Case o' The Week: The Fourth, the Ninth, and the Tenth: New 4th Amendment Standing Rule in Ninth Circuit, SDI Future Health

In a case that presents more Fourth Amendment issues than a CrimPro exam, the Ninth Circuit imports a Tenth Circuit test to create a new rule for gauging the standing of corporate employees to challenge a search within a business. United States v. SDI Future Health, Inc.,__ F.3d __, No. 07-10261, 2009 WL 174910 (9th Cir. Jan. 27, 2009), decision available here.

A must-read for white collar folks.

Players: Decision by Judge Diarmuid F. O’Scannlain (left), joined by Judges Hawkins and McKeown.

Facts: Feds suspected Medicare and tax fraud within SDI Future Health Services, and got a search warrant for the company. Id. at *1. The corporate-executive defendants successfully challenged this search when they were later prosecuted. Id. at *2. The government took an interlocutory appeal. Id. at *3.

Issue(s): “We must decide whether corporate executives may challenge a police search of company premises not reserved for the executives’ exclusive use.” Id. at *1. “The government . . . argues . . that [the defendants] lack standing to challenge the search and seizure of materials from SDI’s premises. According to the government, the mere ownership and management of SDI, and the steps SDI took to preserve the security of its business files, are inadequate to support the conclusion that [the corporate executive defendants] personally had an expectation of privacy in the search areas and seized materials.” Id. at *3. “[T]his case presents the novel issue of the extent to which a business employee may have standing to challenge a search of business premises generally.” Id.

Held: “[W]e conclude that, except in the case of a small, family-run business over which an individual exercises daily management and control, an individual challenging a search of workplace areas beyond his own internal office must generally show some personal connection to the places searched and the materials seized. To adapt [United States v.] Anderson, [154 F/3d 1225, 1230-32 (10th Cir. 1998)] although all the circumstances remain relevant, we will specifically determine the strength of such personal connection with reference to the following factors: (1) whether the item seized is personal property or otherwise kept in a private place separate from other work-related material; (2) whether the defendant had custody or immediate control of the item when officers seized it; and (3) whether the defendant took precautions on his own behalf to secure the place searched or things seized from any interference without his authorization. Absent such a personal connection or exclusive use, a defendant cannot establish standing for Fourth Amendment purposes to challenge the search of a workplace beyond his internal office.” Id. at *5 (footnotes omitted). “The district court’s grant of the motion to suppress must be reversed and the matter remanded for further fact-finding.” Id. at *7.

Of Note: The new rule of SDI is an imported 10th Circuit standing test. There are, however, many additional Fourth Amendment sub-issues in the decision. Judge O’Scannlain discusses the incorporation of affidavits into search warrants – and finds that the affidavit was incorporated in this warrant. Id. at *8-*9. The decision also explains the difference between “particularity” and “overbreadth” in a search warrant challenge – and finds that several categories of the warrant were in fact overbroad. Id. at *10. Finally, the opinion expounds on severance of a search warrant, allowing for a partial suppression of materials seized from overbroad categories of the warrant. Id. at *13-*14. All in all, an expansive Fourth Amendment decision.

How to Use: White-collar counsel (and P.D.s who inherit these clients when retainers are tapped) will want to read SDI carefully. Note that the decision doesn’t strip corporate executives of all standing to challenge a search of a business: here, the executive-defendants still had “standing to challenge the admission of any evidence obtained from their own, personal, internal offices.” Id. at *7. Also, the opinion’s many footnotes merit close attention. For example, notes six and eight concede that these new standing factors are not exclusive. Id. at *5-*6, nn. 6 & 8.

For Further Reading: SDI was the most important case of the week: Quon, the most interesting to read. The panel for the great Quon v. Arch Wireless decision (cops and pager searches) fended-off an en banc attempt, prompting a dissent from the denial of rehearing en banc by Judge Ikuta (right). This in turn sparked a blistering “concurrence” in the denial of rehearing en banc by Judge Kim Wardlaw (left). See Judge Wardlaw's concurrence here.

Here’s Judge Wardlaw’s memorable first line: “No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal.” Id.




