Case o' The Week: Breaking Up is Hard to Do, Mendez-Sanchez

Appointed counsel -- be it CJA or FPD -- are getting fired in droves in the N.D. Cal., thanks to the "priors" policy of United States Attorney Joe Russoniello (left). Perfect timing for a new decision by the Ninth, discussing Faretta motions and motions for new counsel: now-frequent fare for the N.D. Cal. bench. United States v. Mendez-Sanchez,__ F.3d __, No. 08-30044, 2009 WL 1082288 (9th Cir. Apr. 23, 2009), decision available here.

Players: Decision by Judge Gould.

Facts: Mendez-Sanchez was charged with drug conspiracy counts that carried a ten-year mandatory minimum. Id. at *1. His appointed attorney asked to be relieved, explaining that Mendez-Sanchez accused him of “threatening him” whenever counsel discussed the evidence. Id. A pair of new counsel were appointed. Id.

As trial loomed, Mendez-Sanchez moved to fire this second round of counsel: appointed counsel affirmed the defendant was competent, but explained, “he just doesn’t want to hear what I’m telling him. And he just doesn’t want to talk about it, basically.” Id. at *2. Mendez-Sanchez then described his distrust of his lawyers, and said: “I don’t want any lawyer anymore.” Id. at *3. “I don’t want these lawyers. I’m not going to risk my life with these lawyers.” Id. He said that self-representation would be better than being represented by these lawyers, id. at *3, but later asked for another lawyer, id. at *4.

The district court denied Mendez-Sanchez’s request for new counsel, he was convicted at trial, and sentenced to 240 months. Id. at *4.

Issue(s): “We consider the relationship between a motion to substitute counsel and an invocation of a defendant’s Faretta rights.” Id. at *1.

Held: “We hold that while a defendant may invoke his or her self-representation rights after a denial of a motion to substitute counsel, the invocation must be unequivocal. A request to represent oneself made while at the same time stating a preference for representation by a different lawyer and rearguing the change of counsel motion is insufficient to invoke Faretta.” Id. at *1. “[T]he district court’s Faretta inquiry was sufficient . . . the district court did not clearly err in finding that Mendez-Sanchez had not unequivocally waived his right to counsel.” Id. at *9.

Of Note: The core holding of Mendez-Sanchez is that Faretta motions – a motion for self-representation – must be unequivocal. Id. at *7. “Because the exercise of self-representation cuts of the exercise of the right to counsel, often to individual detriment, we recognize the right only when it is asserted without equivocation.” Id. at *8.

This is a confusing and fuzzy area of law. A defendant can place conditions on self-representation and still make an unequivocal demand: e.g., “If I do not get new counsel, I want to represent myself.” Id.

But, if the defendant states, “If I am appointed standby counsel, I would like to represent myself,” then he has made an equivocal demand and Faretta isn’t triggered. Id. (?!?) {As intuitive as “conditions precedent” in Property law.} The absurdity of this area of law is that these are usually indigent, uneducated clients who are struggling to speak to the court – often through a translator. Deciding Faretta on phrase placement by an inarticulate defendant is, essentially, a quiet way of avoiding the train wreck of self-representation: not a bad thing from a policy perspective, but a tough rule to understand.

How to Use: Those who represent indigent defendants in federal court will wince in recognition at the Mendez-Sanchez fact pattern. In addition to its primary holding on Faretta invocation, the decision also has an interesting and lengthy discussion on the frequently-misunderstood (by clients) “right” to new counsel. Id. at *4-*6. Judge Gould recites the three Prime factors in reviewing such motions:

1. the timeliness of the motion,

2. the adequacy of the court’s inquiry, and

3. whether the conflict was so great “as to result in a complete break-down in communication and consequent inability to present a defense.”

Id. at *4.

The decision is a clear, recent example that would be excellent reading material for disgruntled clients anxious to invoke “right” for a new attorney.

