (Hall joined by Pregerson and Hawkins) affirm. Defendant argued that his deportation was both procedurally invalid and that he was prejudiced. The 9th questioned whether the procedure was faulty, although noting some broad waivers in the immigration proceeding. The 9th though found no prejudice both as to procedure, and the possibility of waiver by the Attorney General for "extreme hardship" because the hardship was general and not specifically alleged. The 9th also found no error at trial with evidence that the defendant was not under "official restraint." The evidence was such that the defendant crossed the border, and was out of sight by the time the agents located him. Finally, and most importantly, the 9th held that robbery, under Calif. Penal Code 211, is a crime of violence for 2L1.2 purposes. U.S. v. Dougherty, 920 F.2d 569 (9th Cir. 1990) held that it was not for career offender purposes, but the precedent does not control 2L1.2 because of a different definition focused on physical force. The 9th holds that it is not categorically barred because while the generic definition of robbery is narrower than the state definition, the conduct that falls outside of the categorical limitation would still involve physical force, because it would be unlawful extortion. The 9th also goes through other exceptions, such as escape, immediacy, and claim of right, but finds them all lacking.

U.S. v. Juvenile male, No. 07-50107 (6-12-08). In a per curiam decision (Berzon, Ikuta, and Singleton), the 9th remands a disposition for violations of 5033. Here, the juvenile was arrested in an alien smuggling operation, and supposedly said he was an adult. This lead to various hearings, burden shifting, and delays as the defendant struggled to prove he was a juvenile. He finally succeeded with the help of the Mexican Consulate and certified documents. Because of the delay, the timing and procedural safeguards of the juvenile act were violated in every conceivable way. The 9th remands so the district court can determine whether the violations led to the confession and whether it was harmless. Berzon concurs, and dissents. She would find that there was no need for a remand as the violation was clearly harmful, and the government did not argue for harmlessness.

U.S. v. Marks, No. 05-30218 (6-13-08). The 9th affirms convictions in a fraud case where the defendant went pro per. The 9th held that the decision was voluntary, and not coerced. The 9th also held that the seating arrangements (with the pro per defendants in a row behind the represented defendants at the counsel table) was not prejudicial, as there was no objection at the time. The stopping of defendant's opening statements and cross-examination was not a violation of his right to defend, as the court was ensuring that rules of evidence were being followed. The restitution order was also affirmed.

Belmontes v. Ayers, No. 01-99018 (6-13-08). The 9th (Reinhardt joined by Paez) hold that the petitioner suffered IAC at the sentencing stage. Counsel failed to investigate, develop or strategically present mitigation evidence, and instead relied on the argument that LWOP was in fact a harsher punishment than death. O'Scannlain dissented, arguing that for the third time the panel seeks to find relief when the Supremes twice before had reversed. He would find no IAC.

Case o' The Week: Ninth Checks Attempts to Limit Loss Amounts, Santos

Looking for cheap witticisms at the Ninth's expense, gleaned from last week's headlines? Ain't nothin' here. Y'all best be movin' on, compadre.

We instead focus on the interesting, though disappointing, decision on loss calculations from Judge Reinhardt (right). United States v. Santos, __ F.3d __, 2008 WL 2312391 (9th Cir. June 6, 2008), decision available here.

Players: Hard-fought appeal by (then) ED Cal AFPD, (now) ND Cal AFPD Ned Smock.

Facts: Santos and a co-conspirator used checks stolen from the mail as templates to produce counterfeit checks. (WL star cites not yet available). The counterfeit checks were then cashed by others. Santos pleaded guilty to various charges.

The PSR hit him with almost $300k in loss, adding both the value of the stolen checks and the value of the counterfeit checks. The district court rejected Santos’s complaint that only the value of the counterfeit checks should count and sentenced the defendant to seventy-seven months.

Issue(s): “Whether a district court may use the face value of stolen checks in estimating the intended loss of a counterfeit scheme is a matter of first impression in this circuit.” . . . “Santos argues that the district court erred in using the total face value of the stolen checks, rather than the counterfeit checks, to determine intended loss for the purposes of a sentencing enhancement under § 2B1.1(b)(1) of the United States Sentencing Guidelines (“U.S.S.G.”).”