Image of the Hon. Diarmuid O'Scannlain from http://law.lclark.edu/org/bov/oscannlain.html. Image of the Hon. Sandra Ikuta from http://ms-jd.org/blogs/212. Image of the Hon. Kim Wardlaw from http://www.abovethelaw.com/2008/02/

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

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U.S. v. SDI Future Health, Inc., No. 07-10261 (1-27-09). Can corporate executives challenge police searches on corprorate premises where the executives did not have exclusive use? In other words, it is time for another 4th Amendment "test." This case was on an interlocutory appeal, involved a Medicare scam (double billings, billings for services not rendered, etc.). The 9th (O'Scannlain joined by Hawkins and McKeown) reviewed the district court's suppression order. The search warrant with sealed affidavit had a broad search of the corporate headquarters (rolodexes, calendars are two examples). On appeal, the government argued that the executives lacked standing. The 9th does remand on this issue and, in so doing, fashions a new test looking at the employee ownership interests in the property, whether it was in the immediate control of the employee, and privacy interests. The test came from the 10th Circuit's case, U.S. v. Anderson, 154 F.3d 1225 (10th Cir. 1992). The 9th also affirmed the suppression of some items as being swept in under a too broad category (the rolodexes, for example). The items should have had a connection to the offense, such as documents involving physicians, or billing.

Case o' The Week: Cal Burglary Convictions not "Violent" Felonies under USSG § 2L1.2, Aguila-Montes de Oca

A big defense win by the San Diego Defender knocks California burglary convictions out as "violent" offenses triggering a sixteen offense level increase under USSG § 2L1.2. United States v. Aguila-Montes de Oca, __ F.3d __, No. 05-50170, 2009 WL (Jan. 20, 2009), decision available here.

Players: Big win for San Diego AFPD Vince Brunkow, with assist by Steve Hubachek. Decision by Judge Thompson, (brief) dissent by Judge Gould.

Facts: After trial Aguila-Montes was sentenced 120 months for illegal reentry. Id. at *1. That whopping sentence was triggered by a +16 offense level increase for a California first degree burglary conviction (Penal Code § 459), characterized by the district court as a “crime of violence.” Id.

In the first panel decision, Judge Thompson wrote that this § 459 conviction qualified for the +16 OL bump under the “modified categorical approach.” 523 F.3d 1071, 1078 (2008) (withdrawn). Aguila-Montes petitioned for rehearing: the January 20th decision that is the subject of this memo is the revised decision.

Issue(s): “Aguila-Montes argues that because this 1988 state conviction could have been based upon criminal liability for conduct not included within the definition of burglary of a dwelling in section 2L1.2 of the Guidelines, the district court erred in applying the sixteen-level sentence enhancement.” Id. at *1.

Held: “Because California Penal Code section 459 does not require that an entry in the burglary context be ‘unlawful or unprivileged,’ the California statute lacks an element included in the generic definition of burglary of a dwelling incorporated into the Guidelines. Using a categorical approach, the two offenses do not ‘match.’ The modified categorical approach may not be applied to establish the missing element, and as a result, Aguila-Montes’s state conviction of first degree residential burglary is not a prior conviction of a crime of violence under section 2L1.2(b)(1)(A) of the Guidelines.” Id. at *4.

Of Note: The San Diego Defender deserves recognition for this victory, and for its aggressive litigation strategy on this issue. Attorneys in that office have been hanging tough on cases that involve a California burglary as a +16 OL specific offense adjustment – and are now being rewarded with better offers or great prospects on appeal. It is interesting to speculate how much custody time this decision will save illegal reentry defendants in border districts: many, many decades, safe to say.

How to Use: The important new rule of Aguila-Montes de Oca is that California burg convictions can never be +16 OL “violent” felonies in illegal reentry cases. The decision is also important, however, for its solid endorsement of the broader Navarro-Lopez rule: in the Ninth Circuit, if a state conviction doesn’t include the elements of the “generic” crime in the Taylor categorical analysis a court can’t move on to the modified categorical analysis. See blog here on Navarro-Lopez.

That broader Navarro-Lopez principle is a welcome rule far beyond the illegal reentry context; it is a limitation that squarely applies in Career Offender, ACCA, and 2K2.1 (felon in possession) cases as well.

