U.S. v. Gallenardo, No. 07-30414 (8-28-09). The 9th affirmed a child porn conviction and sentence over challenges to the interstate jurisdiction nexus, reference to other acts, and the imposition of a mandatory life term. As to the last challenge,the sentence was imposed under 18 U.S.C. 3559(e) because the defendant had a state sex prior. He argued that his offense of conviction -- 18 U.S.C. 2251 -- had the applicable recidivist provision and should control. The 9th (Rawlison joined by Paez and Jenkins) hold that 3559 is more specific than 2251, and this the two statutes -- each establishing mandatory sentences -- can be reconciled. The 3559 focuses on priors that are felonies and where the victim was a minor; 2251 includes other offenses, and where the victim is not a minor. The 9th also affirms the use of defendant's state offense, which was for felony sexual assault, because it would have been a federal sex offense if there was an interstate nexus.

Case o' The Week: Eating Crow, Comprehensive Drug Testing En Banc Decision

On more than one occasion, we've bemoaned the irony that the Ninth Circuit is home to the most technologically-advanced industries (and arguably, users) in the world, yet its digital search law is bogged down in old and inapposite analogies to briefcases and filing cabinets. See, e.g., blog on Giberson here.

This week, we happily eat crow. In what will be a leading Fourth Amendment decision for the Information Age, Chief Judge Kozinski persuasively explains why a search in a computer is different than a search in a briefcase and -- more importantly -- does something about it. United States v. Comprehensive Drug Testing,__ F.3d __, No. 05-10067, 2009 WL 2605378 (9th Cir. Aug. 31, 2009) (en banc), decision available here.

Players: En banc decision by Chief Judge Kozinski, dissents by Judge Ikuta and Judge Callahan.

Facts: In ‘02, the US Attorney’s Office for the N.D. of California began an investigation of “Balco,” a lab suspected of providing steroids to professional athletes. Id. at *1.

A separate company, “Comprehensive Drug Testing” (“CDT”) had been hired by Major League Baseball to test the urine of all professional baseball players for drugs. Id. The players had agreed to undergo these tests with the assurance that the results would remain anonymous and confidential. Id.

When the feds heard of ten players who had tested positive, they got a grand jury subpoena for all CDT testing records and specimens for all players. Id. CDT and the players moved to quash the subpoena.

On that same day the feds served a search warrant for records of the ten suspected players. Id. Though the warrant was for ten players’ records, the feds seized and reviewed computer records of hundreds of other players. Contrary to the search warrant requirements, the feds made little or no effort to segregate responsive data in the computer search from records of other drugs tests. Id. at *5. As one district judge later put it, the government demonstrated a “callous disregard for the rights of those persons whose records were seized and searched outside the warrant.” Id. at *5.

The feds then used information from this search in support of further subpoenas. Judge Illston, of the Northern District of California, quashed this latest round of subpoenas. Id. at *2.

A majority of a three-judge panel endorsed the search and subpoena, sparking a compelling dissent from Judge Thomas. The case went en banc. (Interestingly, none of the original three judges were on the en banc panel).

Issue(s): “This case is about . . . the procedures and safeguards the federal courts must observe in issuing and administering search warrants and subpoenas for electronically stored information.” Id. at *1.

Held: “This was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause.” Id. at *9.

Of Note: CDT will spark a dozen law review articles (and maybe a cert. petition); in this brief space we’ll touch on just a few of its key points. First, CJ Kozinski flatly rejects the government’s “plain view” trope – that theory which allows agents to rummage through computer files at will, because the data is in “plain view.” In future warrant applications, the Chief Judge warns, the government should “forswear reliance on the plain view doctrine.” Id. at *7. If law enforcement balks at such a waiver, the warrant should require initial review by an independent third party under supervision of the court. Id.

Next, the government should be honest. A lack of candor about offers to retain the data until a motion to quash can be heard “shall bear heavily against the government.” Id.

Third, the government must limit computer searches to data identified in the warrant. For example, it can’t run a search for the “hash files” of known child porn while looking for urine testing records. Id. at *7.

Finally, the person segregating the seized data has to be either a government techie who is not the investigating agent, and who promises not convey information about the non-responsive files, or an independent party (like a special master). Id. at *9. Where the search is of a third party’s computer not suspected of any crime (as in this case), “the presumption should be that the segregation will be conducted by . . . an independent third party selected by the court.” Id.

How to Use: The new search rules of CDT are recapped with great clarity at the end of the decision. Id. at *15. Simply stated, one must start with CDT for any computer, cell phone, or remote server search.

For Further Reading: The only downside of CDT is that is overshadows two great public defender victories this week. In Crickon v. Thomas, Steve “the Energizer Bunny” Sady won a habeas where the BOP gave no rationale explanation for excluding his client from its drug treatment program. 2009 WL 2591680 (9th Cir. Aug. 25, 2009). And in United States v. Gonzalez, Rebecca Pennell convinced the Ninth to put the brakes on Herring and the extension of the good faith exception to warrantless car stops. 2009 WL 2581738 (9th Cir. Aug. 24, 2009).

Congratulations to both Steve and Rebecca for big wins. Gonzalez, in particular, may turn out to be an important beachhead against the Herring invasion.

"Eating Crow" image from http://bondpapers.blogspot.com/2007_12_01_archive.html .


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

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U.S. v. Guzman-Mata, No. 08-10061 (8-27-09). The 9th (N. Smith joined by Noonan and Berzon) hold that alien smuggling under 8 U.S.C. 1324(a)(1)(A) is categorically an "alien smuggling offense" triggering a +16 level adjustment under the Guidelines, 2L1.2(b)(1)(A). The argument was that the family exception in the statute for assisting spouse, child, or parent in being smuggled takes it out of strict categorical application. "Nice try," says the 9th, but that provision is an affirmative defense, and the elements setting out the offense categorically apply. The government does not bear the burden of showing that the exception does not apply.

