Thursday, November 27, 2008

Case o' The Week: Forged Signature Now "Aggravated Identity Theft" in Ninth, Blixt

What's in a name? A mandatory-minimum twenty-four month federal sentence, consecutive, thanks to a very troubling decision by Judge Johnnie Rawlinson (left). United States v. Blixt, __ F.3d __, 2008 WL 5003239 (9th Cir. Nov. 26, 2008) (decision available here).

Decision by Judge Rawlinson, joined by Judge Graber and visiting CD Cal District Judge Wright II.

Facts: Blixt forged her boss’s signature on checks made out to herself. Id. at *1. At trial, she unsuccessfully objected to jury instructions that equated a forged signature with a “means of identification” for 18 USC § 1028A (the “aggravated identity theft” statute, which carries a two-year consecutive mandatory minimum). Id. at *2. She also raised the issue in a Rule 29 motion. Id. at *2. Blixt was convicted, sentenced to forty-eight months, and appealed. Id.

Issue(s): “Blixt contends that the district court erred as a matter of law when it ruled that a signature is a name for purposes of [the] Aggravated Identity Theft statute . . . . Blixt asserts that she did not use another's name, she merely forged a signature, and because a forged signature is not separately identified as a “means of identification” under § 1028A, her actions did not violate the statute.” Id. at *3 (internal quotations omitted) (emphases added).

Held: “Whether the use of another’s signature constitutes a ‘means of identification’ for purposes of the Aggravated Identity Theft statute has not yet been resolved by this or any other circuit. Finding no prior authority on the issue, we hold as a matter of first impression that forging another's signature constitutes the use of that person's name and thus qualifies as a “means of identification” under 18 U.S.C. § 1028A.” Id.

Of Note: In Blixt, Judge Rawlinson jumps the Ninth out in front of all federal circuits to create a brand new rule (and a particularly bad one at that). Section 1028A of Title 18 is the (relatively) new “aggravated identity theft” statute, that tacks a two-year mandatory minimum sentence on top of the sentence for, for example, mail fraud charges. Like 21 USC § 851, Section 1028A is a mandatory-minimum statute that has been thoroughly abused by prosecutors to coerce unfair dispositions or discourage motions or trials – one notable example in the Northern District of California had an AUSA threatening to stack § 1028A counts to create a double-digit mandatory minimum sentence in a routine fraud case.

Blixt (another lamentable Montana case) has the Ninth expanding criminal liability for Section 1028A by converting the state crime of forgery, into the federal crime of identity theft. Here’s the new rule: now you don’t need a fake I.D., stolen routing numbers, or hacked identity codes – just scrawl someone else’s signature and it’s a two-year mand-min federal crime for "aggravated" identity theft!

Contrast Blixt to Judge Silverman's recent decision in Miranda-Lopez, where the Ninth held that the Rule of Lenity required that this terrible statute requires proof that the defendant knew that the card used came from a real person. United States v. Miranda-Lopez, 532 F.3d 1034 (9th Cir. 2008), blog here.

Hard to reconcile the spirits of Blixt and Miranda-Lopez. Blixt merits en banc review – this brand new federal rule will allow AUSAs to convert routine state forgery cases into stacked two-year mandatory minimum charges. The decision flatly ignores the Rule of Lenity, and offers little analysis for its dramatic expansion of criminal liability for these mandatory-minimum charges. If it survives, Blixt will spark a split – and the Ninth will find itself on the wrong side.

How to Use: While challenges to Blixt are underway, remember this red flag:
If you have a forged signature in a federal case, read the outline mentioned below and ask if the forged signature is “in relation to” a felony enumerated in Section 1028A(c). If so, re-evaluate the cost-benefit analysis of motions or trial – a superseding § 1028A count or two can dramatically change the exposure of an otherwise minor case.
For Further Reading: We’ve previously plugged Boston AFPD Martin Richey’s excellent outline on identity theft: here’s another pitch for it as well as a link.

Image of Judge Johnnie Rawlinson from

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


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Sunday, November 23, 2008

Case o' The Week: Gun in One's Lap Not "Knowing" Possession, Nevils

A baby shower where guests get so drunk they pass out, a respected academic caught by his wife in the kitchen with the chambermaid -- is any field ever as interesting as criminal law? See United States v. Nevils, __ F.3d __, 2008 WL 4937030 (9th Cir. Nov. 20, 2008) (decision available here). In Nevils, Judge Paez gives us a wonderful new decision on the "knowing" possession of a gun, with important language on "mere proximity," "actual possession," and "constructive possession."

