U.S. v. James, No. 07-10122 (2-26-09). Once a juvenile is transferred to adult status, can new charges be added or does another transfer hearing have to take place? The 9th (Clifton joined by Hug and Roth) hold that it would serve little purpose to go back for a transfer hearing when the defendant has already been transferred. In this case, which involved murders, robberies, and sexual assaults on an Indian reservation, the 9th did find, with a government concession, that robbery and second-degree murder were lessers of a felony murder conviction, and so vacated. The defendant is still doing life.

U.S. v. Banks, No. 07-30130 (2-25-09). This is a child porn case, where the interesting issue, and heated exchange, occurs between Rawlison joined by Graber and Alarcon dissenting over the issue of grandparents and marital privilege. Here, as one of several issues, the 9th found that the district court erred in allowing defendant's spouse to testify about communications, but it was harmless. In a spirited dissent, Alarcon argues that the exception to the privilege regarding abuse of children should extend to grandparents. The majority shrinks back from this expansion, noting that the grandparents here were not the functional equivalent of parents.

U.S. v. Esparza-Herrera, No. 07-30490 (2-25-09). The 9th, per curiam, affirms the district court's ruling that the Arizona statute for aggravated assault, 13-1204(A)(11) was not a "crime of violence" under the Guidelines 2L1.2 because it did not correspond to a generic definition. Under the categorical approach, aggravated assault in the state could apply to extreme indifference, and so it fell outside the generic definition. In a concurrence to the per curiam, Gould (joined by Tallman and Callahan) all bemoan the Procrustean bed of the categorical approach, and the restraining shackles of precedent, and wistfully pine for the "common sense" approach of the 5th Circuit which looks at the ordinary and common meaning of the statute.

U.S. v. Nickerson, No. 07-30382 (2-25-09). The defendant was convicted on drug charges. His requests for a new lawyer on the day of, and during trial, were denied. On appeal, the 9th affirms the conviction, and also declines to find that a per se violation of a state's bar ethical rules in IAC. The violation here was when counsel approached and talked to a supposedly exonerating witness who was represented by counsel, and whose counsel repeatedly told defense counsel "back off" and "don't talk to my client."

U.S. v. Kincaid-Chauncey, No. 06-10544 (2-20-09). The defendant was a Clark County Commissioner in Nevada, who received benefits from a strip club owner wanting zoning concessions. A principal witness had credibility issues as to what he paid to whom. Defense counsel asked about the specifics of payments and to whom. Defendant wanted to call witnesses to impeach a witness for answers elicited on defense counsel's questions. The trial court had discretion, allowed two witnesses, but denied the calling of seven others. The 9th affirmed. In an opinion by Bybee (joined by Kozinski and Berzon, who concurred on a different issue), the 9th looks to U.S. v Castillo, 181 F.3d 1119 (9th Cir. 1999) which states that collateral evidence, such as impeachment, can be precluded because the defense elicited the answers, and that counsel may twist the testimony (!) to get such admissions. Castillo's tortured logic is good enough for this panel. The 9th did say that Castillo is not a total bar. Here, the other witnesses were somewhat collateral. The 9th also discussed the requirement of quid pro quo in Hobbs Act extortions and in Honest Services prosecutions. The 9th holds that there must be a quid pro quo to sustain a conviction, and that it goes to specific intent, but that it need not be explicit. Berzon concurs to stress that she would require in conflict of interests honest services prosecutions as written explicit and clear conflict policy in place.

U.S. v. Renterria, No. 07-50471 (2-20-09). The 9th (Thompson joined by Pregerson and D. Nelson) affirm a conviction for an arson of a synagogue. The 9th finds that the arson of a synagogue, or house of worship, does affect interstate commerce for federal jurisdiction.

Case o' The Week: Strip Club Honest Services, Kincaid-Chauncey

Las Vegas strip clubs, "touching" legislation, cash bribes to politicians and federal wiretaps -- the salacious stuff of a new prime time miniseries? Nope: just another day in the Ninth. United States v. Kincaid-Chauncey, No. 06-10544, __ F.3d __, 2009 WL 415567 (9th Cir. Feb. 20, 2009), decision available here. In this interesting decision Judge Bybee creates a good new rule for "honest services" fraud and delves into a theory of prosecution that is ripe for abuse.