U.S. v. Comprehensive Drug Testing, Inc., No. 05-10067 (8-26-09) (en banc). This is the en banc appeal related to the steroids in baseball litigation. The box score has a majority of this en banc (Kozinski writing) laying down new guidelines when it comes to search warrants for electronic information. The 9th dismisses the government's appeal of the quashing of a subpoena because it failed to appeal another order, and it was bound by issue preclusion. The 9th also held that Fed. R. Crim. P. 41 was an appropriate vehicle for seeking the return of property improperly seized. As for the new protocol, the 9th takes this case and uses it to extend and refine U.S. v. Tamura, 694 F.2d 591 (9th Cir. 1982), which concerned the procedure to be followed with documents that are intermingled with seizable materials. That case preceded the information/computer age. Under the new guidelines for searches of electronic data, (1) magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases; (2) segregation and redaction must be done by either specialized personnel or an independent third party. There must be screening; (3) warrants and affidavits must disclose the risks of destruction of information; (4) the government's search protocol must be designed to uncover only information for which it has probable cause, and only that information may be examined by case agents; and (5) the government must destroy or, if lawful, return non-responsive data, keeping the magistrate informed. These protocols will be the guides for searches under warrants. The dissents argue that the protocols are dicta, and that the majority did not need to lay down these lines when the case law should be allowed to develop.

U.S. v. Cardenas-Mendoza, No. 07-10553 (8-26-09). Is there life after death for Jenks? And, can death be harmless? The answers are "yes" and "yes." The defendant was charged with importation of meth across the border. The defense was "drugs? What drugs? I loaned my truck to 'Paco' and know nothing else." The agents give a different version, replete with nervousness, secret complicated compartments in the pick-up, and the defendant mentioning drugs first. One agent testified before the grand jury. Subsequently, the court reporter at the grand jury passed away and the tape for the testimony was missing. The court still let the agent testify because the government had acted in good faith. The 9th (Walker joined by Thomas and Paez) said this was an abuse of discretion. The agent's testimony was important, and his memory then was probably better than months later, when he was testifying from notes. The testimony should have been stricken. Still, the government was not at fault. As for prejudice, well, the 9th found it was harmless error because of the other circumstantial evidence, and testimony. The 9th also held that the defendant was not entitled to TECS hit notice because it was not material to the actual stop, and there was no prejudice in the prosecutor mentioning a prior bad act (prior use of the compartment) in the opening when it was the only mention and was limited.

U.S. v. George, No. 08-30339 (8-25-09). The 9th (Thompson joined by Canby and Callahan) rejects constitutional challenges to SORNA. The 9th held that a defendant convicted of a federal crime had to register, and could not argue that he did not have to register because his state had yet to implement SORNA. The 9th also held that the requirement was not an invalid exercise of congressional power because the requirement affected interstate commerce. Finally, the 9th rejected the ex post facto challenge because registration is a continuing offense, and the defendant failed to register after he moved to Washington and after the statute had been enacted.

Crickon v. Thomas, No. 08-35250 (8-25-09). For a "good time," call the BOP, and tell them that the 9th sent you. Here, the petitioner argued that he should be allowed in the special drug abuse prevention program and be eligible for early release. The BOP categorically denied the program's early release eligibility to prisoners with certain prior convictions. Here, the petitioner had a 1970 voluntary manslaughter although he was in prison for a meth drug offense that occurred in 2000. BOP argued that such exclusions, though, fell under the agency's wide discretion and comported with congressional intent to bar violent offenders from the benefit. The 9th (Rawlison joined by Paez and Jenkins) found that such rationalizations were post hoc, and that the BOP violated the APA in promulgating its rules that really had no basis (the distinction with violent/nonviolent pertains to the present offense). As the 9th summed up: "Although the BOP is afforded wide discretion in promulgating regulations governing the administration of 18 U.S.C. § 3621(e), it must comply with its obligation under the APA to articulate its rationale for exercising such discretion. The administrative record before us is devoid of any contemporaneous rationale for the BOP’s promulgation of a rule categorically excluding inmates with certain prior convictions from early release eligibility." The petition is granted.

Congratulations to AFPD Steve Sady, District of Oregon FPD Office (Portland). Another win for this paladin of prisoner due process.

U.S. v. Gonzalez, No. 07-30098 (8-24-09). You "Gant" always get what you want, which in this case, was the weapon from a car where the defendant was riding. The police arrested someone else for outstanding warrants; the defendant ended up also handcuffed in the police car. The police then searched the vehicle and found a firearm in the glovebox, which they said he was prohibited from possessing. While this case was on appeal (and remanded from the Supremes), the Gant decision came down. 129 S. Ct. 1710 (2009). Under Gant, the Supremes read Belton narrowly, so that police may search a vehicle incident to arrest only if the arrested person is within reaching distance of the passenger compartment of the car at the time of the search or it is reasonable to believe that the vehicle contains evidence of the offense of arrest. 129 S. Ct. at 1723-24. Here, Gant controls. But wait, the government protests, we acted in good faith, and under Herring, 129 S.Ct. 695 (2009), the inquiry as to the exclusionary rule should turn on the culpability of the police and the potential of exclusion to deter wrongful police conduct. The 9th (B. Fletcher joined by Paez and N. Smith) regarded this argument as a red Herring, because the Supremes' own rules of retroactivity as applied to Fourth Amendment precedent require that the case be applied to matters on direct appeal. Griffith v. Kentucky, 479 U.S. 314 (1987); U.S. v. Johnson, 457 US 537 (1982).

Congratulations to AFPD Rebecca Pennell of the Federal Defenders of Eastern Washington and Idaho.

Today is a "trifecta" for Judge Reinhardt, as he authors three opinions in an "attempt" to define crimes of violence and "unshackle" unfairness.