For Further Reading: This win was a long time coming, and was presaged by Judge Milan Smith in his dissent in Snellenberger. See blog here.

Is the victory safe? Appellate guru Steve Hubachek thinks so: he notes that the Ninth unanimously relied on Navarro-Lopez’s reading of Taylor in Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159 (9th Cir. Oct. 20, 2008) (en banc). The application of Taylor and Navarro-Lopez in the immigration context may remain controversial (see the cert. grant in Nijhawan v. Mukasey, blog summary here) but the dust has now settled on the Navarro-Lopez rule for criminal cases (at least in the Ninth).


Image of California Penal Code from http://upload.wikimedia.org/wikipedia/commons/b/b5/Californiapenalcode.jpg

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


NB: On February 3, 2010, the Ninth Circuit granted the government's petition for rehearing en banc on Aguila-Montes de Oca:

02/03/2010

FILED ORDER FOR PUBLICATION (ALEX KOZINSKI) UPON THE VOTE OF A MAJORITY OF NONRECUSED ACTIVE JUDGES, IT IS ORDERED THAT THIS CASE BE REHEARD EN BANC PURSUANT TO CIRCUIT RULE 35-3. THE THREE-JUDGE PANEL OPINION SHALL NOT BE CITED AS PRECEDENT BY OR TO ANY COURT OF THE NINTH CIRCUIT.[7218682] (RP)

Be sure to check the status of this opinion before citing it.

~SGK

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U.S. v. Orlando, No. 07-50473 (1-23-09). This is a disappointing opinion that applies Irizarry, the Supreme Court case that held that notice for a sentencing variance is not required. The defendant faced a guideline range of 27 to 33 months for tax evasion. The court imposed a 40-month sentence. Defendant appealed, arguing that it was a departure, not a variance (he lost on that one); and that the court failed to grant him a continuance to respond to the court's concerns and intent. In dismissive language, the 9th shrugged (Farris joined by Wardlaw and Schwarzer). The 9th held that indeed Irizarry had language indicating a court should grant a continuance if requested. Irizarry actually lays out a test, finding an abuse of discretion if the court fails to grant a continuance if the variance is based on (1) facts that amount to a prejudicial surprise; (2) without considering a continuance; and (3) where advance notice might have affected evidentiary presentation. Quite surprisingly, the 9th seems to apply this test in a cursory conclusory manner, holding that the test was not satisfied because the facts were in the PSR (on SR release-, long criminal history, need for deterrence, seriousness of crime, and so forth -- although one could argue that all those factors have been taken into account in the Guidelines, and therefore a variance was not necessary). As for the request for a continuance, the 9th also finds that a continuance was not necessary in this "garden variety," "run of the mill case" because defense counsel should have, or could have, anticipated a possible variance. The defense counsel failed to say exactly what he needed the time for except to respond. The variance of 7 months may not seem like a lot, but when the guideline is only 27 to 33 months, it is substantial. The Supremes stressed in their sentencing cases the need for an adversarial proceeding and fact development; Irizzary was an aberration, but could be explained by looking at the development of facts, and the discretion of the court to grant a continuance. This opinion loses sight of the purpose of sentencing in its cite, and adopts a far too expansive view of the test. The opinion may have been meant to keep the criminal justice system moving, but it loses sight of the purpose. One result of this opinion may be a slowing down of the process as counsel either assumes the worse, or pleas or struck that take discretion from the court.

U.S. v. Esparza, No. 07-50293 (1-20-09). This opinion deals with supervised release conditions in a child pornography case. Specifically,the failure of the sentencing court to make specific findings to support conditions that could mandate the taking of all prescribed medication, and physiological testing, and the delegation of the potential for inpatient treatment. The 9th per curiam (Graber, Clifton and Trager) vacated these conditions and remanded for the court to support its findings. The court in sentencing unduly burdens liberty interests in requiring medication that could adversely affect liberty interests, and there needed to be more specificity. The same with physiological testing. Inpatient treatment cannot be delegated to the probation officer, and that condition is stricken. The court, however, may choose to mandate inpatient treatment but it has to make findings and not delegate the power to the probation officer.