Players: Hard-fought case by Las Vegas Federal Defender Franny Forsman.

Facts: Mary Kincaid-Chauncey (above) was a Commissioner for Clark County – the unincorporated area of Vegas. Id. at *1. A local strip club owner was caught on a wiretap, apparently bribing Kincaid-Chauncey for favorable action on legislation affecting the clubs. Id. Kincaid-Chauncey was convicted of Hobbs Act violations and “honest services wire fraud” after an eight-week trial. Id. The district judge refused to allow her to call a number of witnesses, and also rejected defense jury instructions. Id.

Issue(s): 1. Hobbs Act Quid Pro Quo: “Kincaid-Chauncey . . . challenges the jury instructions given on the Hobbes Act charges. She alleges that the district court erred by failing to instruct the jury that an explicit quid pro quo was necessary to convict her of violating the Hobbs Act.” Id. at *10.

2. Honest Services Fraud Quid Pro Quo: “Kincaid-Chauncey asserts that the district court erred in failing to instruct the jury that the crime of honest services fraud requires proof of a quid pro quo.” Id. at *12.

Held: 1. Hobbs Act Quid Pro Quo: “Although we agree that the government must prove the existence of a quid pro quo to obtain a conviction under the Hobbes Act for non-campaign related payments, we reject the notion that the quid pro quo needs to be explicitly stated.” Id.

2. Honest Services Fraud Quid Pro Quo: “When the government’s theory is that a public official accepted money in exchange for influence, we agree that at least an implicit quid pro quo is required . . . . This requirement is necessary to ensure that the defendant had the requisite intent to defraud and to avoid convicting people for having the mere intent to curry favor.” Id. at *16 (citations omitted).

Of Note: Though a disappointing outcome, this is a well-written decision and a must-read for public corruption cases. Authoring Judge Bybee gives an exhaustive history of the (amorphous) “honest services” fraud theory, and articulates some important limitations on the theory – including this new rule requiring a quid pro quo for the “bribery” theory of prosecution. (Though an “implicit” quid pro quo will do).

The case also has an extensive (though again, frustrating) discussion of that elusive evidentiary concept, “impeachment by contradiction” – along with an unwelcome endorsement of the rule that this evidentiary avenue is (generally) not open when cross-examination testimony is being impeached. Id. at *7 - *8.

How to Use: There’s much left to tackle after Kincaid-Chauncey. First, the Ninth expressly avoids setting the limitations necessary for honest services fraud cases involving failures to disclose conflicts of interests. Id. at *19 & n.17. In a very thoughtful concurrence, Judge Berzon worries that the non-disclosure theory of prosecution is too broad and must have some limitations. Id. at *20. The question of the limitations on honest service fraud, when the theory is non-disclosure of a conflict of interest, is an issue ripe for attack. This attack would get a sympathetic hearing from Judge Berzon.

Moreover, while the convictions based on the instructions in this case are upheld, Judge Bybee concedes that the “intent element” for the (implicit) quid pro quo showing on the honest services fraud instruction was “rather thin.” Id. at *18. The Ninth salvages the convictions by rummaging among other instructions to prop up this element, but in future cases the defense should get a clearer, more forceful “honest services” instruction explaining the “quid pro quo” requirement.

For Further Reading: The whole sordid story of this corruption case is a fascinating tale, implicating a slew of local politicians and a government snitch (the strip-club owner) who changed his story more often than his socks. For a recent article on the case from the Las Vegas Sun, visit the paper's site here.