U.S. v. Saavedra, No. 08-10078 (8-21-09). The 9th (Reinhardt joined by Siler and McKeown) is shackled by precedent in finding that California's definition of attempt, which requires only "slight acts in furtherance" is the same as a "substantial step" at common law. Compare People v. Superior Court, 157 P.3d 1017, 1022 (Cal. 2007) with U.S. v. Sarbia, 367 F.3d 1079, 1085-86 (9th Cir. 2004). The 9th traces how "slight" can be understood as "substantial" in state interpretation, and how 9th Circuit precedent for the State of Nevada's interpretation of that phrase is co-extensive with California's. Reinhardt files a special concurrence bemoaning the state of precedent where "slight" and "substantial" mean the same thing. He states that it defies logic and common sense.

U.S. v. Rivera-Ramos, No. 08-10174 (8-21-09). The 9th (Reinhardt joined by Siler and McKeown) considers whether New York's definition of attempt -- conduct that comes within a "dangerous proximity" to the attainment of a criminal end -- is the same as the common law's "substantial step." The 9th follows the Second Circuit's holding that the two are co-extensive. Compare People v. Warren, 66 N.Y.2d 831, 832-33 (1985) with U.S. v. Sarbia, 367 F.3d 1079, 1085-86 (9th Cir. 2004). The Second Circuit had previously so found. U.S. v. Fernandez-Antonio, 278 F.3d 150 (2d Cir. 2002) (New York State's attempted robbery is an aggravated felony under the Guidelines). The Second's analysis of the co-extensive interpretation of the phrases was adopted.

U.S. v. Brandau, No. 06-10512 (8-21-09). The 9th (Reinhardt joined by Noonan and McKeown) confront the practice in the Eastern District of California where every defendant faces mandatory full body shackling at initial appearances. The judges of E. Dist. Ca. issued a general order requiring leg, waist, and hand restraints on all; they then revised the order, so that unless the court determines otherwise, all initial appearances must be in leg and waist restraints -- although this applies only to the Sacramento division. The other divisions are under the old mandatory order. The practice possibly has not changed. The challenge was by two defendants, on relatively minor non-violent offenses -- disorderly conduct in a national park and the other FEMA and mail false claims. Before the 9th can get to whether this policy makes sense, across the board, it needed the factual contours and to determine if this issue is not moot because of the repetitious but evading review doctrine and because the policy may be revived. Given the need to determine how exactly the policy was being implemented, the 9th remands the case to an out of district judge to hold a hearing on the practices. The 9th states that the judges of the E. Dist. Ca. might want to get counsel for representation purposes.

Case o' The Week: Encore, Encore - Prosecutorial Misconduct Means Brocade Retrial (maybe), Reyes

Just how many Ninth Circuit prosecutorial misconduct decisions must come down in one week to deter improper AUSA closing arguments?

More than two, apparently. United States v. Reyes,_ F.3d __, No. 08-10047, 2009 WL 2501920 (9th Cir. Aug. 18, 2009), decision available here.

Players: Decision by Judge Schroeder.

Facts: Reyes was the CEO of a Silicon Valley company, Brocade. Id. at *1. Reyes was charged with securities fraud, for backdating stock options that were given to company employees but not reported on the company’s books. Id. Reyes’s trial defense was that he relied, in good faith, on the Finance Department’s documentation when he signed-off on the backdated options; he argued that the Finance Department was well-aware of the practice. Id. at *2. The government countered at closing that Finance was unaware of the backdating, despite clear evidence in the government’s possession showing that Finance did in fact know (and SEC complaints had actually alleged as much).

Reyes was convicted after seven days of deliberation, id. at *7, and received a twenty-one month jail sentence and a $15 million fine. Id. at *2. He appealed.

Issue(s): “The issue that is dispositive of Reyes’ appeal concerns the government attorney’s misconduct in falsely telling the jury that the Finance Department did not know about the backdating, when the prosecutor knew that their statements revealed that they did.” Id. at *3.

Held: “We do not lightly tolerate a prosecutor asserting as a fact to the jury something known to be untrue or, at the very least, that the prosecution had a very strong reason to doubt. See Blueford, 312 F.3d at 968. There is no reason to tolerate such misconduct here.” Id. at *7.

[Ed. note: Ironically, Blueford is another infamous prosecutorial misconduct case involving a N.D. Cal. Assistant United States Attorney].

Of Note: There’s many big victories in Reyes, including a good holding on obstruction of justice. Id. at 11. The Ninth reverses the sentence of a co-defendant who was hit with an obstruction adjustment, when she earned a severance based on a “false” declaration from Reyes. Id. at *11. Unfair, held the Ninth, because there was no showing the defendant was responsible for the declaration, instead of defense counsel. Id.

In the ND Cal., nothing earns the judicial fish eye quite as much of late as a severance motion based on exculpatory co-defendant testimony. Reyes illustrates that if a severance declaration promises exculpatory testimony, the Court will be very much looking forward to that testimony in the severed trial. Id. at *11.

How to Use: Does anyone file prophylactic in limine motions flagging improper closing arguments for prosecutors? Granted, this is an insulting strategy – it sort of assumes the AUSA will act unethically. Sometimes, though, one wonders if it is necessary.

Last week, the extraordinarily high-profile Reyes case was reversed for improper closing argument (this Brocade case was a big news item in San Francisco, where the case was tried). The very next day, the Ninth issued another stern opinion on prosecutorial vouching. United States v. Harrison, No. 08-10391 (9th Cir. Aug. 19, 2009).

That same day, before the ink on these decisions had dried, improper argument in a federal San Francisco bank robbery trial sparked a blistering lecture from the bench and pushed the case to the brink of a mistrial. United States v. Johnson, CR-08-0251, MMC (N.D. Cal.). The Honorable Judge Chesney noted, with considerable displeasure, the irony of this problem arising the same week the Brocade decision was handed down -- and in the same federal district, to boot.

For Further Reading: The district judge in Reyes is the Honorable Charles R. Breyer. Another important decision arising from that court last week was United States v. Chaudry, C 03-40210 CRB (N.D. Cal. Aug. 17, 2009), Ord.