Players: Admirable win by CD Ca. AFPD Elizabeth Newman.

Facts: Cops chased dude into an apartment complex in a high-crime area of L.A.. Id. at *1. Their attention was diverted from dude when they came upon Apartment 6, with door ajar. Id. Sleeping on a couch within Apartment 6 was Earl Nevils. Id. A gun was leaning against his leg, another was in his lap. Id. On a nearby coffee table were baggies full of pot and ecstasy, a cell phone, wrist watches, documents, and U.S. currency. Id. Nevils was “startled” awake, said the cops, and they claimed he briefly reached for his lap. Id.

After his arrest, the defendant complained, “I don’t believe this shit. Those motherfuckers left me sleeping and didn’t wake me.” Id. (Several weeks before, Nevils had been arrested in Apt. 6 for a violation of parole – associating with gang members. Id. at *5).

At his trial for being a felon in possession of a gun, Nevils introduced evidence that he had been at a party (a baby shower) in a neighboring apartment all day, had gotten so drunk he couldn’t stand, and had been put on the couch to sleep it off. Id. There were no guns or drugs around him, Nevils’ witness testified, when Nevils was put on the couch. Id. at *5. He was tried and convicted of being a felon in possession of a gun, and the district court denied the Rule 29 motion. Id.

Issue(s): “Nevils timely appealed. He argues that the evidence was insufficient on the element of knowing possession. Nevils points out that: (1) it is undisputed that he was asleep; (2) a witness offered un-rebutted testimony that he had gotten drunk at a nearby party and had been taken to Apartment 6 to lie down; and (3) no other evidence – other than his presence – tied Nevils to the firearms, or to the other items found in the apartment (i.e., the drugs, the cell phone, the watches, and the U.S. currency.”) Id. at *2 (footnote omitted).

Held: “On this record, we hold that the Government failed to produce evidence that would have allowed a rational jury to infer knowing possession beyond a reasonable doubt. It may be natural to assume that somebody must have possessed the weapons because they were there, but the Government did not offer sufficient evidence to prove that the ‘somebody’ was Nevils.” Id. at *8 (internal quotations and citation omitted).

Of Note: Dissenting Judge Bybee is “amazed and disappointed” at this opinion by Judge Paez, joined by Judge T.G. Nelson. Id. at *8 (Bybee, C.J., dissenting). The dissenter complains that the standard to prevail on a Rule 29 motion is “extraordinarily high,” id., and that here there was no plausible explanation for how Nevils ended up with a loaded semiautomatic in his lap and a pistol against his leg, id. at *11. This dissent is a gift, for the opinion’s holding despite the “extraordinarily high” Rule 29 standard makes the lessons of Nevils even more potent defense ammunition.

How to Use: Nevils has value far beyond the narrow fact pattern of the sleeping defendant. In a very thoughtful discussion, Judge Paez surveys case law on “mere proximity,” “actual possession,” and “constructive possession.” Id. at *3. He rejects rigid categorization of these theories, and instead focuses on the “dispositive requirements of knowledge and ability and intention to control.” Id.

The case is a must-read for “knowing” possession drug and gun cases. The decision rejects “mere presence” and Nevils’ “general character and history as a gang member” as sufficient evidence for the “knowing” mental state (despite the fact the gun was in his lap!) Id. at *6. Judge Paez also insists that, “When there is an innocent explanation for a defendant’s conduct as well as one that suggests the defendant was engaged in wrongdoing, the government must produce evidence that would allow a rational jury to conclude beyond a reasonable doubt that the latter explanation is the correct one.” Id. at *7 (quotations and citation omitted). Good stuff.

For Further Reading: Judge Bybee begins his dissent with Samuel Johnson (above right) who was “surprised” to be discovered in the kitchen with the chambermaid by his “amazed” wife. Id. at *8. For other Johnson witticisms, visit the Encarta Book of Quotes here, at page 487.

Here's one such quote: "He did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney." Id.