Above image of Ms. Kincaid-Chauncey (with her attorney, Richard Wright), by Sam Morris from http://www.lasvegassun.com/news/2009/feb/20/appeals-court-upholds-kincaid-chaunceys-conviction/


Steven Kalar, Senior Litigator. Website at www.ndcalfpd.org

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U.S. v. Garcia-Cardenas, No. 08-50117 (2-17-09). In a per curiam decision, the 9th again rebuffs arguments in 1326 cases that the use of a prior as an aggravated felony adjustment and as criminal history is double counting. The argument here was that such counting made for an unreasonable sentence. Defendant also argued that prior precedent permitting double counting, see U.S. v. Luna-Herrera, 149 F.3d 1054 (9th Cir. 1998), is no longer good law because of Booker. The 9th acknowledges that Booker changed the sentencing landscape, but concluded that it did not undermine the prior precedent, or alter its reasoning (which is guideline-based). The case was remanded to clean up the judgment, which had a conviction for both 1326(a) and 1326(b).

U.S. v. Norwood, No. 08-30050 (2-18-09). Crawford gets trumped by a business record. The appeal here raised the Crawford confrontation issue. The trial was over drugs and cash found in an apartment. Defendant argued that the drugs were for personal use, and not trafficking, and that the money came from legitimate sources. The prosecutor provided the court with an affidavit from the state employment office indicating no records of employment for the applicable time frame. Defendant raised a Sixth Amendment confrontation objection. The trial court admitted it. On appeal, the 9th (M. Smith joined by Reavley and Tallman) affirmed. The 9th recognized that the contours of the confrontation clause after Crawford is still being charted, but the admission of a certificate of nonexistence of record, is non-testimonial. The 9th finds that Cervantes-Flores, which allowed an INS certificate of nonexistence to come in controls. The 9th also held that a response in closing by the prosecutor that the police did not do something because the defendant had not told them about it (smoking cocaine with marijuana paraphernalia is not a comment on silence, but a defense of police conduct that was attacked by defense counsel, and it was an isolated comment). The 9th also denied an Eighth Amendment and due process challenge to the crack/powder cocaine mandatory minimum disparity.

Case o' The Week: "Cursing the Opacity of Guidance Received from Above," Autery and Post-Booker Sentencing review

District and appellate courts after Booker and Gall are "like Hansel and Gretel, looking for the now-missing breadcrumbs that would lead us back to clarity in sentencing." United States v. Autery, __ F.3d __, No. 07-30424, 2008 WL 349801 (9th Cir. Feb. 13, 2009), decision available here. In an interesting -- and potentially, double-edged -- decision, Judge Milan Smith creates a new rule for the Ninth: appellate review for the substantive "reasonableness" of a sentence is under the abuse of discretion standard, regardless of whether there was an objection below. A decision that makes dissenting Judge Tashima want to "figuratively curse the opacity of the guidance [courts] have received from above." Id. at *12 (or, maybe, literally curse . . . .)

Players: Decision by Judge M. Smith, joined by Judge Thompson, vigorous dissent by Judge Tashima.

Facts: Autery’s possession-of-child-porn guidelines were 41-51 months. Id. at *1. He took a plea agreement and argued for low-end, while the government asked for high. Id. The district court sentenced Autery to five years probation, citing the defendant’s “redeeming personal characteristics” and need for continued family support. Id. at *2. The government didn’t object – then appealed. Id. at *2.

Issue(s): “Before deciding whether to uphold the district court’s sentence, we must first determine the appropriate standard of review under the facts presented.” Id. at *3. “Neither this circuit nor the Supreme Court has squarely addressed the proper standard of review where the appellant fails to object to the sentence’s substantive reasonableness at sentencing.” Id.

Held: “The slight majority of those courts [that have considered this issue] has held that where no objection was made to the sentence at sentencing, the court still reviews for abuse of discretion to determine whether the sentence was reasonable.” Id. at *4. “After weighing Supreme Court authority, the views of other circuits, and public policy considerations, we hold that abuse of discretion is the proper standard of review in this case." Id. at *3. “[T]he substantive reasonableness of a sentence – whether objected to or not at sentencing – is reviewed for abuse of discretion.” Id. at *5. “We further hold that the district court did not abuse that discretion in sentencing Autery to five years probation with conditions.” Id. at *12.

