Thursday, December 25, 2008

Case o' The Week: Sausage Carver, Mem Dispos and "final" Decisions

"To retain respect for sausages and laws, one must not watch them in the making." Otto von Bismark. Judge Stephen Reinhardt (left) takes us deep into to the sausage factory in a fascinating decision that illustrates just how much difference one judge can make . . . . Carver v. Lehman, No. 06-35176, __ F.3d __, 2008 WL (9th Cir. Dec. 22, 2008), decision available here.

Players: Decision by Judge M. Smith (upper right) joined by Judge Tallman; vigorous “concurrence in judgement” by Judge Reinhardt.

Facts: Carver, a convicted sex-offender, filed a § 1983 suit against the Washington Department of Corrections (“DOC”). Id. at *1. He alleged that DOC’s categorical rule for sex offenders (prohibiting early release to community corrections at the end of a sentence) violated his Fourteenth Amendment due process rights. Id.

Issue(s): “Carter argues that [Washington’s statutory release scheme] creates a protected liberty interest because it requires DOC to transfer an inmate to community custody in lieu of earned release ‘unless any one of the specifically designated reasons are found . . . .’” Id. at *3.

Held: “We disagree.” Id. at *4.

Of Note: The interesting bit of Carver is the sniping between Judges M. Smith and Reinhardt. Id. at *6. Turns out that the original panel on this case included Judge Ferguson (left, rest in peace), who was replaced by Judge Tallman upon his death. Id. at *9 (Reinhardt, J., concurring in judgement only). Six months before this revised Carver decision, the original panel filed a majority opinion holding that Carver had a liberty interest – with Judge Smith writing separately, disputing that holding. Id.; see Carter v. Lehman, 528 F.3d 659 (9th Cir. 2008), withdrawn by 540 F.3d 1011.

What changed in six months? Some new constitutional decision? An intervening Supreme Court opinion? Nope: Ferguson passed away, was replaced by Tallman (right), the filed decision was yanked, and Smith and Tallman reversed the original outcome.

As Judge Reinhardt observes, “To those who question whether the results in constitutional and other cases depend on the membership of the panel, or whether the replacement of even a single Supreme Court justice can change the fundamental nature of the rights of all Americans with respect to matters as basic as affirmative action, a woman’s right of choice, and the nature of religious liberty, the result in the case currently before our panel is merely a minor illustration of how the judicial system currently operates.Id. at *9.

Judge Reinhardt notes that there’s a mechanism for reversing a panel’s decision: en banc consideration. Id. at *11. This wasn’t that. This was a (new) conservative panel yanking an (old) liberal majority decision after it was published, but before it was “final.” Technically permissible, Reinhardt concedes, but bad form.

How to Use: In 2007, the grizzled vets on the Ninth warned us that the Supreme’s new rule allowing citation of memoranda dispositions was ill-advised. See article here, quoting Chief Judge Kozinski. They were right. In Carver, Judge Smith traces a number of unpublished memoranda dispositions in support of the reversed outcome, and claims the new Carver opinion tracks the state of the law (as stated in mem dispos). Id. at *7-*8. “[N]othing in our rules,” states Smith, “prohibits our own judges from considering or referring to unpublished dispositions issued at any point in time, and even relying on them so long as they do not conflict with binding precedential decisions.” Id. at *7 (emphasis added).

Judge Reinhardt describes this approach as “more than mindboggling.” Id. at *11. “If we were to accept this view, the law in this circuit would no longer be declared in opinions; ‘existing’ circuit law could be found in whatever sources suited anyone’s whim or fancy, including the Sewanee Law Review.” Id. at *11.

Citation of unpublished decisions is a flat-out bad idea that generally hurts the defense bar (how many of those sloppy mem dispos grant defense relief?) but if you’re going to do it, Carver does more to bolster mem dispos than any other case.

For Further Reading: Three weeks with no published Ninth Circuit criminal decision. What gives? Maybe the traditional holiday slowdown. Or maybe that insidious third “acceptance” offense level is finally having the chilling affect on criminal appeals that we’ve long predicted. See blogs here, here, here, here, and here.