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


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Thursday, November 20, 2008

Waldrip v. Hall, No. 07-55512 (11-18-08). The petitioner's petition was denied in state court. Eight months lapsed before he subsequently filed in a higher state court, which denied his petition without comment on its timeliness. The 9th, taking its lead from the Supremes in Evans v. Clark, 546 US 189 (2006), held that the time gap of in excess of six months was too long to assume blanket tolling, absent sufficient justification based on unique facts. The state supreme court (California) required a filing of a post-conviction petition seeking review of an adverse lower court decision within a reasonable time. The Supremes in Evans read the state supreme's court requirement for a reasonable time to file as not being in excess of six months. Here it was. Of note, the 9th also affirmed the allowance of the state to amend its answer to reflect Evans, and the 9th excused the state's not challenging the issue as having been fruitless.
U.S. v. Nevis, No. 06-50485 (11-20-08). The 9th does not take a conviction laying down, or asleep. The defendant here was asleep on a couch, with a gun on his lap, one leaning against the couch, and drugs, cell phone, and currency on a coffee table. The police burst in on the defendant, in this Apt. 6, while chasing another gang member in a high crime area. The door was open. The defendant was startled, put his hands up, and said something to the effect of 'they left me here.' The defendant was a felon, and so charged with being a prohibited possessor. He was convicted. The 9th reversed for insufficiency of evidence (!) (Paez joined by T. Nelson). Yes, the guns were on the defendant, but he said that he had gotten drunk at a baby shower (!), and was taken to the apartment to sleep it off (six hours earlier). The police had no tie between the contraband, or cell phone, and the defendant; he was a supposed visitor to the apartment, admittedly in a high crime area, and there was no evidence presented as to his knowledge of the weapon (as opposed to constructive or actual possession). The evidence of someone leaving weapons was every bit as viable as the possession. The 9th stresses the lack of any connection. It distinguishes those cases where guns in cars and homes could be tied to the defendant's knowledge. Bybee, dissenting, is amazed at the result, stressing that the standard is in the light most favorable to the government, and arguing that any other explanation was unbelievable. A very good case as to sufficiency and knowledge.

Congratulations to AFPD Elizabeth Newman on the FPD Office (L.A.).

Doody v. Schriro, No. 06-1716 (11-20-08). This is a petition arising from the cold-blooded murder of several Buddhist monks in their monastery outide Phoenix years ago. False confessions had been wrung out of several suspects, before the police turned to the petitioner here, a 17-year old Thai American. He was interrogated for six hours, with 45 minutes of hard questioning and demands that he answer. The 8th finds that the Miranda warnings were sufficient, BUT the 9th holds that the confession itself was involuntary. The petitioner was young, the Miranda warnings were soft-pedaled, and presented as being unimportant, and the questioning was relentless and demanding for hours and especially in the last 45 minutes, despite the petitioner's silence. The 9th (Berzon joined by B. Fletcher and Rawlison) discuss the distinction between Miranda protections, and voluntariness. The 9th finds that the state supreme court's holding as to Miranda was deserving of deference, but that its voluntariness finding was unreasonable. The 9th focuses on the factors involved, including youth, inexperience with the criminal justice system, pressure, tone, and relentlessness. A significant decision.

Wednesday, November 19, 2008

Judge Mosman On Oral Argument

Appellate attorneys are used to being provided judicial advice on oral advocacy: be prepared; organize your argument; answer the question; stop slouching; don’t mumble; spit out that gum. So here’s a turnaround: Oregon District Court Judge Michael Mosman provides his thoughts on how judges can increase the civility and effectiveness of oral argument. Citing Aretha Franklin and Butch Cassidy, Judge Mosman points out that lawyers are not “serfs or peons” and suggests five paths to better arguments. Here’s the link with thanks to the HowAppealing blog.

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

Saturday, November 15, 2008

Case o' The Week: You Can't Always Get What You Want (Gallaher and Conditional Pleas)

For what is quite likely the first time in a federal appellate decision, the Ninth quotes the Stones in the first line of a published opinion. In re: James H. Gallaher, Jr., __ F.3d __, 2008 WL 4877454 (9th Cir. Nov. 13, 2008), decision available here. An apt quote, too: this decision on conditional pleas is likely to leave everyone grumbling, a little . . .