Of Note: Judge Milan Smith (right), a W. Bush appointee, upholds a child-porn sentence of probation. Judge Tashima (left), a Carter appointee, vigorously dissents. What gives? Autery illustrates the imprudence of predicting outcomes from a judge’s political affiliation. The opinion may also reveal that some grizzled liberals fear Scalia’s unfettered and unreviewable sentencing discretion – a fear shared by many grizzled vets in the defense bar.

Autery explains the difference between a sentence reviewed for procedural error, and one reviewed for substantive reasonableness. Id. at *3-*4. Remember that in Gall the Supreme Court explained that the standard of review for substantive reasonableness is abuse of discretion . Autery only addresses the narrow question of substantive reasonableness review when there is no objection in the district court. The new Ninth rule? Substantive reasonableness is reviewed for “abuse of discretion,” regardless of whether the parties objected in the district court.

How to Use: Judge Smith’s thoughtful recitation of each § 3553(a) factor (and how that factor could justify this probationary sentence) is a welcome template for child-porn sentencing and a vindication of our sentencing mitigation arguments. Id. at *7-*8. Moreover, as Judge Tashima notes in his dissent, Autery was actually a run-of-the mill child porn defendant – and nonetheless his whopping “variance” was upheld. Id. at *12 (Tashima, J., dissenting). Use Autery and this dissent to reassure a sentencing court that its good § 3553(a) sentence will be bullet-proof on appeal.

The problem? A bad § 3353(a) sentence will be bullet-proof on appeal. A bad judge, or bad facts, means a client’s exposure is effectively the stat-max. For those courts and cases, Autery reinforces the value of 11(c)(1)(C) deals.

Finally, note that a separate standard-of-review remains for procedural sentencing error. If you fail to object at sentencing to procedural error, you’ll plunge into the tar pit of “plain error” review on appeal. Id. at *3. Object to everything – don’t risk having your issue characterized as “procedural” and getting stuck with plain error review.

For Further Reading: Remember that recent and disappointing Gonzalez-Zotelo decision, that held it was unreasonable to impose a reduced § 3553(a) sentence given fast-track disparities in illegal reentry cases? See blog here. How can Gonzalez-Zotelo possibly be reconciled with the deference afforded in Autery? Short answer? It can’t – Hubachek cited Autery in his Gonzalez-Zotelo petition for rehearing before the ink was dry in Judge Smith’s decision. Hopefully Autery will help spark review of Gonzalez-Zotelo.


Hansel and Gretel image from http://www.allposters.com/-sp/Hansel-and-Gretel-Posters_i2833314_.htm Image of the Hon. Judge Milan Smith from http://blog.oregonlive.com/mapesonpolitics/2008/07/this_smith_brother_made_the_di.html . Image of the Hon. Judge Wallace Tashima from http://www.ruttergroup.com/txfedaut.htm



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

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U.S. v. Autery, No. 07-30424 (2-13-09). This is an important sentencing "standard of review" case. The 9th holds that "abuse of discretion is the proper standard of review where a party challenges a sentence's substantive reasonableness on appeal but did not object to the sentence's reasonableness before the district court." (M. Smith joined by Thompson and Tashima concurring on the review standard) This case involved possession of child pornography. The guidelines were between 41-51 months, but the district court imposed a sentence of five years probation. The court carefully went through the 3553 factors, and explained at length why such a sentence was appropriate, and how it comported with the sentencing factors. On appeal, the 9th expounds upon the split in the circuits as to the proper standard of review when there has been no objection to the reasonableness of the sentence. The D.C., 7th and 10th Circuits use an abuse of discretion so as to avoid traps for the unwary or formulaic objections in every case. The 5th Circuit insists upon a plain error standard. The 9th goes with the majority, and specifically cites the reasoning in U.S. v. Castro-Juarez, 425 F.3d 430, 434 (7th Cir. 2005). The abuse of discretion standard for reasonableness, with or without an objection, is distinguished from the need for an objection, or else plain error review, for procedural errors (such as failure to address the 3553 factors or Guideline error). See U.S. v. Knows His Gun, 438 F.3d 913 (9th Cir. 2005). The latter standard affords a court to correct its mistakes; the review of reasonableness does not require the same "correct mistake" rationale. The 9th (M. Smith and Thompson) goes on to find that this sentence was not an abuse of discretion. Dissenting, Tashima would find an abuse of discretion, and that sentence of probation, under these circumstances, was unreasonable. Tashima believes that the defendant here is a "run of the mill" child pornographer, and that the circumstances of such that a sentence of a 14 level departure leaves him was "a definite and firm conviction that the district court committed a clear error of judgment." Tashima fears an abdication of any review, and a too highly deferential approach to sentences.