Chaudry is a very thoughtful decision on mental health issues and competency arising after trial, and before sentencing. Judge Breyer holds that an incompetent, convicted defendant cannot be held up to the maximum statutory term for the crime of conviction, and instead must be evaluated for “risk” and – potentially – released. The order will be published, and is worth a close read.

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


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U.S. v. Harrison, No. 08-10391 (8-19-09). Is this a case about "My Fair Constitution?" The defendant -- named Rex Harrison -- thought it would be lovely if he parked somewhere, far away from the cold night air. He did so at a military beach on Oahu. The beach had a curfew, and so the MPs wanted to get him out and possibly back to church on time or at least on the street where he lived. In the ensuing fracas, the defendant either struck the officers, was abusive, and tried to flee; or he was polite and courteous, and was abused himself by the officers. He was, as Kozinski alludes, someone who had "the milk of human kindness by the quart in every vein." Nonetheless, the jury convicted him of two counts of assault on a federal officer under 18 U.S.C. 111(b) (count 1) and 111(a) (count 2). The 9th (Kozinski joined by Callahan) chastise the prosecutors for vouching, implying they knew evidence of guilt, and forcing the defendant to say that government witnesses were lying. All this vouching ran afoul of black-letter law, and was error, egregious error. Indeed, the prosecutors seemed able to have vouched all night as it was a theme. Despite this vouching, the 9th concluded that the error was harmless because there was other circumstantial evidence that backed the MP's version, and that did not make the case fundamentally unfair (the rain of error falls mainly on the plain). Of course, we have grown accustomed to the harmless face. Still, the 9th stresses that the conduct was unbecoming, and that all it wanted was a trial somewhere, far away from the scold of unfairness. That, to the 9th, would be lovely. The 9th did reverse count 2 for an erroneous jury instruction on impeding (111(a)) that did not require an assault as required under U.S. v. Chapman, 528 F.3d 1215 (9th Cir. 2008). Dissenting, Bybee said that he would have reversed count 1 as well. This was a credibility determination between the defendant and the officers, and the prosecutor's actions were outrageous. Bybee's dissent is a good roadmap and discussion of prosecutorial misconduct, especially as it applies to vouching. He is especially good at showing that the questions were more than just vouching but had the effect of making the defendant seem paranoid. Bybee argues that the so-called circumstantial evidence fit into the two versions, and that other evidence was either collateral or not relevant (defendant, for example, was not charged with public intoxication).

Kudos to Peter Wolff of the FPD Office, D. Hawaii, for his efforts on appeal.

U.S. v. Thongsy, No. 08-30198 (8-17-09). Just because one curls up with a loaded firearm, does it mean possession in furtherance of a drug crime? It sure does when the weapon is on the defendant's sleeping bag (between two others), in a tent, surrounded by the wilderness and a large scale marijuana growing operation. Moreover, surveillance photos show the defendant in a certain shirt, which, when seized in the nighttime raid, was in the tent with a magazine in a pocket. The 9th (Ikuta joined by W. Fletcher and Bea) had little trouble finding sufficient evidence to support the jury verdict. The trial court did err in the jury instruction. The court instructed the jury that the weapon had to be possessed "during and in relation to the crime" as opposed to "in furtherance of." The error, however, was harmless.

U.S. v. Alba-Flores, No. 08-50135 (8-18-09). The defendant was serving a term of probation when the offense occurred, but the term was terminated before sentencing. The probation term prevented "safety valve" consideration, and exposed him to a 10-year mandatory minimum. Defense counsel got the state public defender to move for early termination. The state court changed the misdemeanor to an infraction, and then dismissed. It was nine days short of one year. The district court, though, did not give safety valve credit because it reasoned that the present offense occurred while serving probation that was three years. The 9th agreed (Fernandez joined by N. Smith). The reasoning was that the defendant was under a countable sentence, and that his efforts to get the sentence changed was somehow disingenuous. The 9th distinguished U.S. v. Mejia, 559 F.3d 1113 (9th Cir. 2009), because, there, the change in the prior sentence occurred before the instant offense. Dissenting, Kozinski takes the majority to task, accusing them of misreading Mejia, misinterpreting the Guidelines language, trying to interpret what the Mejia court supposedly really meant, and creating an unnecessary circuit conflict. Kozinski took issue with the sense of disingenuous, as the judges involved all wanted to do something for this hapless defendant.

U.S. v. Hector, No. 08-30271 (8-18-09). The issue is who gets to determine which conviction to vacate when a defendant has been convicted of multiplicitous offenses that violate double jeopardy. The defendant was convicted of both receipt and possession of child porn. Under Davenport, 519 F.3d 940 (9th Cir. 2008), this is multiplicitous when it involves the same images. The prosecutor wanted the court to sentence first, and then the prosecutor would dismiss one count. The court said that it should have the discretion. The defendant wanted to be sentenced for possession as opposed to receipt (the latter has a five-year mandatory and a higher guideline range). The court was going to sentence on the count it felt more appropriate; the prosecutor then moved to vacate the possession and the court sentenced on receipt. On appeal, the 9th (O'Scannlain joined by Goodwin and Fisher) reasoned that it should be the court that had discretion. There is discussion of a Rule 48 dismissal, and the deference shown to prosecutorial decision, but that only occurs when the defendant agrees with the dismissal. The court has the power to protect the defendant's rights and the discretion, as in plea withdrawals, to exercise it. The case is remanded for the court to exercise its own discretion. An interesting case for those charting separation of power doctrines.

U.S. v. Reyes, No. 08-10047 (8-18-09). The 9th (Schroeder joined by Reinhardt and Pollak) vacate a conviction and remand for a new trial based on prosecutorial misconduct in making a false assertion argument. The case was a complicated securities prosecution, with a focus on backdating stock options. Did the CEO know or did he rely on the financial department? If the financial dept knew, then the defendant's defense was bolstered; if the financial department did not know, then the CEO had to take the fall. The prosecutor knew that some witnesses from financial had stated that the department knew. The witnesses were high up in the management team, and had given statements to the FBI and in a parallel civil proceeding. One government witness, far down the line, had said that the department did not know, but she was unable to speak as to others, and later recanted. Given the special responsibilities of the government, it was misconduct to argue for no knowledge. This was the crux of the case, and the conviction had to be vacated. As for a co-defendant, the 9th agreed to vacate the sentencing because the court erred in assessing obstruction of justice points. The obstruction supposedly was her defense counsel's severance motion based on a declaration that the CEO defendant would give exculpatory testimony. When severed, the CEO was not called. The defense counsel said it was this decision; the court, though, punished the client. This was error.