Players: Win – sort of – by ED Wa. & Idaho Ass’t Fed. Def. Stephen Hormel.

Facts: Gallaher was charged with first degree murder, and raised an (unsuccessful) statute of limitations challenge. Id. at *1 & n.1. He entered a conditional plea agreement, where he plead to involuntary manslaughter and retained the right to appeal the denial of the S.O.L. motion. Id. The agreement allowed him to withdraw his guilty plea if his appeal was successful. Id.

District Judge Whaley “conditionally approved” the plea, but said he wanted to wait and see the PSR before his final decision. Id. There followed a “whose on first?” dialogue where the court and defense counsel debated whether the court was “conditionally” accepting the plea, or the plea agreement. Id. at *1-*2. The court ultimately got the PSR, rejected the “conditional plea,” and set the case for trial. Id.

Gallaher filed a petition for a writ of mandamus, seeking an order directing the court to accept the guilty plea, and reassignment to a new judge. Id. at *2.

Issue(s): 1. Consent: “[W]hether the district court did in fact withhold its consent [to the conditional plea]?” Id. at *3.

2. Rule 32:
“Whether the district court erred by reviewing the PSR before rejecting Gallaher’s conditional plea.” Id. at *3.

Held: 1. Consent: “Because the district court exercised its discretion to reject the plea, the petition for writ of mandamus is denied.” Id. at *3. 2.

Rule 32:
“Because the district court did not consent to Gallaher’s attempt to plead guilty, it follows that Gallaher had not ‘pleaded guilty,” and thus the court’s review of the PSR was premature and in error.” Id. at *4. [Remanded to a different judge].

Of Note: How do conditional and unconditional pleas differ? “An unconditional plea may be deemed accepted once the court has conducted a Rule 11 colloquy and found that the defendant’s plea satisfies the requirements of Rule 11(b) . . . By contrast, a conditional plea is contingent on the defendant securing the consent of both the government and the court.” Id. at *2.

What limitations are there on the district court’s discretion to accept – or reject – a conditional plea? None, apparently: in a disappointing new rule, the Ninth refuses to articulate any limitations or guidance on the exercise of the district court’s discretion in the context of conditional pleas. Id. at *3.

How to Use: Authoring Judge McKeown’s first quote is the Rolling Stones,“You can’t always get what you want.” Id. at *1. A defendant can’t always get a court’s consent for a conditional plea, and a district court can’t get the PSR until a defendant has granted his consent or entered a plea. Id. at *1.

The Stones, however, are incompletely quoted: “ . . . But if you try sometimes, you just might find, you get what you need.” You Can’t Always Get What You Want, Let It Bleed (Decca Records 1969). How does the district court get what it needs? “Encourage” the parties to consent to a pre-plea presentence report, before the plea is taken. How does the defense get what it needs? Structure the plea as an 11(c)(1)(C) agreement: if the court busts it, the plea gets withdrawn.

How does the government get what it needs? Wise-cracks aside, the government gets these deals through by agreeing to pre-plea reports and the 11(c)(1)(C) agreements.

Gallaher needs a careful read before its rules are quoted too broadly. This deal was a classic, “hold your nose, and down it goes” – except, in this case, the district court couldn’t stomach it. It involved a plea to a crime that was outside of the statute of limitations, and a deal that allowed the district court to depart from the stat max that existed at the time of the offense. See id. at *1 & n.3. It’s a pity that this atypical fact pattern creates a new rule on broad district court discretion to reject conditional pleas: the Ninth could have easily resolved the issue on a narrower basis.

For Further Reading: Who gets conditional pleas? The N.D. USAO’s office never gives them – then denies it has a policy of withholding them. (Try a Westlaw search in the Ninth Circuit database for "conditional plea" and "Northern District of California" -- almost every case is before the year 2000.)

When the new tenant of the 11th Floor corner-office moves in on January 21st, the conditional plea policy will be a good place to start reform. For an interesting read on DOJ’s current policy on plea agreements, visit its manual here.