This case provides guidance on standards of review for sentencing appeals. It also illustrates the need to make the record and consideration of the factors in imposing a sentence. If Tashima is right, and any sentence is bound to be upheld as reasonable absent procedural errors (Scalia's approach in Rita), then all is won or lost before the sentencing court. "Reasonableness review" under the abuse of discretion standard is a steep hill to climb for a sentence vacation and remand.

Musladin v. Lamarque, No. 03-16653 (2-12-09). This was the "wearing victim buttons" case that the Supremes reversed. Carey v. Musladin, 549 US 70 (2006). The 9th (Berzon joined by Reinhardt and Thompson) deal with the remaining issues, and affirm the denial of the petition. The 9th considers whether the trial court's answer to a jury note without consulting counsel was an error at a critical stage. The 9th holds that the court did err in responding, and that the response (to look at the instructions) was at a critical stage. However, under AEDPA, the state court's decision is given deference, and its application of Supreme Court precedence was not unreasonable. The 9th also found sufficient evidence of premeditation, no reversible error in hearsay, and no IAC.

U.S. v. Selby, No. 07-30183 (2-9-09). The 9th (per curiam) substitutes this opinion for the one filed on Jan. 15, 2009. This case concerns a conflict of interest under 18 U.S.C. § 208 and wire fraud. Defendant was an administrator with the Bonneville Power Administration, and used her influence in regards to purchasing extensive software. Her husband was a salesman with the software company. Defendant argued that the initial contract was with the company before her husband went to work for them. The 9th held this did not matter, because the conflict of interest arose with subsequent purchases and contracts. The 9th also affirmed the wire fraud convictions against sufficiency of evidence challenges.

U.S. v. Cruz, No. 07-30384 (2-10-09). "Who is an Indian?" This question is an element in those cases arising from 1153 (Major Crime Act) prosecutions on Indian Reservations. Usually the question is easily proved: the defendant is an enrolled member of a tribe, receives benefits, and identifies as a member of the tribe. Occasionally, though, the test is more complex, especially when a person shuns or disputes tribal status. That is the case here. Defendant had 22% Blackfeet "blood" (chilling that we use that term) from his mother, but he was never an enrolled member of the tribe, moved off the reservation when he was a few years old, was eligible for tribal benefits, but never took advantage of them (like health), and went to school and had jobs that were open to Indians and non-Indians. He was renting a motel room on the Indian Reservation when an aggravated assault took place. The 9th (Reinhardt joined by Thomas) reversed the conviction on insufficiency grounds, even under plain error. The government failed to satisfy the test for Indian status set forth in U.S. v. Bruce, 394 F.3d 1215 (9th Cir. 2005). That test requires the defendant to have sufficient "degree of Indian blood," and has "tribal or federal government recognition as an Indian." The first prong of the test is conceded by defendant; the second prong has four factors, which are, in declining importance, tribal enrollment, government recognition, formal or informal, through receipt of Indian assistance; enjoyment of tribal affiliation benefits, and social recognition and participation in Indian social life. The 9th holds that, in this instance, none of the four factors were met. The defendant never voted in the tribe, never availed himself of tribal benefits, had been prosecuted by the tribal courts, but never seemed to identify as a member of the tribe. In dissent, Kozinski argues that the tribe recognized defendant and made him eligible to receive benefits, even though non-enrolled. The focus of the dissent is on what the tribe did, and the dissent argues too that the balancing test of Bruce is recalibrated into a too rigid test of declining weighted factors. This is an important case for the Indian test, and has established a jury instruction for the element. the case also has an interesting discussion of the standard of review for jurisidictional elements when based upon facts presented to the jury.