U.S. v. Bond, No. 06-50628 (1-20-09). The 9th (O'Scannlain joined by Thompson and Tallman) affirm a conviction, holding that the failure of the government to call a witness that might have had favorable testimony was not a Brady violation. This was a fraud case. One of co-defendants' partners was charged in Florida, and he plead and testified against another co-defendant. The government listed the cooperating witness on its witness list, gave summaries, and provided information as to the court reporter and transcript in Florida. The defendant made no attempt to subpoena the witness, and relied upon the government to call him. The government did not. The 9th found that this failure was not a Brady violation, and that the defendant could not force the government to call a witness. The defendant was aware of the witness and could have acted to secure his presence.

U.S. v. Aguila-Montes De Oca, No. 05-50170 (1-20-09). The 9th grants a rehearing in this case, and issues a new opinion, wherein it still finds that the defendant's prior California burglary is not a crime of violence under the Guidelines because, under the state scheme, an entry for a burglary does not require it to be unlawful or unprivileged. The prior decision of Navarro-Lopez controls, 503 F.3d at 1073. Gould continues to dissent, arguing that the court went too far in applying the categorical approach.

Case o' The Week: Judge Graber Urges a "Liberal" Reading in a Criminal Case, Awad and Sufficiency of the Indictment

In Awad, Judge Susan Graber (left) urges a "liberal" approach in a criminal case. Honest. Unfortunately for Awad, however, Judge Graber is referring to a "liberal" reading of a deficient indictment; a reading which allows fraud convictions (and a 180 month sentence) to stand. United States v. Awad, __ F.3d __, 2009 WL 47054 (Jan. 12, 2009), decision available here.

Players: Decision by Judge Susan Graber.

Facts: Dr. Awad billed Medicare millions for the treatment of (mostly) mentally-ill patients in board and care facilities. Id. at *2. His billing forms, turns out, were predetermined and preprinted – 100% of patients seen “needed” the same services. Id. At times over 90 patients were “seen” in a day. Id. Awad was charged with a scheme to defraud Medicare (§ 1347) and money laundering using health care fraud proceeds (§ 1956 (a)(1)(A)). Id. at *3. After his conviction at trial, Awad moved for judgment of acquittal because the indictment did not use the word, “wilfully” with respect to the health care fraud allegations. Id.

Issue(s): “Defendant asserts on appeal that the indictment was insufficient; that the indictment was multiplicitous [and] that the jury instructions erroneously stated that the jury need not find that Defendant knew his actions were unlawful and that the error was prejudicial . . . .” Id. at *1.

Held: 1. Sufficiency of the Indictment: “[H]ere, an inference of willfulness is obvious because of the facts alleged in the indictment. . . . [A]lthough the word ‘willfully’ does not appear in the indictment, sufficient facts were pleaded so that any reader would infer that Defendant acted with a bad purpose.” Id. at *4. “Omission of the word ‘willfully’ was not fatal, as the indictment sufficiently informed Defendant of the charges against him because of the nature and specificity of the facts alleged.” Id.

2. Multiplicity: “[T]he indictment charging 24 counts of health care fraud was not multiplicitous.” Id. at *6.

Of Note: Judge Graber’s “liberal” reading of a deficient indictment traces back to an important Ninth Circuit decision, United States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999). Du Bo’s rule is that, “if properly challenged prior to trial, an indictment's complete failure to recite an essential element of the charged offense is not a minor or technical flaw subject to harmless error analysis, but a fatal flaw requiring dismissal of the indictment.” Id. at 1179 (emphasis added). Apprendi litigation taught us that the timing of an indictment challenge is everything. If the defense doesn’t bring a challenge to the sufficiency of the indictment before trial, it loses the bite of structural error and the challenge will collapse into the deferential mush recited in Awad. See United States v. Velasco-Medina, 305 F.3d 839, 846-47 (9th Cir. 2002).

After the Supreme Court’s decision in Cotton, other circuits have held that failure to raise a challenge to the sufficiency of the indictment before trial demotes the attack to plain error review. See, e.g., United States v. Sink, 473 F.3d 1315, 1317 (10th Cir. 2007) (distinguishing United States v. Prentiss, 256 F.3d 971, 982 (10th Cir. 2001) (en banc)). This is a frustrating rule, from the defense perspective: we must teach AUSAs how to clean-up their shoddy indictments before trial, or (effectively) surrender our indictment challenges.