Case o' The Week: Fourth Amendment Victory a Red "Herring?" - Monghur and Jail Calls

Judge Tallman writes for the Ninth and creates a new Circuit rule, recognizing a privacy right in a closed container despite a suspicious jail call and reversing the denial of a Fourth Amendment motion. United States v. Monghur,__ F.3d __, No. 08-10351, 2009 WL 2434396 (9th Cir. Aug. 11, 2009), decision available here.

Something smell fishy? That would be Herring.

Players: Another admirable win by D. Nev. AFPD Jason Carr. Decision by Judge Tallman, joined by Judges Hug and Hawkins.

Facts: Monghur, a felon, was in custody facing charges of attempted murder and battery. Id. at *1. On the day he was arrested he made three calls to his pal Bousley, wherein they discussed whether Monghur had been arrested with “the thing.” Id. Monghur asked Bousley to visit him in jail and pick up a key to an apartment, and told Bousley that he had put “the thing” in the closet in his room, “in the green.” Id. FBI agents searched the apartment (without a warrant) and recovered a handgun in a green opaque plastic container in the closet. Id. at *2. When charged with a § 922(g)(1) count Monghur challenged the search.

The magistrate and district court rejected the challenge, finding that Monghur’s taped jail calls extinguished any right of privacy that he might have had in the container. Id. at *2. Monghur appealed after a conditional plea (permitted by the USAO for the District of Nevada, still a novelty for the N.D. Cal. USAO.)

Issue(s): “The only question raised by this appeal is whether Monghur relinquished, abandoned, or otherwise waived [his expectation of privacy in the closed container] by disclosing the handgun’s existence and location in jail telephone conversations that he knew were monitored by law enforcement.” Id. at *2.

Held: “Nothing about his jailhouse conversations with Bousley, which law enforcement later overheard, operates as a ‘direct and explicit’ waiver of an expectation of privacy in a container hidden elsewhere . . . . Monghur’s efforts to conceal the subject matter based on what he said on the phone demonstrate both an objective and subjective intention to preserve privacy – not to relinquish it. We therefore reject the Government’s position that Monghur waived his expectation of privacy in the closed container through his statements on the telephone.” Id. at *4.

Of Note: The defense won this battle, but faces a worrisome war. In a long dicta diversion, Judge Tallman waxes fondly on the Supreme Court’s recent 5-4 decision in Herring v. United States, 129 S. Ct. 695 (2009). Id. at *5. Herring, you’ll recall, had Chief Judge Roberts revising the suppression remedy for Fourth Amendment violations, and curtailing the remedy to deter deliberate, reckless, or grossly negligent conduct, or recurring or systemic negligence.

Judge Tallman sends Monghur back to the district court for a decision on suppression, with a big helping of Herring on top. Id. The Ninth’s fishy advice bears close watching.

How to Use: Herring aside, the good new Ninth rule is that an (oblique) reference in a jail call does not surrender all privacy rights for things referenced in the call. The decision starts with very good language on privacy rights retained for containers in homes. Id. at *2. It also distinguishes out-of-circuit authority that views statements about the contents of a container as privacy waivers. Id. at *3-*4.

There’s much to commend in the opinion – a shame that it didn’t stop at its core holding, and instead continued on with the heavy-handed Herring hints on the suppression remedy.

For Further Reading: The Herring decision is available here. Academics debated how dangerous Herring would really be soon after the case was decided. See blog here. Decisions like Monghur support the “sky is falling” folks. If Herring fits Monghur’s facts, then Herring effectively created a “good faith” exception for the police outside of the warrant context (something the Supreme Court decidedly did not do).

Friends of the Fourth need to keep a close eye on Herring’s infiltration into the Ninth: it is a principle that could all too easily expand beyond the narrow limits of the holding itself.

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

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U.S. v. Riley, No. 08-50009 (8-13-09). How far can supervised release conditions go? Pretty far, but the 9th is starting to crack back on the overreach. Here, the defendant was convicted of child porn. In addition to the usual SR conditions, restricting material with sexually explicit content and other computer restrictions, the court imposed a restriction on "any material that relates to minors." The 9th (Berzon joined by Hawkins and Clifton) vacate and remand because such a condition is too sweeping. It would deal with any article on children, and does not seem to advance the goals of SR. The concerns about defendant's activities are more than adequately addressed by the other more specific conditions.

Congratulations to AFPD Kurt Mayer of the Central District Calif. (Los Angeles) for the win.

U.S. v. Jackson, No. 08-30231 (8-14-09). The 9th (Tashima joined by B. Fletcher and Thomas) holds that the crack Guideline reduction does not give the right to a retroactive sentence reduction when the previous sentence was a imposed under a mandatory minimum and the sentence below the mandatory minimum was the result of cooperation. The sentence below the mandatory was a result of cooperation allowing the court to sentence without being controlled by the mandatory minimum of 120 months.

Richter v. Hickman, No. 06-15614 (8-10-09)(en banc). In an en banc decision, the 9th (Reinhardt writing) granted petition's writ for IAC. The petitioner was alleged to have committed murder in a robbery gone bad. He alleged self defense. The case turned on circumstantial and forensic evidence. Indeed, the issue of blood -- serology, pathology, and spatter -- became a central evidentiary issue in the case. Despite this, defense counsel failed to conduct any forensic investigation whatsoever on the blood evidence. He decided on a defense without looking at the blood evidence, and without consulting any experts. If he had, expert testimony would have helped support his version of the events, and would have enabled defense counsel to cross effectively, and present his own experts and evidence. Dissenting, Bybee and others argue that the majority failed to recognize the pressures faced by trial counsel (time and resources) and that he should be excused because he did present a viable coherent defense.