For Further Reading: Indiscriminate filing of priors, unfairly bullying defendants into “quick” dispos with threats of priors, filing priors if bail is sought, and a pervasive arrogance in the conveying of offers: a sure recipe for a resource-destroying tsunami of Faretta motions and motions for new counsel. See article here.

Image of USAO Joe Russoniello from http://www.marijuanafreedommarch.org/home/wp-content/uploads/2009/04/225px-joseph_russoniello.jpg

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

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U.S. v. Mendez-Sanchez, No. 08-30044 (4-23-09). Faretta vs preference for a different lawyer? Here, the defense counsel had a difficult relationship with the defendant facing drug charges: the defendant insisted there was no evidence because there were no photos of the drug dealing, and focused on trivial discrepancies (such as a date being crossed out on the warrant and initialed). The defendant wanted a different lawyer; and when the court appointed a second lawyer, the defendant wanted yet another. The trial date was approaching when the court held a hearing. The defendant indicated he wanted to represent himself but his Faretta colloquy indicated ambiguity. The court thereupon kept appointed counsel. The defendant was convicted. On appeal, the 9th (Gould joined by W. Fletcher and Tallman) held that a defendant may invoke his Faretta rights after denial of a motion for subsitution of counsel, but such invocation must be unequivocal. This was not. The defendant indicated he wanted counsel, just different ones. The 9th did not require the court to advise the defendant that he could have stand-by counsel; nor did the court have to initate a compenetncy determination sua sponte. The exchange and knowledge displayed by the defendant indicated competence. He just did not like the plea offer or the evidence.

U.S. v. Mejia-Luna, No. 07-10472 (4-23-09). The 9th (Tallman joined by D. Nelson and W. Fletcher) affirmed an alien smuggling conviction. The agent testified as an "expert" on the tactics and ruses used by smuggling rings. The 9th, again, said that such expert tetsimony was permitted under the abuse of discretion standard, and it allowed the jury insight into behavior.

U.S. v. Crowe, No. 08-30173 (4-24-09). The pregnant girlfriend was being assaulted in her house by her boyfriend. Hit repeatedly and shaken, she reached for a knife, and stabbed the boyfriend. He staggers back, says something like "I'm out of here" and leaves. He returns later, collapses and dies. The government charges voluntary manslaughter, and the jury convicts on involuntary. The judge (the Hon. Sam E. Haddon) then gives 32 months as needed just punishment and the nature and circumstances of the offense. The 9th (Jenkins joined by Paez and Rawlison) affirm the conviction and sentence. The 9th held that the court did not plainly err in giving sua sponte an involuntary instruction, because the act could have been done in a reckless manner. The defendant's self defense claim and instruction did not negate the possibility of involuntary. The court also did not err in admitting 404(b) evidence of other domestic disputes and violent acts. Finally, the sentence was not unreasonable. The court considered the guidelines and also considered the 3553 factors in formulating a sentence. The court's emphasis on certain factors, and its refusal to grant a departure, did not make the sentence unreasonable.

U.S. v. Diaz-Arueta, No. 05-10224 (4-24-09). The 9th (Noonan joined by Tashima and W. Fletcher) affirm a 1326 sentence. The prior state convictions, in various permutations, were felonies. The defendant failed to show that prior convictions that could either be felonies or misdemeanors were, in fact, misdemeanors. The law is that the convictions were to be considered felonies unless the defendant moved, or the court filed, a recharacterization. There was no record of that.

McKnight v. Torres, No. 08-55459 (4-20-09). Can a plea agreement be lost in translation? The defendant entered into a plea agreement with the US Atty regarding ecstasy trafficking. The defendant was also wanted by the French, and France requested extradition. The defendant's plea agreement with the US Atty granted immunity for his cooperation proffer. The language, though, explicitly stated it was for any prosecution by US Attorneys. The defendant thought this would apply to the French, but the information was handed over. Defendant brought this habeas challenge, arguing that the US Attorney acted in bad faith. Not so, said the 9th (Hawkins joined by Berzon and Clifton). The plea's language explicitly stated that it only bound US Attorneys. The 9th goes on to warn US Attorneys that they should expect in extradition cases and in pleas that language will now be requested to cover foreign jurisdictions.