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


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Thursday, November 13, 2008

Gallagher v. U.S. District Court, No. 07-74593 (11-13-08). "[The Defendant] Can't Get No Satisfaction." Instead, the 9th (McKeown) begins the opinion with the Rolling Stones "classic" lyrics "You can't always get what you want." Okay, so what is this about? "A defendant who chooses to take a conditional plea cannot always assume the court will grant its consent. And, a district court that wants to review a defendant's Presentence Report (PSR) cannot do so until the defendant has granted his consent or entered a plea. Here, the defendant was charged with first degree murder, but entered a conditional plea to involuntary with the ability to appeal the suppression issue. The court apparently did not accept the conditional plea, and was sunder no obligation to do so under Fed. R. Crim. P. 11(a)(2). The court could decline, which it apparently did, but the court cannot then read the PSR under Fed. R. Crim. P. 32. That has to wait until the plea has been accepted, or the defendant consents. Neither occurred here. The special action asking the 9th to force the conditional plea is denied, as is the argument that the court did in fact accept it; the case though is remanded and assigned to a new judge because of the reading of the PSR. Alas, no sympathy for the devil.

Sunday, November 09, 2008

Case o' The Week: Ninth Holds Out for Holdout, Williams and Allen Charges

"Wait, wait: don't tell me!" A witty and satiric news quiz found on NPR? Or the plaintive cry of a district judge as a hold-out juror is about to reveal her identity? Both, it turns out.

In United States v. Williams, __ F.3d __, 2008 WL 4812012 (9th Cir. Nov. 6, 2008), Judge Bybee reverses when a district court gave a watered-down Allen charge after the identity of a holdout juror was disclosed. Opinion available here. An important case for the Allen analysis framework, and an opinion that provides some handy new rules for the defense.

Another win for former San Diego AFPD Ben Coleman.

Facts: Williams, et al., were charged with conspiracies to interfere with commerce by robbery and to sell cocaine, and § 924(c)’s. Id. at *1. Williams and his crew agreed to rob a cocaine “stash” house that was, in reality, a sting operation set up by a government snitch. Id. at *1.

The jury deliberated for 2 ½ hours, then the foreman sent a note asking if a juror could send the judge a note – without the foreman seeing it. Id. at *10. A half-hour later, the foreman sent another: “Your Honor, the juror refuses to proceed until you have responded to her note.” Id. at *10. The note said (verbatim):
Judge Gonzales, I disagree with my fellow jurers of (a) entrapment, (b) conspiracy of possession to distribution of drugs, concerning David Williams, Steele, & Brown. I can't get pass this issue, & feel the other jurers have already convicted the three defendants on all accounts. As it stands, my headache is worst and will not be bombarded to change my opinion. May I please be excused from this case, as I feel very strong about my decision & could not face the defendants with the charges the other jurers are hard on declaring. P.S. I hate to use the word prejudice, but feel its presence strong in the room above the law.

Id. at *10.

The judge gave a supplemental instruction, the jury came back with guilty verdicts five hours later. Id. at *11.

Issue(s): “Williams, Brown, and Steel challenge the district court's decision to give a supplemental jury instruction in response to a juror’s note. They argue that the district court was required to declare a mistrial because the juror’s note revealed that she was a holdout.” Id. at *10 (footnote omitted).

Held: “We agree.” Id. at *10. “Because the district court gave an Allen charge after a juror disclosed that she was a holdout, we reverse and remand for a new trial.” Id. at *1.

Of Note: “An Allen charge is the generic name for a class of supplemental jury instructions given when jurors are apparently deadlocked.” Id. at *11 (quotation omitted). In its model instruction set, the Ninth has a pretty forceful Allen charge – Model Instruction 7.7, “Deadlocked Jury.” The instruction given here was not that Allen charge: it was more considerably more tame. Thus, the threshold question was whether this fact pattern even falls into the Allen charge analysis?

It does.

Even though the district court didn’t intend for its supplemental instruction to be an Allen charge, and even though this was a “neutral” instruction that had been previously given to the jury, Judge Bybee still used the Allen framework for the Ninth's analysis. Id. at *13. “So long as the defendant has offered facts that fairly support an inference that jurors who did not agree with the majority felt pressure from the court to give up their conscientiously held beliefs in order to secure a verdict, we must proceed to the Allen charge analysis.” Id. at *11.

This is an interesting rule, and one worth remembering at trial: an impermissibly coercive charge can become an issue even before the jury formally gives notice of deadlock, and even though the full “dynamite” Allen Model Instruction 7.7. is not given.