How to Use: The indictment here didn’t allege “willfulness,” and the jury instructions flatly screwed-up the “willfulness” definition. Id. at *7-*8. The conviction, however, still survives harmless error review! Nonetheless, among the harmless errors weeds there is a mens rea rose or two in this decision.

It was error for the district court to instruct, “[t]he government is not required to prove that the defendant knew that his acts or omissions were unlawful.” Id. at *8. Instead, a health-care fraud defendant is entitled to a general instruction that “‘willfully’ means that a defendant knew his or her conduct was unlawful.” Id. at *7. One must tease this principle out of the harmless error discussion of Awad, but the principle is there: a health care fraud defendant must know that his or her conduct was unlawful in order to have acted “willfully.”

For Further Reading: Judge Graber is generally seen as a tough defense draw. Her mens rea dissent in Heredia was thus particularly notable. In Heredia (that en banc willful blindness debacle, on the Jewell instruction) Judge Graber’s dissent was forceful, blunt, and persuasive: she would require proof of a “knowing or intentional” mens rea in federal drug cases. For a good summary of a great dissent, see a thoughtful blog here.


Image of Judge Susan Graber from http://www.abovethelaw.com/susan_graber/


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

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U.S. v. McCaleb, No. 06-50387 (1-13-09). Verdict forms can be confusing. Defendant faced drug charges for running a clandestine meth lab. Defendant conceded count two (precursor drug possession) but argued for a lesser on the conspiracy charge. The jury returned a verdict form that checked both the greater charge and lesser. The court, without objection, sent the jury back, with a clean verdict form, after explaining the ambiguity. The jury came back with the guilty verdict on the greater. The 9th (Bright joined by Trott and Hawkins) affirmed, finding that court acted properly to clear up the confusion and in reconvening the jury, did not coerce them. The 9th also found no error in the jury instructions, nor in the admission of "expert" testimony by a DEA chemist on the yield of PCP from such clandestine labs (a conservation 25% yield from chemicals).

U.S. v. Shelby, No. 07-30183 (1-15-09). Marital aid is fine, so long as it does not lead to conflicts of interest, and violation of 18 U.S.C. 208, false statements, and wire fraud. The defendant was a manager in Bonneville Power Administration, which is a federal agency that produces and transmits power throughout the Northwest. The agency had a contract with a software company. Defendant is married, and she approached the company about hiring her husband, who was a salesman, and he was assigned to the Bonneville account. This starts the conflicts of interests, because she pushed for extensive use of the software and excused performance issues. Charged and convicted, she appeals, arguing that there was insufficient evidence. The 9th, in a per curiam opinion, affirms, holding that "conflict" is read broadly, and the evidence here was sufficient to show there was conflicts of interest, even if the contract had been entered into previously. The conflict was also material.

U.S. v. Kaczynski, No. 06-10514 (1-9-09). This case involves the Unabomber, and the sale of seized property to satisfy restitution. The victim restitution statute survives the defendant's facial challenges, and as applied arguments. His First Amendment rights are not curtailed, and by getting copies of his papers, which will be sold, he still can express his ideas.

U.S. v. Awad, No. 06-50578 (1-12-09). The defendant was charged and convicted of numerous counts of Medicare fraud. Defendant authorized medical treatments without really examining the patients, especially in regards to respiratory ailments. Convicted, he appealed, alleging errors in the indictment and jury instructions. The 9th (Graber joined by Clifton and Reed) affirm, holding that the indictment did indeed omit the word "wilful" from the charge, but the facts alleged made clear that the defendant's acts were done with a bad purpose. The jury instructions also omitted "wilful," and stated that the defendant need not know his acts were unlawful. This was error, but it was harmless because the evdience and the acts of the defendant clearly show that he was acting unlawfully, and with knowledge of his unlawful acts. The sentencing enhancement he received was also affirmed because he did put his patients in physical danger by his rubber stamp actions.