Image of Hon. Milan Smith from . Image of Hon. Richard Tallman from Image of Hon. Stephen Reinhardt from Image of Hon. Warren Ferguson from

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


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Sunday, December 21, 2008

Case o' The Week: The Real Deal, United States v. Augustine Murillo & Suspended Sentences

The Ninth continues its holiday break from criminal decisions, with the second straight week of civil cases filling its plate. This gives us a chance to reach back a bit and look a little decision with a big (unwritten) sub-context: United States v. Augustine Garcia Murillo, __ F.3d __, 2008 WL 5049914 (9th Cir. Dec. 1, 2008), decision available here.

Players: Decision by Judge Rymer (left), reversing District Judge Manuel Real (below right).

Facts: There’s two sets of facts in this case: those in the brief opinion, and the back story. (This COTW memo is longer than the opinion!)

From the opinion: Murillo pleaded guilty to illegal reentry. Id. at *1. Judge Manuel Real (important fact) “imposed a suspended sentence and then placed the defendant on probation for five years with a condition that he spend twelve months in custody during the probationary period.” Id.

From the back story: Murillo took a “fast track” deal under Fed. R. Crim. Proc. 11(c)(1)(C). Appellant’s (Gov’t) Brief, 2008 WL 891256 *3. This deal knocks an extra four offense levels off an illegal reentry defendant’s guideline range. Id. at *4. The deal was a joint recommendation for the low-end of Murillo’s range: 18 months. Id.

At sentencing, District Judge Real rejected the parties’ joint-recommended sentence of eighteen months, and imposed a sentence of five years of probation with a condition of twelve months custody. Id. Judge Real justified his sentence by reference to Section 3553(a)(4) and Booker. Id. at *14. When the government objected, Judge Real replied, “Take it up. I want to know if that’s right . . . If you don’t want to save money for the United States, take it up, so we’ll get the court of appeals to see whether or not that’s a legal sentence.” Id.

The government took it up.

Issue(s): (Ed. note: Because there is no statement of issues, this is a summary):

1. Suspended sentences:
Do district court have the power to suspend the imposition of a sentence?

2. Probation:
Can a district court impose a constant period of imprisonment as a condition of probation?

Held: “We reverse the district court and vacate the sentence.” Murillo, 2008 WL 5049914, *1.

1. Suspended Sentences:
“Under our current sentencing scheme, district courts do not have the power to suspend the imposition of a sentence.” Id.

2. Confinement as condition of probation: “[A] district court may not impose a constant period of imprisonment as a condition of probation.” Id. “[W]e direct that on remand the case be reassigned to a different district judge for resentencing.” Id.

Of Note: Wasn’t it a tad cowardly of the government to run to the Ninth for relief? This was a locked deal: if the government didn’t like Real’s sentence it could have busted the (c)(1)(C) plea in the district court and duked it out there.

Moreover, defense counsel was in an awkward spot – Murillo had agreed to a specific deal, and the defense was both contractually and honor-bound to not advocate for Real’s lower sentence. This means that the Ninth decided these issues on a poorly-formed record with a hamstrung defense counsel.

Third, and perhaps most importantly, this was an appeal from the Honorable Manuel Real (right). One suspects that this fact is a proxy for more background facts in the decision, or for more analysis in support of the holdings. Ninth Circuit wonks (and CD Cal. counsel) may understand this sub-text. That sub-text won’t, however, be clear when Murillo is later cited against the defense in future cases.

How to Use: With little analysis Murillo states sweeping rules which may, in fact, be wrong (or rather, overbroad). For example, the decision states that a district court does not have the power to suspend a sentence, citing United States v. Mueller, 463 F.3d 887 (9th Cir. 2006). Fair enough, but Mueller was largely concerned with whether a court can grant a probationary sentence in a mandatory minimum case. 463 F.3d at 890-91. Section 1326 (illegal reentry) cases carry no mandatory minimums – and it isn’t clear that probation is prohibited for these cases after Booker.

Similarly, the Ninth chides that a district court can’t impose constant imprisonment as a condition of probation. Fair enough, but Judge Real could have easily imposed a twelve-month custodial sentence under Booker, with a term of supervised release to follow – and that would have been bullet-proof on appeal. Murillo neglects to note that option.

For Further Reading: For more on the Hon. Manuel Real saga, see a Wall Street Journal blog entry here discussing cases which have been taken from the district court judge.