U.S. v. Beltran-Moreno, et al., No. 07-10368 (2-10-09). What were defendants or appellate counsel thinking on appeal? The defendants plead guilty to various drug counts and two firearm counts. The drug guidelines were life, but the court departed downward to 25 years, and because the court was unaware of the Supreme Court's Deal decision pertaining to 924(c)s, it imposed two consecutive 5-year sentences instead of the mandated 5-year and 25-year sentences. Instead of life plus 30 years, the defendants got 35 years, still 5 years under the mandatory minimums (10 for drugs and 30 for guns). Sentencing counsel, wisely, did not object. However, the defendants for some reason appealed! One even argued that the sentence was unreasonable and procedurally deficient. The 9th (Reinhardt joined by Hug and Tashima) were bewildered and perplexed at this decision, the role of counsel, and the arguments. The 9th managed to affirm the sentences only because the government chose not to appeal, see Greenlaw v. U.S., 128 S. Ct. 2559 (2008). The 9th praises the government in choosing not to appeal these incorrect sentences and harshly chastises defense counsel.

U.S. v. Romero-Ochoa, No. 08-30251 (2-5-09). Shouldn't a defendant know for certain what he's facing in terms of penalties? Isn't this especially important for 1326s (illegal reentry after deportation) when it comes to having an aggravated felony or not? Of course, but here the defendant could not get an answer from the court pretrial. This put a bit of a damper on plea negotiations, or trial, and so the defendant sought both an interlocutory appeal and mandamus. The 9th (M. Smith joined by Beezer and Tallman) found no jurisdiction. First, there was not a final order. Defendant had asked for a pretrial order either determining whether his prior was an aggravated felony, or striking the allegation in the indictment. The court had reserved it for after trial, and so no finality as to a ruling was achieved. Second, this issue was not separate form the merits, but entangled, and there is a preference for speedy trial resolution of the merits. And third, the issue is reviewable upon appeal. As for mandamus, the ruling is not clearly erroneous, and is reviewable upon appeal, too. All in all, the facts here are not unusual nor the error clear so as to warrant extraordinary relief.

Case o' The Week: A "WARRENless" Search Case with New Fourth Amendment Rules, Al Nasser

Judge Kleinfeld (seen here, left, with members of the Harvard Federalist Society) authors a "new" (amended) Fourth Amendment decision that asks whether a defendant is "seized" when he or she voluntarily stops for the police. United States v. Al Nasser, __ F.3d. __, No. 05-10466, 2009 WL 251951 (9th Cir. Feb. 4, 2009), decision available here.
The answer? Nope.

Players: Decision by Judge Kleinfeld, joined by Judges Trott and N. Randy Smith. Dissent in original decision by the late Hon. Judge Warren Ferguson.

Facts: Border patrol and tribal police stopped one car at night, then stopped a second car that was smuggling undocumented aliens. Id. at *1. By the time the third car – Al Nasser’s – passed on the highway the cops had their hands full and (said) they didn’t intend for him to stop. Id. Seeing flashing lights – and a flashlight shined at him by a cop – Al Nasser stopped anyway. Id. Turns out Al Nasser was carrying undocumented aliens too. Id. at *2. The district court denied his suppression motion, holding there was no seizure. Id. at *3.

Issue(s): “What if the police do not intend to stop someone, but a person thinks that he is being stopped? Must that unintended stop still be supported by reasonable suspicion in order to prevent suppression of its fruits? Does the ‘objective’ examination of police conduct, as required in Whren v. United States for a vehicle stop brought about by police action undertaken to effect the stop, mean that if a reasonable person would think that he was being stopped, then the person is ‘seized’ within the meaning of the Fourth Amendment, even if the police do not want the person to stop and intended for him to go on about his business without stopping?” Id. at *3 (footnote omitted).

Held: “‘A person is seized when he is “ meant to be stopped by [a particular law enforcement action] ... and [is] so stopped.’ That is, a seizure occurs where a person is stopped by ‘the very instrumentality set in motion or put in place in order to achieve that result.’ Here, the two Border Patrol agents and the tribal police officer did not stop their vehicles or the two civilian ones in order to make other vehicles stop. Although Al Nasser did stop, the lights and the vehicles that caused him to do so were not a roadblock put in place to accomplish that purpose. Thus, Al Nasser was thus not ‘seized’ within the meaning of the Fourth Amendment when he stopped his car.” Id. at *7 (quotes and brackets in original, footnotes omitted).