Case o' The Week: Ninth's blow to Kimbrough, Gonzalez-Zotelo and fast-track disparities

A disappointing decision authored by Judge Barry Silverman (left) deepens a circuit split on the scope of a district court's sentencing discretion after Kimbrough. See United States v. Gonzalez-Zotelo, __ F.3d __, 2009 WL 37144 (9th Cir. Jan. 8, 2009), decision available here.

Players: Hard-fought appeal by San Diego AFPD Steve Hubachek.

Facts: Gonzalez-Zotelo was denied a fast-track offer because of a prior conviction for lewd & lascivious acts with a child. Id. at *1. Earlier on the day he was sentenced, another illegal-reentry defendant – with armed robbery priors – was sentenced by the same judge to thirty months on a fast-track deal (about half of Gonzalez-Zotelo’s guideline range). Id. Unable to rationalize these disparities, the district judge sentenced Gonzalez-Zotelo to thirty months. Id. The government did not object to the lower sentence on this basis, then took this appeal. Id. at *2.

Issue(s): “The government argues that it was unreasonable for the district court to base its sentencing decision solely on disparities between a defendant who did not receive a fast-track plea offer and a defendant who did.” Id.

Held: “Because the district court erred when it imposed a lower sentence on Gonzalez-Zotelo based solely on what it misperceived to be unwarranted sentencing disparity, we vacate the sentence and remand for re-sentencing. Under our cases, the disparity in question is indeed warranted, because it is justified by Congress’s approval of fast-track plea bargaining programs.” Id. at *1.

Of Note: In Gonzalez-Zotelo, Judge Silverman places the Ninth on the wrong side of growing circuit split by rejecting the discrepancies in fast-track offers as a basis for a reduced sentence. Id. at *3. This important new rule is set forth in, respectfully, an unpersuasive decision. The opinion looks back to a pre-Kimbrough case, United States v. Marcial-Santiago, 447 F.3d 715, 719 (9th Cir. 2006), for the proposition that the government’s often-whimsical decisions on which defendant receives a fast-track offer is not a basis for a reduced sentence. Id. at *2. How Marcial-Santiago survives Kimbrough, however, is a head-scratcher. The opinion distinguishes the Supreme Court case by concluding that Kimbrough authorizes variances when a district court disagrees with a Guideline – but not Congressional policy. Id. at *3.

The biggest problem with this distinction, however, is that Congress didn’t articulate the (arbitrary) distinctions that new AUSAs concoct to deny the fast-track offer. As Hubachek has pointed out, Congress (or the Commission) said nothing about unaggravated PC § 288 crimes being ineligible for fast-track, but knife-wielding robbers being entitled to the break. The discrepancy in this case was created by the government – not Congress – and that disparity has long been a sound basis for a reduced sentence. See, e.g., United States v. Daas, 198 F.3d 1167, 1180-81 (9th Cir. 1999) (“Downward departure to equalize sentencing disparity is a proper ground for departure under the appropriate circumstances.”)

A threshold question, however, is how the government ever survived plain error review in this case? Hubachek astutely observes that when the defense is fighting plain error, a circuit split has been the kiss of death. See United States v. Miranda-Lopez, 532 F.3d 1034, 1040-41 (9th Cir. 2008) (Silverman, J.). Again, with all respect, seems tough to reconcile the Miranda-Lopez plain-error approach with Gonzalez-Zotelo. Gonzalez-Zotelo creates broad new Ninth sentencing law, deepens a circuit split, and is inconsistent with very recent law on plain error. It deserves a second look en banc.

How to Use: Because the Supremes may someday resolve this circuit split arguments based on fast-track disparities are worth preserving. A prudent approach, however, would to be to urge different bases for imposing the same sentence, on less-controversial grounds. The district court here could have broadly stated that it considered the Section 3553(a) factors, reflected on the unique facts of the prior conviction (see United States v. Sanchez-Rodriguez, 161 F.3d 556, 561-62 (9th Cir. 1998)) and imposed the lower sentence on those grounds. While the full scope of Kimbrough is being slugged-out, prudent to urge belt-and-suspender sentencing departure/variance bases.