U.S. v. Monghur, No. 08-10351 (8-11-09). "The Thing," said the defendant in a monitored call from the jail, was "in the green." The call was to a friend, and referenced something in a girlfriend's apartment. The police (8 of them) paid a visit, got consent to search the apartment from the girlfriend, and in the closet in a room where the defendant sometimes slept, a green plastic container was found with -- surprise -- a firearm in it. The police seized it. Eventually the defendant entered a conditional plea and took the issue of seizure up. The 9th (Tallman joined by Hug and Hawkins) held that the seizure violated the Fourth Amendment. Sure the police had consent to search the apartment, but they did not have consent to look into sealed containers where the defendant or any person had a reasonable expectation of privacy. There was also no exigent circumstances despite the fact that children lived in the apartment. The government's presented argument was that the defendant had consented because he knew the phones were monitored. The 9th hung up on this argument. It was unavailaing because the defendant did not identify the contraband. Indeed, he spoke in a code (i.e. "the thing" meant firearm -- not the most sophisticated code, but still the word could have meant a variety of things). This is different than telling a police officer that contraband was somewhere, which has been held as consent. Strangely, despite the Fourth Amendment violation, the 9th did not order suppression, but instead vacated the conviction, and remanded so the district court could consider the exclusionary rule in light of Herring, 129 S.Ct. 695 (2009). In Herring, the Supremes stated that the high costs of the exclusionary rule are triggered where the police action is "sufficiently deliberate" to warrant exclusion as a remedy. Negligence might not be enough (it was not in Herring, which involved a mistaken entry in a computer database). Still, it seems that the police should have sealed the apartment, as the 9th alludes to, and ask for a warrant based on the information and experience.

Congratulations to AFPD Jason Carr of the Nevada (Las Vegas) FPD office for the win.

U.S. v. Vanderwerfhorst, No. 07-30336 (8-6-09). In this sentencing appeal, the defendant argues that the court did not comply with the necessary procedures, such as Rule 32 notice, nor did the court make the necessary findings. The 9th (Tallman joined by Beezer and M. Smith) affirmed the sentence. First, objections were not made at sentencing, and so the review was plain error. That is a tough standard to meet, and the defendant did not. The 9th found that the sentence (168 mos as opposed to the Guidelines 120 mos) was a variance and not a departure, and so Rule 32 notice did not have to be given, and that counsel should have been aware of the facts supporting a variance. The 9th also found that the court had considered the 3553 factors. The sentence itself was above the Guidelines but below the max of 20 years, and was reasonable. This case involved possession of child porn, with some aggravating facts such as his destruction of the computer, and a prior. It is worthy of note though that the court's great concern about sexual predators, and defendant's "sickness," is not solved by the increase of 48 months. The defendant is still going to get out, and he will still face a lifetime of SR and sexual counseling. The extra time could be considered as being greater than necessary. Alas, the world of Rita / Gall / Kimbrough and plain error gives such great discretion to the court.

Case o' The Week: Right Target, Wrong Number, No Problem: Title III and Reed

The wiretap target is R--, but turns out that the line really belongs to J-- (and is, not surprisingly, primarily used by J--). Close enough, reassures the Ninth in a disappointing new Title III case. United States v. Reed, No. 06-50040, 2009 WL 2366556 (9th Cir. Aug. 4, 2009), decision available here.

Players: Decision by Judge N.R. Smith (above).

Facts: Reed and others were suspected of conspiring to manufacture and distribute PCP. Id. at *1. Reed, the target, was caught discussing the crime on monitored calls from a line subscribed to by co-conspirator Jackson. Id. The feds got a wiretap on this line, and within four hours learned the phone was (surprise!) actually primarily used by Jackson, not Reed. Id. at *1, *7. The feds reported this fact in an interim report to the authorizing judge four days later, and were allowed to continue the tap nonetheless. Id. at *2.

Reed (and others) were busted, their Title III challenge was denied, they were tried, convicted, and Reed got a life prison term. Id. at *4.

Issue(s): (Among many): “Appellants argue that, once authorities discovered that the [line’s] primary user was . . . Jackson, they should have immediately discontinued the wiretap. They contend that to continue listening to Jackson’s phone calls was akin to getting a search warrant for one house, searching the wrong house, and then even after discovering that it is the wrong house, continuing the search anyway.” Id. at *6.

Held: “We disagree with this analogy in light of the language of § 2518. . . Although the primary, known target was Reed, the objective of the wiretap was to intercept communications made over [the line] to identify the co-conspirators in the PCP manufacturing conspiracy . . . Neither the order nor the wiretap statute requires suppression of legally intercepted conversations merely because Reed was not the primary user of [the line].” Id. at *7.

Of Note: Reed’s frustrating holding tolerates a frequent wiretap abuse: the government makes a probable cause and necessity showing for Suspect B, when the real target of the tap is Suspect A. Judge Marilyn Patel of the Northern District of California identified precisely this problem and was troubled by it (though not, unfortunately, troubled enough to suppress). See United States v. Stepney, CR 01-0344 MHP (Ord.), at 26 (N.D. Cal. June 6, 2005) (“This court is of the view that the principle enunciated in Martin is an uncomfortable fit where, rather than simply being an unnamed interceptee as was the case in Martin, the interceptee at issue served as an actual pillar for the government’s justification of the wiretap.”)

It is hard to distill a clear new rule out of Reed’s new Title III holding – appears now that the court cares less about probable cause that a particular target was using a phone, and more that a particular phone was being used. Id. at *7. (Doesn’t the Fourth Amendment protect people’s privacy interests, and not places or things?)