Of Note: This dense decision is not an easy read, so here’s the gist. Remember how, after Whren, the subjective intent of the officers isn’t relevant in a Fourth Amendment search? Remember how, after Whren, a cop could want to stop and search for drugs, but could use the pretext of a traffic stop, and as long as there was P.C. for the traffic stop, the seizure passed Fourth Amendment muster? Remember how the objective evaluation of probable cause, not the subjective intent of the officers, is what is important?

Well, that’s all still true – unless the cop didn’t intend to stop the defendant. Then, after Al Nasser, we switch: it becomes a subjective test and we ask whether the subjective intent of the cop was to effectuate a stop. If it wasn’t, there’s no stop. No stop, no Fourth Amendment violation.

A cynic might claim that the Court is flip-flopping between subjective and objective tests, cherry-picking whichever approach will defeat a Fourth Amendment challenge. But we’re not cynics.

How to Use: There’s some big new Fourth rules buried in this opinion, but the case offers no clear tests or decision-trees for how to approach this analysis. In short, Al Nasser is going to prompt a lot of head-scratching and litigation, both in criminal defense and in § 1983 claims. The opinion will also spawn more evidentiary hearings, as that old, fuzzy, subjective “intent-of-the-officers” is now back in play (just like pre-Whren). Finally, anticipate cops abusing the rule – particularly in road-block and DUI cases. The best way to use Al Nasser is to avoid it, if possible.

For Further Reading: This amended opinion followed Judge Warren Ferguson’s (right) death and replacement on the panel by Judge N. Randy Smith. For a radically different account of this stop – and a persuasive argument against the ultimate holding – see Judge Ferguson’s original dissent at Hussein Al Nasser, 479 F.3d 1166, 1172 (9th Cir. 2007). As Judge Ferguson explained, the border patrol agent stood in the lane in front of Al Nasser, shined a “stinger’ flashlight into the car, then continued to shine it into the car as it passed. Id. One officer testified that Al Nasser was “ordered to stop.” Id. at n.1. With typical forthrightness, Judge Ferguson opined, “the majority’s decision contradicts both logic and clear precedent.” Id.



Image of the Hon. Judge Andrew J. Kleinfeld from http://www.law.harvard.edu/students/orgs/fedsoc/2003_event_summary.shtml . Image of the Hon. Warren Ferguson from http://www.nytimes.com/2008/07/12/washington/12ferguson.html?ref=todayspaper

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

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U.S. v. Al Nasser, No. 05-10466 (2-4-09). Three Border Patrol cars were on the side of the road, and two other vehicles were stopped. The agents were processing smuggled illegal aliens for arrest. The defendant drove up, and stopped. The officers were not going to stop any more cars because of the safety issue, but this car had stopped. An agent approached him, and assumed he was Mexican. He was, in fact, Iraqi. The agent looked in the car, and spied cowering individuals that he took to be illegal aliens. Was this a seizure? The 9th (Kleinfeld, Trott and N. Smith) hold "no" in this amended opinion (Judge Ferguson had been on the original panel, and had dissented. He died while the rehearing petition was pending). The focus is on whether the police had, in fact, intended to stop the individual. Here, the defendant had voluntarily stopped, and the police had not focused on him, or intended to stop him.

U.S. v. Alvarado-Martinez, No. 07-50492 (2-5-09). The 9th, in a per curiam opinion (Bright, Trott and Hawkins), holds that a court did not abuse its discretion finding, under a preponderance standard, that rap sheet listing four misdemeanors could be used to calculate criminal history under the guidelines. The files for the convictions had been destroyed. The rap sheet of the convictions had the case numbers, and the fingerprint matching made it reliable. The 9th limited its holding on the fact here that the fingerprint matching had led to the compilation of the rap sheet, and could be deemed reliable, even if an alias or different name had been used (fingerprint matching again). The 9th cited for support that a PSR using a rap sheet was sufficient to satisfy a preponderance of the evidence standard in Marin-Cuevas, 147 F.3d 889 (9th Cir. 1998).