Held: “We agree with the approach of the Third and Eleventh Circuits. Absent evidence to the contrary, the district court may reasonably infer that the participants in a counterfeiting scheme intend to take as much as they know they can. Thus, where the scheme involves using stolen checks as templates for counterfeiting, the face value of the stolen checks is ‘probative’ of the defendants’ intended loss, as it is the amount that the participants know is in the accounts from which they are drawing.” . . . .“Adopting the approach of the Eleventh Circuit in United States v. Grant, 431 F.3d 760 (11th Cir.2005), we hold that, in cases such as this, a district court may reasonably infer, absent a showing to the contrary, that the defendant intended to cause loss up to the full face value of the stolen checks. Because the district court did not clearly err in finding that Santos intended to cash counterfeit checks up to the face amount of the stolen checks, we affirm its application of a 12-level enhancement under § 2B1.1(b)(1)(G).”

Of Note: This is a new rule for the Ninth, imported from the Eleventh. Here’s the Grant rule on calculating loss, quoted favorably in Santos:

“[W]e hold when an individual possesses a stolen check, or a photocopy of a stolen check, for the purpose of counterfeiting, the district court does not clearly err when it uses the full face value of that stolen check in making a reasonable calculation of the intended loss. Although a district court cannot equate the full face value of stolen checks with intended loss as a matter of law in every case, it can still find a defendant intended to utilize the full face value of stolen checks. Where the Government presents evidence indicating the defendant intended to utilize the full face value of the checks, and the defendant fails to present countervailing evidence, a district court is especially justified in including the checks’ full face value in its intended loss calculation.”

How to Use: Santos isn’t a blank check on loss calculation (pardon the pun). Judge Reinhardt cautions that a “court may not mechanically assume that the face value of the stolen checks is the intended loss . . . . Rather, it must consider the evidence, if any, presented by the defendant tending to show that he did not intend to produce counterfeit checks up to the full face value of the stolen checks.”

Read footnote seven of Santos carefully – Judge Reinhardt gives us a number of other examples of how a defendant may not have intended to steal through counterfeiting the entire amount of stolen checks.

For Further Reading: Seems like the dust had settled on loss-calculation law, but new fraud schemes drive new rules. The Ninth recently gave us the great loss-calculation decision of United States v. Crandall, 525 F.3d 907(9th Cir. 2008), discussing loss in the real estate context.

For the party line on loss calculations (but useful nonetheless), see the Commission’s training outline here.

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

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Case o' The Week: Title III Rivera is Wide, But Not Deep

Wiretap guru Judge Betty Fletcher (left) brings us a disappointing Title III decision this week in United States v. Rivera, __ F.3d __, 2008 WL 2229944 (9th Cir. June 2, 2008), decision available here.

Though we're not big fans of the opinion, we're huge fans of the Judge: here's hoping for a very speedy recovery.

Players: Decision by Judge Betty Fletcher, joined by Judges Kleinfeld and Gould.

Facts: DEA agents in Washington investigated a Washington drug conspiracy for nineteen months, and developed a number of snitches. Id. at *1. The feds got three wiretaps, one of which was challenged in this appeal. The district court rejected Franks, necessity, and minimization challenges; appellants were convicted after plea or trial.

Issue(s): “Defendants argue that the government failed to show necessity for a wiretap on two telephones and failed to properly minimize the various wiretaps it used in its investigation of the conspiracy.” Id. at *1.

Held: 1. Franks: “[W]e conclude that the affidavit supporting the wiretap application contains a ‘full and complete statement’ as required by 18 USC § 2518(1)(c).”

2. Necessity: “While we agree with Defendants that the government could have – and perhaps should have – further utilized traditional investigative techniques before applying for the wiretap, we may not reverse simply because we might have decided not to grant the wiretap. We review the issuing court’s decision to grant the wiretap for an abuse of discretion . . . . and we conclude that the issuing court did not abuse its discretion here.” Id. at *8.