Steven Kalar, Senior Litigator N.D. Cal F.P.D. Website at

Photo of Hon. Pamela Rymer from . Image of Hon. Manuel Real from


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Saturday, December 13, 2008

Case o' The Week: "Honest Services" in the Eye of the (AUSA) Beholder, Weyhrauch

A slow week for criminal cases lets us stretch back a bit to a very interesting -- albeit disappointing -- decision on public corruption. United States v. Bruce Weyhrauch, No. 07-30339, 2008 WL 5003366 (9th Cir. Nov. 26, 2008), decision available here. In Weyhrauch, Judge Fisher, joined by Judges D.W. Nelson and Tashima, creates a new rule in the Ninth Circuit: the federal government can now prosecute under an "honest services" theory of mail fraud, even if the public official did not actually violate any state law. Bad news for former Alaska State Representative Weyhrauch, above in the red.

Players: Decision by Judge Fisher, joined by Judges D.W. Nelson and Tashima.

Facts: Bruce Weyhrauch was a lawyer and member of the Alaska House of Representatives. Id. at *1. He was charged federally with “honest services” mail fraud, on the theory that he gave favorable legislative treatment to an oil-drilling company with the understanding that the company would hire him in the future to provide legal services. Id.

The district court granted a defense motion to exclude evidence relating to this “honest services” fraud, because Alaska state law did not prohibit Weyhrauch from negotiating future employment with a company affected by pending legislation. Id. at *2. The government took an interlocutory appeal of this exclusion order. Id.

Issue(s): “This is an interlocutory appeal by the government of the district court’s pretrial order excluding evidence from a mail fraud prosecution. It presents a matter of first impression in this circuit – whether a federal honest services mail fraud prosecution under 18 U.S.C. §§ 1341 and 1346 requires proof that the conduct at issue also violated an applicable state law.” Id. at *1.

Held: “[W]e disagree with the district court that a state law violation is required, and thus reverse the court’s order excluding certain evidence from trial.” Id. at *1.

Of Note: How many bites of the apple does the government get to properly certify an interlocutory appeal? Four, in this case! Id. at *2. Must be a big apple.

Sure would be nice to get four Mulligans in defense appeals, or four habeas petitions in the post-AEDPA world. The government better shape up, though: the Ninth “shall not be so forgiving in the future.” Id. at *4. The feds may only get three chances to make it right, next time . . . .

How to Use: Weyhrauch creates a new Ninth Circuit rule and deepens a circuit split. Judge Fisher starts by tracing the history of the “intangible rights” theory of honest services fraud. Id. at *5. The Third and Fifth Circuits have adopted rules that require a showing that the public official violated an independent state (or, in the Third, federal) law for an “honest services” conviction. Id. at *5. The First, Fourth, Seventh and Eleventh Circuits, however, have all held that there’s a uniform federal standard for “honest services” (although they haven’t agreed with what that standard is). Id. at *6. In these circuits, there’s no need for an independent state law violation. Although Judge Fisher concedes the policy considerations supporting the Fifth Circuit’s rule, he ultimately rejects the “state law limiting principal.” Id. at *7-*8.

While a disappointing holding, this is a well-written and balanced decision: it seems like an issue the Supremes should take up again, given the controversy over this important new rule. This is particularly true because the Ninth doesn't actually articulate what the "uniform" federal definition of honest services is. Maybe it's like obscenity: you know it when you see it?

This is an important new Ninth Circuit rule – and a dangerous one at that. The Court assures us that here, Weyhrauch’s alleged conduct falls within the two “core” categories of honest services fraud. Id. at *8. After adopting its new rule, however, the panel fails to give us the “uniform” definition federal “honest services” fraud. Because there’s now no state-law limitation on the theory of prosecution, and because there is in fact no clear “uniform” federal definition, the upshot is that federal prosecutors will be defining and testing the outer boundaries of this “intangible right to honest services.” In other words, “honest services” are now what P.I.S. AUSAs say they are.

Even honest state officials should be spooked.

For Further Reading: The Anchorage Daily News has an interesting collection of stories on the ongoing saga of the Weyhrauch litigation (and links to summaries of the corruption trials of other Alaska politicians, including Senator Ted Stevens), here. Mr. Weyhrauch has had a bad year or two: he had to be rescued by the Coast Guard in April 2007 after a boating trip in Auke Bay. See newspaper article here.