How to Use: Williams is a useful primer on Allen charges -- it collects and compares many of the Ninth's Allen cases. Id. at *14. Williams also flags a key fact for Allen analyses: was the identity of the holdout juror disclosed? If so, that’s pretty close to the silver bullet – time for a mistrial, and not for an Allen charge. Doesn’t matter if the jury had taken a vote, doesn’t matter that the foreman had not opined on whether further deliberations would be productive: when the holdout juror is identified, the district court cannot give an instruction to keep deliberating. Id. at *15.

For Further Reading: The Ninth distributes handy little jury instruction manuals. Or rather, they were handy – a year before Obama gave his first speech at the Boston DNC. Things change, in five years.

The manual is from ‘03. The most recent on-line instruction pack is from August ‘08. Thirty-five instructions have changed in the five years since the book was published. PDF and Wordperfect versions of the Ninth’s most-recent Model Criminal Jury Instructions can be found here.

The Allen charge discussed in this memo -- Ninth Circuit Model Criminal Jury Instruction 7.7 (deadlocked jury) -- can be found at page 130 of this on-line packet.

Image of the "Wait, wait" panelists from

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


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Friday, November 07, 2008

U.S. v. Miller, No. 07-30481 (11-7-08). Defendant was getting to the end of his sentence, and so was transferred by BOP to a state (Idaho) county jail, where he was on work release. He finally got out, and subsequently was arrested and found with drugs. He argued that his time in the county jail should count toward his supervised release term, in which case he had served his term, and could not be revoked. Alas, unlike in U.S. v. Sullivan, 504 F.3d 969 (9th Cir. 2007), where the defendant had been serving a state sentence when placed on work release, the defendant here was still in BOP "custody," and his transfer was to a federal pre-release center, and under 3642(c) counts as confinement.

Thursday, November 06, 2008

U.S. v. Youssef, No. 07-10335 (11-5-08). The defendant checked "no" to the question of whether he had ever been arrested or convicted of an offense on the I-495 immigration form to adjust status. He had, in fact, been convicted of resisting or disobeying a court order. He was charged and convicted at a bench trial. The issue on appeal was whether the government had to prove this statement was material as an element of the offense. The 9th held, per curiam, that 18 U.S.C. 1015(a) does not require the false statement to be "material" as an element of the offense. The plain language of the statute says "false statement" and has no mention of materiality. The 9th follows the 4th (usually a bad sign), and also reasons that Congress has inserted the requirement of materiality in other false statement provisions (1001).

U.S. v. Williams, No. 06-50599 (11-6-08). "Judge, all the other jurors want to convict, there's a sense of disrespect and prejudice in the room, and I'm the lone hold-out. What to do?" This was the gist of the note sent by one juror to the court in a trial on conspiracy to commit robbery and other nefarious activities. The answer, delivered by the 9th (Bybee with Canby and Kleinfeld), was, "Don't give an Allen charge." Because the district court did, even though it said it was not, the case is reversed. The district court erred in giving the an instruction about going back, listening to one another, hearing views, and playing nice, because the court knew there was a hold out, and specifically who. This focus meant that the court could be perceived as pressuring that juror (i.e. that instruction was directed to me and telling me that I'm wrong). The 9th emphasized when a juror clearly disclosed that she disagrees with the rest of the jury and cannot return a different verdict, the court cannot instruct the jury to continue. The 9th vacated and remanded. The 9th held, as to the other issues, that there was sufficient evidence for conviction and dismissal was not required for prosecturial misconduct.

Sunday, November 02, 2008

Case o' The Week: One Minute (Order) Means Years, Snellenberger

Only in California can one burgle an outhouse (though why one would remains a mystery). United States v. Snellenberger, __ F.3d __, 2008 WL 4717190, *1 (9th Cir. Oct. 28, 2008) (en banc), decision available here. California Penal Code § 459 burglary is broader than the federal "generic" definition (limited to residences), so it is a frequent question as to whether a prior burglary conviction qualifies as a "crime of violence" for federal sentencing enhancements (like Career Offender).

In Snellenberger, the en banc Court held
that a clerk's minute order can be used during the modified categorical analysis to determine whether a prior California burglary conviction qualifies as a crime of violence.