For Further Reading: For various commentary on Gonzalez-Zotelo, visit Professor Berman’s sentencing site here.


Image of the Hon. Barry Silverman from http://www.eastvalleytribune.com/story/96288


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


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U.S. v. Gonzalez-Zotello, No. 08-50010 (1-8-09). This is a disappointing decision regarding 3553(a)(6) factors, "fast-track," and variances to correct unwarranted fast-track disparities. The defendant was not given a fast-track plea because of a prior sex offense. The court, at sentencing, did vary, and imposed the same sentence (30 mos.) that he had imposed on a fast-track defendant who had two prior armed robberies. The court reasoned that there was no basis for such unwarranted disparity. The 9th (Silverman joined by Bea and Conlon) disagreed, and vacated and remanded for resentencing, even under a plain error review. The 9th shrugged at Kimbrough, acknowledging that it sanctioned policy disagreements with the Commission, but that it did not overturn circuit precedent that resteddon congressional mandate. Congress, in the infamous PROTECT Act, had blessed fast-track disparity, and so it still controls. Kimbrough, one could argue, did deal with Congressional intent with crack sentences, but the 9th chose not to go that way. Moreover, one could further argue, fast-track was pre-Booker, entangled with the guidelines, counter to 3553 purposes, and directed to churning pleas rather than sentencing. The 9th even found this to be such an error that it excused the government's failure to object. In short, the 9th held that this was one variance basis that was off-limits. Still, the focus of the decision was on the variance based solely on the disparity between fast-track and non-fast-track. This holding is narrow, and leaves open, as it must, the argument that the guidelines for non-fast-track are too high, unreasoned, and unprincipled, and that, arguably, a fast-track sentence is a more appropriate measure of punishment than the present 1326 guidelines.

U.S. v. Heller, No. 07-30452 (1-8-09). This is an appeal from a conviction for receipt and possession of child pornography. The defendant argued sufficiency of the evidence, stating that the evidence showed he did not receive nor possess the contraband because the developmentally disabled man he was caring for was responsible. The 9th (McKeown joined by Hawkins and Bybee) held there was sufficient evidence, and that the defendant had controlled and directed the disabled man to act for him. The 9th also held that the confession of the defendant was not involuntary, given the repeated assurances that he was not under arrest, and the friendly and courteous manner in which the interview was conducted. Lastly, the failure to rule on an in limine motion was moot because this was a bench trial.

U.S. v. Collins, No. 06-50339 (1-7-09). Batson comes to the 9th again. This was a drug conviction, in which the government struck the only remaining African American. The defendant asked for justification, arguing that a prima facie Batson showing was made. The court said "no" because the defense had struck an African American, and there was no pattern shown as the prosecutor only struck one African American (albeit the only remaining one). The 9th (Gibson with a concurrence by Graber) reversed and remanded for an evidentiary hearing. The 9th reasoned that patterns and statistics were meaningless when there is only a sample of one. Adding to the difficulty is the fact that the court conducted the voir dire (another argument for attorney participation in voir dire). However, looking at other jurors similarly situated, and the totality of circumstances, the 9th felt that the defendant had met his burden, and so the government has to set forth its reasons at a hearing. The other grounds on appeal concerned the suppression of an audiotape recording that supposedly helped prove an entrapment defense, and the government's refusal to accept a subpoena for a witness of uncharged activities that supposedly supported the entrapment charge. The 9th affirmed the court's rulings on those claims. The defendant had notice of the recording's substance, and that a threat had been made, which was brought out at trial. As for the witness, the defendant knew of him before disclosure was required, and the government was not preventing or impending him from testifying. He was just ducking process. Graber, concurring, emphasizes the better practice for the prosecutor to state his reasons for striking jurors at the time of a Batson challenge. Dissenting, O'Scannlain argues that the majority applied the wrong standard of review -- a de novo rather than clear error. O'Scannlain would use a clear error because the district court later, at a new trial motion, stated that there was no justification or inference of discrimination, hence there was a finding.

Case o' The Week: Duncan Do-Nots: 28 years for Sex Registration Offense Grossly Disproportionate

Judge Bybee, (right) joined by Judges Kleinfeld and Canby, end 2008 with a bang: with an Eighth Amendment habeas reversal of a California sex-registration sentence. See Gonzalez v. Duncan, __ F.3d __, No. 06-56523, 2008 WL 5399079 (9th Cir. Dec. 30, 2008), decision available here.