Image of former Representative Bruce Weyhrauch from

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


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Friday, December 12, 2008

Sechrest v. Ignacio, No. 04-99004 (12-5-08). The 9th (Pregerson joined by W. Fletcher and Berzon) finds prosecutorial misconduct by the state prosecutor. In a capital case, the prosecutor argued that the state board of parole would release the petitioner if he did not receive death. The 9th admonished the prosecutor for such misstatements and granted relief from the death sentence. The 9th also reversed itself in a prior memorandum decision in holding that certain claims were precluded; a subsequent 9th en banc opinion held that the state supreme court had not been clear and consistent in enforcing procedural waiver in this pre-AEDPA case. The previous claims, deemed waived, are reinstated. The 9th did not find Miranda violations, as the petitioner gave ambiguous responses to questions whether he wanted to talk, and the officers asked appropriate follow up questions.

Congratulations to the FPD Nevada (las Vegas) office: Franny Forsman, Tiffany Murphy and Mike Peschetta.
Chambers v. McDaniel, No. 07-15773 (12-9-08). The 9th (Timlin joined by Graber) grant a petition from a Nevada petitioner for a due process failure in the jury instruction for first-degree murder. The petitioner was convicted of first-degree murder and use of a deadly weapon, and got two LWOPs. He had received a death sentence from the state trial court, which the state supreme court had vacated. The petitioner raised a post-conviction challenge, without this claim being raised. He did raise it later in an extraordinary writ, which the court seemed to consider on its merits in a brief denial. The 9th finds that the issue was exhausted. Turning to the merits, the state instruction fails to distinguish between premeditation and other forms of homicide, and it is aggravated by the prosecutor's argument. The 9th follows the precedent set forth in Polk. There was prejudice because there was evidence of self-defense in the stabbing. Wallace dissented, arguing that the claim was unexhausted.
Congratulations to AFPD Linda bell of the Las Vegas FPD Office.

Sunday, December 07, 2008

Case o' The Week: Ninth Reverses Death Penalty for Prosecutorial Misconduct, Sechrest

Pregerson, Berzon, and Fletcher: oh my. What happens when a death penalty case involving "flagrant" prosecutorial misconduct comes before this panel of the former -- and future -- Lions of the Left?

Sechrest v. Ignacio, __ F.3d __, 2008 WL 5101988 (9th Cir. Dec. 5, 2008), decision available here.

Big win by Las Vegas, Nevada Defender Franny Forsman, and AFPDs Tiffany Murphy and Michael Pescetta.

Facts: Sechrest murdered two young girls and was convicted in a Nevada trial in ‘83. Id. at *1-*2. During voir dire, the prosecutor made two (false) statements about the possibility of release even with an LWOP sentence. Id. at *2. During penalty phase closing arguments, the prosecutor made two more (false) statements about the ability of a defendant to be released despite an LWOP sentence. Id. at *3. The jury returned death penalty verdicts for each murder. Id. at *4. Sechrest brought appeals and habeas petitions: this was his third petition (in a pre-AEDPA) case. Id. at *5-*6.

Issue(s): “Sechrest argues that the prosecutor’s statements regarding the likelihood of Sechrest’s release from prison by parole misled the jury and violated his Sixth and Fourteenth Amendment due process right to a fair trial.” Id. at *11.

Held: “After examining the entire record, we hold that the prosecutor's repeated misstatements regarding the likelihood of Sechrest's release from prison by parole were he to be sentenced to life without the possibility of parole violated Sechrest's due process right to a fair trial, and that the violation had substantial and injurious effect on the jury's sentencing decision, carried out by the trial judge, to impose the death penalty. Accordingly, Sechrest must be resentenced.” Id. at *12.

Of Note: This decision focuses on prosecutorial misconduct, but there’s a wacky side-issue about a defense shrink who examined the defendant. The defense did not call this doc. With defense permission the prosecutor then used this shrink during the penalty phase. The “defense” doc testified that Sechrest was an “incurable sociopath” who had a “callous disregard for human life.” Id. at *16.

(Self-evident) practice note: allowing a prosecutor within a mile of a defense shrink who uses phrases like “incurable sociopath” is “ineffective assistance of counsel.” Id. at *16 & n.12, *18 (“[D]efense counsel had absolutely no obligation to disclose Dr. Gerow’s confidential report to the prosecution.”)