Townsend v. Knowles, No. 07-15712 (4-21-09). Win the battle, lose the war. The petitioner followed the rules in his post-conviction challenge to his state second degree murder conviction. While working his way up the state system, Payne came out from the Supremes, which changed the rules. Petitioner would have been out of luck, but the 9th said that he had relied upon 9th Circuit precedent and so should get equitable tolling. Fine, his petition gets heard, but the 9th then finds that the jury instruction on California felony murder was not contrary to the Constitution and there was not IAC.

U.S. v. Felix, No. 07-50173 (4-13-09). One criminal history point. That is what this appeal is about. And that one point separated the defendant from getting relief by the opening of the safety valve. Proof of the point was a computer print-out. The 9th first held that the appeal was not waived even though the plea agreement had waiver language because the district court had twice told defendant he could appeal, and the government did not object. Thus, the defendant won the battle in getting to the 9th but lost the safety valve war. The 9th (Callahan joined by Hall and Silverman) then held that a computer print out sufficed for proof, especially because the defendant did not offer any counter argument except for proof. Moreover, the defendant shouldered the burden to show, once the computer printout was allowed, that his misdemeanor was expunged. He was unable to do so. As to the standard of proof used for the print-out, the extent of the sentence differential between a mandatory minimum and a safety valve was not so great as to trigger "clear and convincing" evidence standard. Lastly, the use of the print out was not in violation of Shepard.

U.S. v. Brown, No. 08-30040 (4-17-09). The 9th considers whether a consent to search a residence by a co-occupant was voluntary, and whether the consent was ineffectual because his permission should have been sought. The defendant was staying with friends. He had an outstanding warrant and an informant had told the police where he was. When the police came to arrest him, he was outside with Rishel, a co-occupant. Five or six police approached them with guns drawn, threw them down, handcuffed them, and placed the defendant in a police car. The police then released Rishel, and gave the key to her apartment back to her. She went there, and consented to a search, after asking an officer to hide his insignia. She also allowed a search of her bedroom. Guns were found, and defendant was charged with being a felon in possession. The district court denied suppression, finding the consent was voluntary. The 9th affirmed (Tallman joined by W. Fletcher and Gould). The 9th reasoned that Rishel was not in custody after being released, and was given time and distance to decide if the police could search. She made requests that were followed, and she was asked permission regarding her bedroom. As to whether she could agree to a search, it was an apartment that she was a co-occupant. Moreover, the defendant was not purposely taken away so he could not physically object. He was arrested on a warrant, and placed in a car pursuant to procedure and safety concerns. They did take a key from his pocket, but the police were under no obligation to ask him for consent then, nor to take him back to the apartment. The Supremes' decision in Randolph was not violated.

The NY Times, April 17, 2009, and other media, reports on the disclosure of the interrogation memos that outline the techniques to be used in the aftermath of Sept. 11 against senior operatives of Al Qaeda. Besides waterboarding, other treatment included keeping "detainees awake for up to 11 straight days, placing them in a dark, cramped box or putting insects into the box to exploit their fears." Passages that describe "forced nudity, the slamming of detainees into walls, prolonged sleep deprivation, and the dousing of detainees with water as cold as 41 degrees alternate with elaborate legal arguments concerning the international Convention Against Torture. "The present Director of National Intelligence" cautioned that the memos were written at a time when C.I.A. officers were frantically working to prevent "another terrorist attack." The NYT states that: "The first of the [interrogation] memos from August 2002 was signed by Jay S. Bybee, who oversaw the Office of Legal Counsel, and gave the C.I.A. its first detailed legal approval for waterboarding and other harsh treatment." The Honorable Jay S. Bybee now sits on the 9th Circuit Court of Appeals.