How to Use: How does one limit Reed’s “moving target” holding? Well, Judge Smith emphasizes that Reed was in fact listed among the targets in the wiretap application for the Jackson line, and that were “others unknown” – so that helps mitigate the error in tapping the Jackson line. Id. at *7. Moreover, on at least one occasion Jackson at handed this phone to Reed, who did some drug business on the line, and evidence showed that the line was being used to further Reed’s PCP conspiracy. Id. It also helped that the feds reported the Jackson line to the authorizing judge relatively quickly. Id. Maybe (hopefully) in a case where the tapped line is less intertwined with the real target, Reed’s “close enough for government work” rule would be limited.

For Further Reading: Reed argued that the feds actually conducted an illegal wiretap of another of his phones, and transferred those calls to the Jackson line to make them look legally intercepted. Id. at *8. The Court dismisses this theory as “highly speculative.” Id. at *9. The defense evidence cited, however, sounds considerably stronger than the Court gives credit. Id. There have been examples of similar illegal wiretaps in Hawai’i, and an early illegal wiretap was strongly suspected by the defense in the above Stepney case. The Reed counsel fought this challenge hard and hired a phone expert to testify – they would be a good place to start if (or rather, when) this suspicion arises again.

Image of the Hon. N.R. Smith from http://www.ce9.uscourts.gov/jc2009/speakers.html . Cartoon from http://counter-surveillance-devices.com/tag/rf/

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

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U.S. v. Garcia-Villegas, No. 08-50503 (8-4-09). This is an appeal from a 1325 misdemeanor conviction for attempted entry. The defendant was seen hopping the fence. He subsequently gave a statement that he was an alien. The question for the 9th was whether mode-of-entry evidence corroborated a defendant's admission of alienage. In U.S. v. Hernandez, 105 F.3d 1330 (9th Cir. 1997), the 9th held that mode-of-entry evidence was insufficient to corroborate a defendant's admission. In this case, the 9th (Noonan joined by O'Scannlain) hold that Hernandez passed on any one piece of evidence being sufficient or not, but that it was to be taken as a whole. Here, the evidence of other witnesses as to mode-of-entry corroborated the admission. Graber, concurring, takes issue with the casting of Hernandez, stating instead that Hernandez should be read narrowly as only encompassing mode-of-entry evidence admitted by the defendant. In the case here, the other independent witnesses buttress the statement.

U.S. v. Reed, No. 06-50040 (8-4-09). The defendants here were convicted of meth conspiracy. The sentence for two of them was life (a lot of meth), so the stakes were high. The 9th affirmed the convictions and sentences. The 9th (N. Smith joined by Pregerson and Hall) held that the defendants' challenges to the wiretap evidence were unavailing. The 9th affirmed the findings that the need for wiretaps was meet, that the contents were sealed, and that the statute was followed. The defendants had argued that the wiretap was for one phone that was mostly used by someone else. The analogy was a warrant for one house where someone else actually lived. The 9th brushed aside this objection, holding that the government proved that the phone was used for drug transactions and that was what the statute required. The 9th also found that data apart from the conversations, such as date of the call and how long it lasted, did not fall under the "conversation" part of the statute.

U.S. v. Faire, No. 08-10448 (8-4-09). Park rangers were concerned with poaching at the Kings Canyon National park, and so established a roadblock to inquire, briefly, of motorists whether they had been hunting. Hunting is not permitted in the park. The defendant was stopped, and a strong odor of alcohol was smelled on his breath. He was charged with driving under the influence. The challenge was that the suspicionless stop triggered City of Indianapolis v. Edmond, 531 US 32 (2000). The 9th (Silverman joined by Clifton and M. Smith) held that the roadblock was fair game, and that the Edmond was off target because the roadblock was not for general crime control. A roadblock for general crime control was prohibited by Edmond; but a roadblock for specific purposes, such as sobriety in Sitz, or securing the border in Martinez-Fuerte, was permitted. The roadblock here was for the specific purpose of wildlife (think Bambi) protection, and there was a real problem or concern. The roadblock was also designed to address that concern, although the 9th goes a little far afield in saying that the roadblock was for "educational" purposes (hunting in the park is bad...and illegal) and because such stopping will catch poachers before they poach again. Finally, the stop was quick and focused. Moreover, motorists could bear this contact with rangers, as contact was not intrusive and could be expected if for a map or directions or for warnings.

Moore v. Czerniak, No. 04-15713 (7-28-09). The 9th issues an order and opinion that reaffirms its decision granting petitioner's habeas for IAC. The 9th denied en banc review, though over two voracious dissents. The petitioner confessed to a murder. The police violated his constitutional rights for counsel (he asked) and by promising leniency. Indeed, the police actions were very questionable (query: And Scalia says that modern police departments are professional and so we do not need the exclusionary rule?). The petitioner also supposedly told a family member and a friend. The state conceded that constitutional violations took place. So, did defense counsel file a suppression motion? No. He reasoned that the petitioner was not in custody (he was) and that others had been told. Defense counsel's theory was that the shooting was accidental. The petitioner was charged with felony murder and he plead "no contest" and received 25 years. Petitioner subsequently alleged IAC. The state courts found no prejudice as did the district court. The 9th (Rheinhardt with a concurrence by Berzon; dissent by Bybee) did. The 9th discussed the power of a confession, and the problems that the state would have getting the statement in. The statement was deemed involuntary and prejudicial. Berzon's concurrence distinguished between the analysis of IAC in not filing the motion and in advising petitioner to accept a plea. Bybee, dissenting, recounts the brutality of the incident, and would find that there were strategic reasons why counsel would not have filed the motion (other statements made, some mitigation). In the dissents from the denial of en banc review, Callahan argues that there is now a new rule requiring the filing of suppression motions in all cases (a bit overstated). Bea, in his dissent, focuses on the deference that should be given to the state's findings under AEDPA.

Congratulations to AFPD Barbara Creel of the Oregon FPD (Portland) for the win.