How to Use: Sechrest is useful outside of the habeas context for its stern language on prosecutorial misconduct. First, Judge Pregerson explains that the prosecutor’s lies about Sechrest’s likely ultimate release from prison “constituted improper testimony.” Id. at *13. Three aspects of these arguments made them particularly dangerous: they were extrinsic to the case, they were false, and they were buttressed by the prestige of the prosecutor’s official position. Id. “By vouching for the truthfulness of his own unsupported, inaccurate assertions, the prosecutor committed flagrant misconduct.” Id. at *14.

Calling the defense a “fraud” and putting the “burden” of danger to future children on the shoulders of the jury was taboo, too: “Bottom line: the prosecutor misled the jurors to believe that if they did not impose the death penalty, Sechrest could be released on parole and would kill again. In making his erroneous assertions, the prosecutor gave improper testimony, used his position as an attorney ‘for the people’ to vouch for that improper testimony, and most likely inflamed the passions of the jury.” Id. at *15.

This is potent stuff: tying prosecutorial misconduct to constitutional violations garners a habeas win, here. In any trial, however, using this robust language from Sechrest to “constitutionalize” objections to prosecutorial misconduct will help earn a more-favorable standard of review on appeal.

For Further Reading: The Hon. H.P., a kind man, doesn’t name the prosecutor in this “flagrant” misconduct opinion. From a systemic perspective, however, this omission dilutes the deterrent impact of the case. For an interesting article on the conundrum (and some suggestions on remedies), see Sonja Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, article available here.

Image of Judge Berzon from Image of Judge W. Fletcher from

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


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Friday, December 05, 2008

U.S. v. Murillo, No. 07-50462 (12-1-08). Many state sentencing schemes allow for suspension of sentence with imprisonement for a year as a condition of probation. That was done here. This was a no-no. The Federal Sentencing Reform Act, and the Guidelines, do not allow for such a suspension. See also U.S. v. Mueller, 463 F.3d 887 (9th Cir. 2006). The sentence was vacated, and remanded for resentencing before a different judge.

Monday, December 01, 2008

U.S. v. Blixt, No. 07-30198 (11-26-08). What's in a name? If it is a forged signature, the possible charge of aggravated identity theft. The 9th (Rawlison joined by Graber and Wright) holds that the forging of 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." Here, the defendant forged another's signature on a number of checks. At trial, she argued that a signature is not a means of identification, like a SSN or a driver's license. The signature is just not "a series of lines, curves, and squiggles," but the very essence of identification. Even if the signature is not used by the bank to process the check, it is still a means of identifying the payor, and therefore falls under the statute.

U.S. v. Weyhrauch, No. 07-30339 (11-26-08). This is an interlocutory appeal related to a possible honest services mail fraud. The defendant is a lawyer and was an Alaskan state representative in 2006. The legislature was dealing with oil taxes at the time, and he sent letters to an oil company concerning future legal work if he voted the way they wanted. The indictment alleged no actual compensation or favors, but alleged facts suggesting that he acted favorably to the oil company on the understanding that he would be hired in the future. No actual bribery took place; but the defendant never disclosed any conflicts of interest. There were legislature ethics rules, but no state laws regarding such disclosures. Some of the government's charges were dismissed and this case taken up. The 9th (Fisher joined by Tashima and D. Nelson) hold that a prosecution for federal honest services mail fraud under 1341 and 1346 does not require a state law violation. The case revolves around the definition of "honest services" and the circuits have split on whether there must be a specific state law that is violated (5th Circuit), a violation of a fiduciary duty established by state or federal law (3rd Circuit) or whether honest services is governed by a uniform federal standard inherent in 1346 (4th, 7th, 8th, 10th, and 11th Circuits). The support for a limiting principle is to establish boundaries, and to prevent the federal government from interfering with local or state government. The statute and congressional intent does not seem to narrow the scope, and so the 9th joined the majority of circuits in holding that 1346 establishes a uniform standard for honest services that applies to every public official, and is not limited by a requirement of violation of state laws. As a result, the 9th also reverses the district court's exclusion of certain evidence that goes to proving a violation of honest services even though the evidence is not related to any state law violation. The 9th finally finds that the government managed to appropriately certify this issue on the fourth try.