Case o' The Week: Brown Blues, Ninth Broadens Co-Occupant Consent Searches

Handcuff a suspect at gunpoint outside of his house, throw him in a police car, whisk him away, never ask him if he consents to a search of his residence, and get another ('cuffed) occupant of the home to consent to a search.

Surely, this is not valid Fourth Amendment "consent" to a warrantless search?

It is is in the Ninth. United States v. David Brown, No. 08-30040, __ F.3d __, 2009 WL 1025831 (9th Cir. Apr. 17, 2009), decision available here. (Though arguably not for the Supreme Court, under Georgia v. Randolph, 547 U.S. 103 (2006)).

Players: Decision by Judge Tallman (above left), joined by Judges W. Fletcher and Gould.

Facts: Five or six cops and feds, guns drawn, surround Brown and his female friend, Rishel, on a Spokane street. Id. at *1, *4. They bust Brown on an outstanding warrant and take him to jail. Id. at *1. The cops never ask Brown for his consent to search his residence. Id. The woman, Rishel, was cuffed and told that Brown had guns in the residence he shared with her. Id. Rishel testified that ATF Agent Dale Watson threatened to “tear the place apart” if she forced him to get a warrant (the agent disputed this). Id. at *2. The district court found that Rishel “spontaneously consented” to a search of the residence. Id. at *2.

The home was searched, guns were found,§ 922(g) was charged, and the suppression motion was denied. Brown took a conditional plea.

[Ed. Note: Why is the N.D. Cal. U.S.A.O. the only office in the United States that categorically bars conditional pleas?]

Issue(s): “Brown contends that [Rishel’s] consent was not voluntary, and furthermore that her consent was ineffective as to him because officers should have sought his permission pursuant to Georgia v. Randolph, 547 U.S. 103 (2006).”

Held: “Taking into account all of the circumstances surrounding her encounter with Agent Watson, we conclude that Rishel was not in custody. Although Brown and Rishel were admittedly approached by five or six officers with guns drawn —and were both ordered to the ground, handcuffed, and patted down for weapons—all these events occurred in a public setting and there is no evidence that police continued to display their weapons after Brown and Rishel were safely secured.” Id. at *4. “The remaining voluntariness factors do not tip the scales in Brown’s favor.” Id. “Given these circumstances, the district court did not clearly err in finding that Rishel voluntarily consented to search the East Augusta residence.” Id. at *5.

Of Note: “In Georgia v. Randolph, the Supreme Court held that an occupant’s consent to the warrantless search of a residence is not valid as to a physically present co-occupant who expressly refuses consent.” Id. at *5. A co-tenant can consent when the subject as absent, [s]o long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.” Id. at *5 (quoting Randolph, 547 U.S. at 121-22) (emphasis added in Brown decision).

Here, then, is the real issue: the feds never asked Brown whether he consented to the search of a residence, whisked him out of the picture, then leaned on the woman, Rishel, to get her to consent. Surely this crosses Randolph’s line? Nope, explains Judge Tallman, in reasoning that – with all respect – is unpersuasive. Tallman finds no evidence that the feds removed Brown (and neglected to ask him for consent). intentionally. Id. at *5. “Brown’s claim that he was intentionally removed to avoid his objection during the consent colloquy with Rishel is mere speculation.” Id. at *6.

Judge Tallman also reassures us that “it is possible that Brown would have granted his consent” to the search, so it is of less concern that he never was actually asked.

How to Use: Brown is a very troubling consent case, particularly because Judge Tallman revisits old (and favorable) Ninth Circuit law on the issue and either limits it or distinguishes it as dicta. Id. at *5-*6 (limiting United States v. Murphy). One way to distinguish and limit Brown in future cases may be the woman’s “spontaneous consent” to the search – a fact oft-repeated in the decision. Judge Tallman concedes that Randolph envisions a “fine line” in these "co-occupant consent" cases: perhaps if the defendant and co-occupant are actually confronted in the home’s threshold, and the consent isn’t spontaneously offered, Brown can be limited to its facts.