Abraham Lincoln on Guantánamo

As we approach the 200th anniversary of Abraham Lincoln’s birth, our sixteenth president provides what sounds like a call to action regarding the policies and injustices that resulted from the law-free zone in Guantánamo: “To correct the evils, great and small, which spring from want of sympathy, and from positive enmity, among strangers, as nations, or as individuals, is one of the highest functions of civilization.” The reference to strangers is what caught my eye. The break from the rule of law in Guantánamo could only happen in a context where, instead of fellow humans, the prisoners there were dehumanized and demonized as the faceless other – the worst of the worst.

In 1859, with memories of the Mexican War recent and ferment about slavery pressing, Mr. Lincoln made his statement in the context of the deep-rooted problem of xenophobia and the struggle to overcome the evils resulting from abasement of the other:

"From the first appearance of man upon the earth, down to very recent times, the words “stranger” and “enemy” were quite or almost synonymous. Long after civilized nations had defined robbery and murder as high crimes, and had affixed severe punishments to them, when practiced among and upon their own people respectively, it was deemed no offence, but even meritorious, to rob, and murder, and enslave strangers, whether as nations or as individuals. Even yet, this has not totally disappeared. The man of the highest moral cultivation, in spite of all which abstract principle can do, likes him whom he does know, much better than him whom he does not know. To correct the evils, great and small, which spring from want of sympathy, and from positive enmity, among strangers, as nations, or as individuals, is one of the highest functions of civilization."

The future president’s underlying idea is both timeless and fresh: How do we recognize and combat the injustices easily visited on strangers that we would never inflict on our family, friends, and neighbors? How do we keep in mind the humanity of others when prejudice and propaganda desensitize us to the real harm others suffer?

Attorneys representing Guantánamo prisoners know that the repeated claim that everyone being held is the “worst of the worst” is simply untrue. Time and again, investigation has verified that men so described were in fact innocent victims of mistaken identification, charity workers, victims of our enemies, refugees. But the point is not that all prisoners are innocent, or low level, or war criminals. The fallacy is in trying to judge a group instead of the individuals, with their infinite variations of personality and experience.

Our new president, who pays attention to the legacy of Lincoln, has ordered the closing of Guantánamo and reexamination of the individual cases of the men held there. Almost 25% of the 242 remaining prisoners cannot be repatriated to their home countries because they would face torture or death there. The relocation process is at an impasse because European countries have yet to agree to accept Guantánamo prisoners. Although Europeans express willingness to help close the facility, the unwillingness of the United States to accept any such prisoners has proved an obstacle: why should they help solve a problem that the United States created if the United States will not act?

Which gets back to the need “to correct the evils, great and small,” that resulted from Guantánamo. There are seventeen ethnic Uighurs from China who, after years in Guantánamo, were cleared of being enemy combatants but who languish in Guantánamo with no available place of refuge. There are persons who face serious charges that can only be fairly adjudicated in United States criminal courts. There are prisoners with a wide array of unique circumstances who need individualized plans for refuge and resettlement.

To close Guantánamo, some prisoners will need to be returned to their country of origin, some will need to be placed in the United States or other asylum countries, and some will stand trial in United States court houses, as they should have years ago. By closing Guantánamo, our country’s national security is strengthened. The moral authority of our core values is reinforced, while depriving our enemies of a rallying point and an excuse to abuse captured Americans. As the chief judge of Guantánamo’s now-suspended military commissions stated about torture, “If we tolerate this and allow it, how can we object when our service men and women are subjected to the same techniques? How can we complain? Where is our moral authority to complain?”

To return to the rule of law, as a manifestation of Mr. Lincoln’s “highest functions of civilization,” we need to expeditiously correct the real evils – to individuals and to institutions – that have resulted from our abandonment of first principles. The first steps are closing the prison, resettling or charging the prisoners, and providing redress for the innocent.

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