Players: Big victory by CD Cal. Federal Defender Sean Kennedy and Deputy FPD Gia Kim.

Facts: Petitioner Gonzalez was charged with two felony counts of failing to register, strikes were alleged, and Gonzalez decided to go pro per. Id. at *1. He turned down a two-year offer, and went to trial. Id. The jury acquitted on the failure to register a change of address, and convicted on failure to register within five working days of Gonzalez’s birthday. Id. at *2. (He had registered within three months of his birthday). Id.

He was sentenced to twenty-eight years to life, and lost his state appeals and his federal habeas petition in the district court. Id. at *2-*3.

Issue(s): “On habeas review, we must decide whether his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment and, if so, whether the contrary conclusion of the California Court of Appeal constituted an unreasonable application of clearly established federal law.” Id. at *1.

Held: “[W]e . . . conclude that Gonzalez’s sentence is grossly disproportionate to his offense. We further conclude that the California Court’ of Appeal’s decision affirming Gonzalez’s sentence constitutes an unreasonably application of clearly established federal law under 28 U.S.C. § 2254(d)(1).” Id.

Of Note: In Gonzalez authoring Judge Bybee (joined by Judges Kleinfeld and Canby) delves the “gross disproportionality” principle of the Eighth Amendment. Id. at *3. Judge Bybee surveys five Supreme Court decisions for “guidance on how gross disproportionality review operates in practice.” Id. He concludes that the “gross disproportionality” principle is clearly established – but “the details are not.” Id. at *6. To help flesh out these details, Judge Bybee logically turns to how the Ninth Circuit has approached this corner of Eighth Amendment law. Id. at *6.

Logical to look to the Ninth, yes, and done by federal habeas courts all the time – but technically allowed under AEDPA? In Carey v. Musladin, 549 U.S. 70, 74 (2006), the “button” habeas case, the Ninth’s citation of its own precedent was a little sub-issue that got batted around a fair bit. As demonstrated here in Gonzalez, however, it is tough to divine the “details” of a “clearly established” Supreme Court decision without considering circuit court authority. This is particularly true in our era of fractured Supreme Court decisions, where plurality is the rule, not the exception. Maybe it is O.K. to cite circuit authority if one does so quietly, or inconspicuously (small font? a footnote?)

Good old AEDPA: the only area of law that makes the Rule Against Perpetuities seem intuitive, by comparison.

How to Use: Gonzalez turned down an offer of two years; his ultimate sentence was twenty-eight years to life. Id. at *1. The fact that his ultimate sentence was a high multiple of the plea offer he rejected is relevant to determining whether a Three Strike sentence is grossly disproportionate to the triggering offense. Id. at *8 & n.11. If you see an Eighth Amendment claim in your client’s future, document the history of rejected offers.

(Also, along the lines of the observations in the “Of Note” section above, it interesting that Judge Bybee cites Reyes v. Brown – a Ninth Circuit case – for this proposition. ).

For Further Reading: Referring to a circuit decision in a post-AEDPA habeas petition? Do so sotto voce. For an interesting view on what happens when the Ninth is less – discrete – about its reliance on its own authority, see Note, Ninth Circuit Uses Circuit Opinions to Interpret ‘Clearly Established Federal Law', Harvard Law Review, April 2006, available here.

At its core, the Ninth Circuit’s decision in Musladin addressed more than just the surface issue of when a defendant is deprived of a fair trial – the decision likely represents a concern with AEDPA’s ramifications and possibly its constitutionality. The Musladin majority’s decision to indicate that circuit opinions constitute persuasive authority in interpreting federal law, in contravention of the Supreme Court’s reading of AEDPA, signals the circuit’s concerns about the statute.

Id. at 1938.

Maybe with a new Justice or two on the horizon, the Ninth can muster another swipe at this target?


Image of the Honorable Jay Bybee from http://www.abovethelaw.com/2006/11/benchslapped_reinhardt_v_bybee_1.php


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

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