For Further Reading: Our worthy non-sequitur is a must-read: United States v. Olhovsky, __ F.3d __, 2009 WL 1014482 (3rd Cir. Apr. 16, 2009). In Olhovsky, Judge McKee reverses a 1) six year child porn sentence that was 2) five years below the guideline range because it was 3) too high, and thus substantively unreasonable!

A remarkable decision, both for post-Booker sentencing and for child porn cases. (Note that our own Judge Tashima, visiting from the Ninth, was on Olhovsky – adding to his long line of intriguing sentencing decisions).

For a particularly thoughtful and in-depth discussion of Olhovsky, visit the Third Circuit's blog at http://circuit3.blogspot.com/ . AFPD Sarah Gannett explains the important case in detail (and, just below the Olhovsky post, describes an interesting en banc sentencing decision on the "gilded cage" for white collar defendants). Id. (discussing United States v. Tomko, __ F.3d __, 2009 WL 1025876 (3d Cir. April 17, 2009) (en banc)).


Image of Judge Tallman from http://www.uscourts.gov/ttb/2007-09/newLeadership/index.html

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

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Case o' The Week: Defense shanked by Styrofoam "knife," Malik Smith

A slow week in the Ninth for criminal decisions lets us stretch back a bit and discuss what may be one of Judge Michael Hawkins' (left) last en banc decisions: United States v. Malik Smith, No. 05-50375, 2009 WL 750279 (9th Cir. Mar. 24, 2009), decision available here.

Players: Hard-fought case by C.D. Cal. AFPD Davina Chen. Decision by Judge Hawkins, dissent by Judge Berzon.

Facts: Prison officials caught inmate Malik Smith stabbing another inmate with a shank made out of melted Styrofoam lunch trays. Id. at *1. The knife had a sharp point and caused a number of lacerations, but broke during the assault. Id. Smith was charged with assault with intent to commit murder, and assault with a dangerous weapon. Id. at *2. The standard jury instruction – given over defense objection – stated that a “prison-made knife is a dangerous weapon if it is used in a way that is capable of causing death or serious bodily injury.” Id. at *2. Smith appealed after conviction on the “dangerous weapon” assault-charge, arguing that the instruction had relieved the government of its burden of proving that the shank was in fact a “dangerous weapon.” Id.

Issue(s): “We . . . consider whether a jury instruction impermissibly relieved the government of its burden to prove beyond a reasonable doubt that the defendant used a ‘dangerous weapon’ and whether any error in the instruction was harmless.” Id. at *1.

Held: “Although we hold there was a ‘reasonable likelihood’ the trial judge’s instructions ‘misled’ the jury to think they did not have to determine beyond a reasonable doubt that the defendant used a dangerous weapon . . . we nevertheless affirm Smith’s conviction because we conclude that it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” Id. at *1 (internal quotations and citation omitted).

Of Note: The majority readily concedes the instruction was erroneous: the real fight is whether this was Neder harmless error. Id. at *3-*4. Judge Hawkins first describes a “dangerous weapon” as something that can cause “great bodily harm” – and defines that term for the first time in the Ninth by reference to an analogous statute. Id. at *4. Because the Smith’s Styrofoam shank sliced the victim’s eyelid – and could have pierced his eye – the majority finds the knife was both inherently dangerous and used in a manner that risked great bodily harm. Id. at *4-*5.

Dissenting Judge Berzon (joined by Judges Schroeder, Reinhardt, Wardlaw, and Paez) doesn’t buy it. Id. at *6. The Styrofoam “knife” broke when Smith hit the victim in the back, and that wound just required first aid. In short, it isn’t clear that the shank could have reached vital organs. The government’s medical “expert” – who had twice failed the medical boards – didn’t persuade the dissenters otherwise. The five dissenters (just one short!) would have left the fact-finding on this critical element to the jury – a persuasive argument, particularly in this post-Booker world.