3. Minimization: “[W]e conclude that the DEA’s monitoring procedures and its training of the monitors did not fall sort of the requirements of 18 U.S.C. § 2518(5).” Id. at *11.

Of Note: Rivera offers no new rules or big principles for wiretap litigation. Instead, it is another hash mark in the spectrum of cases that will be used to gauge the legality of wiretaps. While a disappointing outcome, Rivera is an interesting read. The decision surveys the Ninth’s Title III litigation, discussing facts that have supported – or undermined – previous wiretaps.

Rivera’s author, Judge Betty Fletcher, is one of the Ninth’s (and the country’s) experts in the field: she also wrote the important decisions of Ippolito, 774 F.2d 1482 (9th Cir. 1985), and Blackmon, 273 F.3d 1204 (9th Cir. 2001). Notably, Fletcher’s colleagues on Rivera – Judges Kleinfeld and Gould – were also on the panel for the very good wiretap decision in Gonzalez, Inc., 412 F.3d 1102 (9th Cir. 2005) (authored by Judge D.W. Nelson). Interesting that a handful of judges have been so influential in wiretap jurisprudence.

How to Use: For better or worse, Rivera now becomes the first step for wiretap litigation. As noted above, the case analyzes the Ninth’s wiretap precedent (by the Judge who wrote half of the decisions in the field). Rivera is also a fairly exhaustive recap of wiretap challenges: Franks omissions as to the efficacy of traditional investigations, id. at *3-*4; physical surveillance, id. at *5, use of the grand jury, id. at *6, use of agents, trash runs, interviews, pen registers and trap-and-trace devices, id. at *6; GPS, id. at *7; and the scope of the goals central to a necessity challenge, id. at *7-*8.

Unfortunately, the case re-issues that horrible blank check from McGuire: a wiretap is “necessary” even when the main players are known, if the feds seek to learn the conspiracy’s suppliers, distributors, and other known and unknown members. Id. at *8. The only bright spot is the decision’s endorsement of financial investigation as a traditional investigation technique – a mild break from previous authority. Id. at *6.

For Further Reading: At the recent Defender’s conference in New Orleans, and at our upcoming CJA seminar, the brainy folks at the Electronic Frontier Foundation (EFF) are teaching us the terrifying ways that feds are crawling into our private lives through the use of new technologies and new authorizing statutes. See discussion here.

How about some legal ju-jitsu, in the Title III context? Why shouldn’t cell phone location tracking, e-mail subpoenas, net surveillance, triggerfish antennas, pen trap databases, and other new technologies be bundled in the “traditional investigative techniques” that undermine wiretap “necessity?” One gets a whiff of that in the brief GPS discussion in Rivera – this may be the next big step in wiretap litigation.


Image of Judge Betty Fletcher from http://www.acslaw.org/chapters/lawyer/pugetsound

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

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U.S. v. Rivera, No. 06-30474 (6-2-08). Necessity is the mother of all wiretaps, or so the statute would require. Here, defendant argues that the wiretap was unnecessary because there were other means, and that the wiretap failed to minimize. The 9th (B. Fletcher joined by Kleinfeld and Gould) disagreed and affirmed the conviction and sentence. The 9th goes through the requirements for a wiretap, and the need to try other means first. The cases are parsed as to why some wiretaps are upheld and other disapproved because of other available means. Here, the 45-page affidavit sets out sufficient reasons why confidential informants would not work, and why other efforts would be stymied.

Delgadillo v. Woodford, No. 07-55089 (6-3-08). The 9th (Ikuta joined by Thompson and Wardlaw) defers to the state's decision to apply Crawford retroactively in state habeas. The petitioner had been convicted of domestic assault, and the state had used his then girlfriend's (and now wife's) prelim exam at trial. The petitioner wanted to use the Ohio v. Roberts test. The state courts said "no," and in state habeas, used Crawford. The 9th recognized that states were not bound by teague, which applies to federal habeas. States can apply new criminal procedure rules retroactively, which it did here. Sauce for the goose, sauce for the gander when there are Crawford issues in state habeas.