The bigger question, however, goes unanswered in Snellenberger: why does the extraordinarily broad California burglary crime ever qualify as a "generic" federal "crime of violence?"

Players: Per curiam decision. Dissent by Judge M. Smith, joined by C.J. Kozinski and Judges Reinhardt and Thomas.

Concurrence by Judge Graber, joined by Judges Rymer, Kleinfeld, Hawkins, Gould, and Tallman.

(Interestingly, only one judge joined neither the concurrence or dissent: Judge W. Fletcher. His vote is one to watch if -- or rather, when -- Aguila Montes de Oca goes en banc).

Facts: Snellenberger robbed a bank and got hit with Career Offender. Id. at *1. One prior “crime of violence” was a California burglary. Id. at *1. For that prior conviction, he had been charged with: Count One, burglary of a residence, and Count Two, burglary of a vehicle. Id. at *2. The former can be a “generic” crime of violence (Ed. note: actually not, but more on that below), the latter can not. Id. The only evidence that Snellenberger had pleaded guilty to the first count – and not the second – was a clerk’s minute order. Id. at *1.

The late, great Judge Ferguson held for a three-judge panel that the federal sentencing court could not rely on a minute order when applying the modified categorical approach. The case went en banc.

Issue(s): “We must decide whether a court may consider a clerk’s minute order when applying the modified categorical approach of Taylor v. United States, 495 U.S. 575 (1990).” Id. at *1.

Held: “We . . . hold that district courts may rely on clerk’s minute orders that conform to the essential procedures described above in applying the modified categorical approach.” Id. at *3.

Of Note: Doubling a sentence hinges on a clerk’s minute order? A minute order? J&C Orders, sure, and transcripts, yes: the former is reviewed by the sentencing judge and defense counsel, and with the latter, court reporters are trained to be accurate and know their transcripts are critical. But minute orders? Turns out that checking the accuracy of a clerk’s minute order “presumably . . . is part of every criminal defense lawyer’s professional obligation.” Id. at *2. Want a cite for that remarkable proposition? So do we – you won’t find one in the opinion.

How to Use: Snellenberger’s Big (Unanswered) Question is, “why is a California burglary a federal, generic crime of violence in the first place?” As Judge Milan Smith persuasively explains in dissent, it ain’t: California has been creative with its view of “burglary,” and the California offense is now (considerably) broader than the generic federal definition. See id. at *4 (Smith, J., dissenting). The Ninth’s new rule in the en banc Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) is “plain and clear:” “the modified categorical approach never applies when the crime of conviction is missing an element of the generic crime altogether.” Id. at *4.

Why, then, didn’t Snellenberger win – clerk’s minute order or no? Because, the concurring judges opine, this issue wasn’t raised in the opening brief, and doesn’t rise to plain error. Id. at *3 (Graber, J., concurring).

Does this seem a bit of an artful dodge by the concurrence? The dissenters think so – and particularly when one considers that the Ninth invited supplemental briefing on the Navarro-Lopez issue during this appeal!

Hope remains, however. The indefatigable crew at the San Diego Defender have a petition for rehearing pending in United States v. Aguila-Montes de Oca, 523 F.3d 1071 (9th Cir. 2008). In Aguila-Montes de Oca, the burglary issue is squarely before the Court – and a 28(j) letter is now in route, trumpeting Judge Smith’s thoughtful dissent.

In sum, if you have an illegal reentry, § 922(g)(1), Career Offender, or Armed Career Criminal sentence that hinges on a California Penal Code § 459 conviction being a “crime of violence,” object! There’s a good chance that Cal. burglary priors, like Cal. stat-rape priors, will soon fall “categorically” outside of generic federal definitions. See United States v. Estrada-Espinoza, __ F.3d __, 2008 WL 4615681 (9th Cir. Oct. 20, 2008) (en banc).

For Further Reading: Do these memos seem bogged down in the jurisprudential goo of the categorical / modified categorical analysis? Think how the Ninth must feel. The Court’s attempts to distill this jurisprudential swamp is progressing – but is far from over. For a thoughtful article on the complicated analysis, see Jonathan D. Montag, The Taylor Analysis and Taylor Modified Categorical Approach - When does the crime fit the removal ground? available here.

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


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