How to Use: Judge Berzon invites the defense to tackle the traditional federal definition of “dangerous weapon” – which has included things like a shoe, a pot, or a chair. Id. at *6 n.1. In her view, that stretches the term “weapon” too far – Congress didn’t mean to deter folks from “wearing shoes, cooking in pots, or sitting in chairs and then deciding to use them to hurt someone.” Id. An interesting issue to flag for a future case.

For Further Reading: Judge Michael Daly Hawkins, a Clinton appointee, recently announced his intention to take senior status. See Ninth Circuit press release here. While a former United States Attorney, Judge Hawkins doesn’t hesitate to hold the government’s feet to the fire. See United States v. W.R. Grace, 525 F.3d 499, 524 (9th Cir. 2008) (en banc) (Hawkins, J., concurring), decision available here. He also is a strong advocate for a defendant’s Confrontation Clause rights. See United States v. Larson, 495 F.3d 1094, 1113 (9th Cir. 2007) (en banc) (Hawkins, J., dissenting), decision available here . While Judge Hawkins will still maintain an active caseload, his senior status may allow a bit more time for his passion for herpetology (and specifically, Arizona Diamondbacks).


Photo of the Hon. Michael Daly Hawkins courtesy of the Wired.com blog at http://blog.wired.com/27bstroke6/2007/08/nsa-hearing-ope.html . Arizona Diamond Backs logo from http://www.justsportsazonline.com/images/ARI_6dlxgmecbzj3i8f3h483%5B1%5D.gif

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

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Case o' The Week: Peanuts for Carter, Post-Booker Sentencing Review in the Ninth

Post-Booker appellate review of sentencing is an "empty formality," complains dissenting Judge Tashima in a decision that reveals where the Apprendi revolution fell short. United States v. Carter,__ F.3d __, No. 05-50303, 2009 WL 805801 (9th Cir. Mar. 30, 2009), decision available here.

Players: Decision by Judges Tashima and Ikuta, joined by Judge Bea, dissent by Judge Tashima.

Facts: Carter was convicted after trial of conspiracy to rob two banks, and § 924(c) counts. Id. at *1. He was sentenced to 471 months. Id. At sentencing, defense counsel made several Booker arguments to try to get back down to the stat max of 360: “He cited numerous personal hardships Carter had endured throughout his life, such as the lack of a relationship with his father, his mother’s inability to provide ‘basic food, utilities, electricity,’ Carter’s attempts as a youth to provide for his family, and his placement in a group home.” Id. at *3.

Issue(s): “Carter argues the record fails to establish that the district court exercised its sentencing discretion under Booker because the court did not adequately discuss the sentencing factors it must consider under 18 U.S.C. § 3553(a) as they applied to Carter, and because the court did not directly address Carter’s arguments. As a result, Carter contends, the record is insufficient for us to determine whether Carter's sentence was reasonable.” Id. at *7.

Held: “Under the Supreme Court's guidance in Rita v. United States, 127 S.Ct. 2456 (2007) and Ninth Circuit case law, the district court's explanation of its sentence, although brief, was adequate in context. Moreover, under the Supreme Court's guidance in Gall v. United States, 128 S. Ct. 586 (2007), the district court did not abuse its discretion by imposing a within-Guidelines sentence.” Id. at *6.

Of Note: Judge Tashima, a grizzled Ninth vet, has had a long interest in sentencing issues. In Carter he expresses his frustration at the post-Booker system in a fascinating dissent. Id. at *13 (Tashima, J. dissenting). He complains that the district court’s “rote recitation of a few of the § 3553 factors does not begin to constitute ‘an individualized assessment based on the facts presented.’” Id. at *14. In his view, the majority’s consideration of the district court’s sentencing decision was so deferential that it makes “appellate review of sentencing an empty formality.” Id. at *15 (internal quotations and citation omitted).