U.S. v. Santos, No. 06-10470 (6-6-08). Another "loss" case. Here, the defendant was involved in a counterfeiting scheme. The 9th (Reinhardt joined by Noonan and Fisher) held that a court may reasonably infer that a defendant intended to cash as many counterfeit checks as he could and for the full amount ($229,000 here). The defendant can present evidence that the scheme was organized differently, or that the loss was not intended to be the full amount, but the court did not err in this case.

Case o' The Week: Computer "Containers" Theory No Longer Contained, Giberson

Senior Judge Wallace (left) authors a devastating opinion on the Fourth Amendment and computers. United States v. Giberson, __ F.3d __, 2008 WL 2221008 (9th Cir. May 30, 2008), decision available here.

The opinion's casual extension of the "open container" Fourth Amendment exception to computers merits en banc review.

Players: Hard-fought appeal by Nevada AFPD Jason Carr.

Facts: Giberson was suspected of creating fake ID’s. [WL page cites not yet available.] The first search warrant authorized seizure of records and documents; though it didn’t mention computers, the feds seized Giberson’s anyway.

The second warrant authorized a search of the hard drive mirror image for records relating to the fake ID cards; the forensic examiner found child porn.

A third warrant authorized a search for child porn; 700 images were found.

Issue(s): 1. Particularity of Search Warrant: “[W]hether a warrant that describes particular documents authorizes the seizure of a computer where, as here, the searching agents reasonably believed that documents specified in the warrant would be found stored in the computer.”

2. Scope of Forensic Search: “Giberson also argues that the evidence obtained from the search of his computer should have been suppressed because the government did not sufficiently limit its search to relevant documents.”

Held: 1. Particularity: “Here, numerous documents relating to the production of fake I.D.’s were found in and around Giberson’s computer and were arguably created on and printed from it. It was therefore reasonable for officers to believe that the items they were authorized to seized would be found in the computer, and they acted within the scope of the warrant when they seized the computer.”

2. Scope of Forensic Search: “[I]n this case, based on the technology available to him for search Giberson’s computer, [the forensic analyst’s] search was reasonable; the pornographic material he inadvertently discovered while search for the documents enumerated in the warrant was properly used as a basis for the third warrant authorizing the search for child pornography.”

Of Note: In a cursory analysis Giberson appears to extend the profoundly disturbing Fourth Amendment “container” theory to computers:

Computers, like briefcases and cassette tapes, can be repositories for documents and records. We have not yet had occasion to determine, in an opinion, whether computers are an exception to the general principle that a warrant authorizing the seizure of particular documents also authorizes the search of a container likely to contain those documents. We hold that, in this case, where there was ample evidence that the documents authorized in the warrant could be found on Giberson’s computer, the officers did not exceed the scope of the warrant when they seized the computer.

For that paragraph alone, this case cries out for en banc review.

How to Use: In Giberson the agents seized the computer, then obtained a second warrant to search the mirrored hard drive. As the Court explains, “[The agents’] actions were particularly appropriate because the agents merely secured the computer while they waited to get a second warrant that would specifically authorize searching the computer’s files.” The decision (arguably) does not stand for the proposition that a validly-seized computer can be searched without a warrant, and without goal-driven analysis, for any data the agents happens to think is of interest.

For Further Reading: Giberson is an important (and bad) decision that (again) ignores the realities of technology by applying hoary old Fourth Amendment analogies (a computer is akin to a briefcase?) Only Judge Schroeder on the Giberson panel was an active Circuit judge (she sat with Senior Judge Wallace, and District Judge Benitez).

Giberson is reminiscent of the lousy Kelley decision, with a visiting Justice; or the lousy Barken decision, with a visiting senior circuit judge; or the lousy Hosvaldo Lopez case, authored by a visiting district judge; or the lousy Crews case, authored by a visiting senior, district judge.

See a trend?

Here’s hoping for a slew of new ‘09 appointments, to stave off these strangers to the Ninth. For an interesting discussion of the curious impact of visiting judges, see Sara C. Benesh, The Contribution of “Extra” Judges, 48 AZLR 301 (2006).


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

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