Judge Tashima persuasively takes on the substantive reasonableness of the sentence – particularly when the two co-defendants in the case received sentences that were a fraction of the 471 months doled out to Carter. Id. at *15 n.4. He also embraces Judge Gould’s earlier essay on the disparate (low) sentences received by white collar defendants – and of the “stark contrast” to the sentence in Carter. Id. at *15 n.3 (citing United States v. Ruff, 535, F.3d 999, 1005 (9th Cir. 2008) (Gould, J., dissenting)).

The policy pendulum is still a long way from the disparity tipping-point that sparked the guidelines in the first place, but Judges Tashima, Gould, and Reinhardt are among the first wave that question the justice of the ad hoc Breyer patch in Booker.

How to Use: If you’re defending a “lenient” sentence in the Ninth, Carter, Ruff, and Autery are your cases. As Judge Tashima complains, these opinions reveal that appellate sentencing review is now an “empty formality.” See Autery blog here.

If you’re attacking a harsh sentence on appeal, however, check out the recent decision in United States v. Paul, 2009 WL 861287 (9th Cir. Apr. 2, 2009), decision available here. In Paul, Judges Reinhardt, Hall, and M. Smith reverse – for the second time – an in-guideline sentence for theft of government property because it was not “reasonable.” Id. at *1. (But be forewarned: reversals for substantive unreasonableness are rare birds indeed).

For Further Reading: Another shell in these sentencing wars was recently fired by Judge Gould, in his dissent from denial of rehearing en banc in United States v. Whitehead, 2009 WL 606423 (Mar. 11, 2009) (ord.) (Gould, J., dissenting), dissent available here. While we disagree with Judge Gould’s ultimate conclusions, the dissent is a well-written essay on sentencing disparities for white collar defendants. It is interesting to see Tashima and Gould come to the same conclusion about post-Booker sentencing disparities, one judge from the perspective of a sentence that is too harsh, and the second from the perspective of a sentence that is too lenient.


Image of the Hon. Wallace Tashima from http://grad.berkeley.edu/publications/egrad/0708.shtml


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

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U.S. v. Paul, No. 08-30125 (4-2-09). The defendant had embezzled some federal funds: it was her first offense, she returned the funds, she apologized profusely before charges were filed, and she explained that she had taken the funds because she felt, wrongly, that it was compensation for work she had done for the school district. The court nonetheless gave her a 16 month sentence! The judge, the Hon. Sam E. Haddon, D. Mont., explained that it was for abuse of trust. The 9th found that the sentence was unreasonable, and had vacated and remanded, explaining that the court had to more closely look at the mitigating factors. The court, upon resentencing, still focused on the abuse of trust, and gave a 15 month sentence. The 9th (per curiam with Reinhardt and M. Smith) found the sentence again to be unreasonable. The 9th put down the marker that the reasonableness of a sentence is an inquiry, and that the appellate courts can say, in specific cases, that the sentence is too much. Moreover, the court did not appear to give sufficient, if any, weight to the recognized mitigation specifically found by the 9th. The case is also reassigned to a different judge because of the appearance for justice. In a dissent, Hall argues that the recent cases of Gall and Rita focus on the individualization of a sentence, and that is what took place here. The dissent would uphold the sentence as reasonable for the reasons stated, even if the 9th disagreed. The dissent seems to adopt the approach, championed by Scalia and Thomas, that focuses on procedure and not substance in appellate review. The response would be that a sentence still has to be rational and reasonable, and indicate a weighing of 3553 factors.

U.S. v. Rollness, No. 07-30411 (4-2-09). The 9th holds, per curiam, that the sentence for a conviction for murder in the aid of racketeering under 18 U.S.C. 1959(a)(1) has to be death and a fine; or life imprisonment and a fine. It rejects the defendant's argument that it could only be a fine with no imprisonment or capital punishment. The 9th held that this made no sense, and did not comport with the statute's clear intent. The minimum sentence is life imprisonment.