U.S. v. Berger, No. 08-50415 (7-31-09). "For richer or poorer, in sickness and health...till death do us part," but does that include restitution orders? The third party here, Cornella Berger, argues that the mandatory restitution order to victims of a swindle and fraud engaged by her ex-husband, precludes her half of the community property. "Not so," says the 9th (M. Smith joined by W. Fletcher and Clifton), in affirming the district court. The restitution order under the Mandatory Victim Restitution Act includes that portion of the community property that would be awarded upon dissolution of a marriage to the innocent spouse of a criminally liable defendant. Her innocence does not trump the restitution order.

U.S. v. Higuera-Llamos, No. 07-10602 (7-31-09). How much worse could it get at trial in a 1326 case, where the defendant had been arrested and confessed. How about introduction of a prior judgement for, yes, a 1326, to prove "alienage." Too prejudicial, one might think. Not so, opines the 9th (Wallace joined by Farris and McKeown), because the district court redacted it, and issued a limiting instruction that the prior could only be considered on the issue of "alienage." Isn't this like shooting fish in a barrel? No, again opines the 9th, because the government had the defendant's confession, but there has to be some corroboration of alienage, and this provided it. The district court's acts, such as redaction and the limiting instruction, distinguished this case from U.S. v. Bejar-Matrecios, 618 F.2d 81 (9th Cir. 1980). In Bejar-Matrecios, a certified judgment of conviction was entered into evidence with no redaction nor limiting instruction. The 9th believes here that the jury can cabin the evidence as to alienage rather than say, he has a criminal nature.

U.S. v. Mincoff, No. 08-50058 (7-31-09). In this major conspiracy and enhancement appeal, the 9th (Rawlison joined by Canby and N. Smith) affirms the conviction and sentence. The 9th goes through all the issues, finding sufficient evidence to show that the defendant had intended to distribute the drugs beyond himself (the wiretaps did not help). In the course of the affirmance, one learns a lot about "fronting" drugs (getting now, paying latter....think of it as a narcotics hedge fund). The 9th rejects the arguments too relating to multiple conspiracies, and the failure to turn over Brady and Giglio materials. This is very fact based. As for sentencing, the 9th upheld a constitutional challenge for vagueness in regards to the sentence enhancement (a doubling from 10 to 20 years) for a prior under 21 U.S.C. 841(b). The argument was that the prior of possession of ephedrine with intent to manufacture meth was not a "felony drug offense" because the conduct that was involved was vague as ephedrine by itself was not a stimulant. The 9th makes short shrift, concluding that any reasonable person would equate possession with intent to make drugs and drug offense.

U.S. v. Benford, No. 07-50210 (8-3-09). Is counsel needed at a pretrial conference confirming the trial date? Or is it a Sixth Amendment violation? The 9th Graber joined by Rymer and Bea) said there was not a Sixth Amendment violation, but stressed that its holding was limited on the specific circumstances here. The defendant and a co-defendant were charged with armed bank robbery. At a short pretrial conference, defense counsel for defendant did not appear (he was "on his way"). The prosecutor also said that the defense counsel might have spoken to another AUSA about a possible continuance. The court reconfirmed the trial date. The 9th found that this would not be considered a crucial stage -- which would require presence of counsel -- because nothing of substance or significance happened (or did not happened). Defense counsel could have filed a continuance later; no issues were resolved, or raised. As the 9th wrote: "We limit our holding to what happened (and what did not happen) in this case; we do not hold that a status conference never can be a critical stage, but only that this one was not." The 9th also said that the claim was whether absence was per se ineffective. In the ruling here, an IAC claim on post-conviction was not precluded. The 9th considered whether, under a 924(c) charge, the mandatory minimum should be 5 or, if the weapon was brandished, whether it should be 7 years. The Supremes in Harris v. U.S., 536 US 545 (2002) held that such a determination is judge-determined and is not an element of the crime. There was sufficient factual basis as the court had found that the defendant turned and pointed the gun at the teller, which had to be a "harrowing" experience. This encompasses "brandishing."

Case o' The Week: Failed Conspiracy Good Enough for Successful Prosecution, Mincoff

Is a defendant guilty of conspiring to distribute cocaine when he never actually possessed the cocaine - indeed, when the cocaine sought was never actually delivered?

Yep. United States v. Mincoff, No. 08-50058, 2009 WL 2342031 (9th Cir. July 31, 2009), decision available here.

Players: Decision by Judge Johnnie B. Rawlinson (above left), joined by Judges Canby and N. Randy Smith.

Facts: James Mincoff called Munoz in 2004 to ask if Munoz had access to cocaine, and then ordered eight kilos. Id. at *1. Munoz delivered, Mincoff took it and delivered it to his customer, then returned and paid Munoz’s accomplice for the drug. Id. In 2005, the government got a wiretap and caught Mincoff ordering six or seven kilos from Munoz. Id. at *1-*2. The delivery was delayed, the buyers got antsy, and this order gradually dropped down from 6, to 3, and then to 1 kilo. Id. at *2. Ultimately, Munoz never delivered so Mincoff never actually possessed cocaine for the 2005 (attempted) transactions. Id. at *2.

Both men were charged federally, Munoz flipped, and Mincoff was convicted at trial of conspiracy to distribute cocaine, attempt to distribute cocaine, and unlawful use of a communication facility. Id. at *1. The government had alleged in an information Mincoff’s prior conviction for possession of ephedrine with intent to manufacture meth; at sentencing the district court dubbed that prior a “felony drug offense” and doubled the mandatory minimum to twenty years. Id. at *8.

Issue(s): (Among many): 1. Fronting: Can the practice of “fronting” drugs without immediate payment be evidence of a conspiracy? Id. at *3-*4.

2. Conspiracy: Does “conspiracy to distribute cocaine require proof that one possessed that cocaine?” Id. at *8 (emphasis added).

Held: 1. Fronting: “We are persuaded by precedent from our sister circuits that evidence of fronting may support a conviction for conspiracy to distribute a controlled substance.” Id. at *4.

2. Conspiracy: “We adopt the rule articulated by our sister circuits that a narcotics distribution charge may be proven without proof of possession.” Id. at *9.

Of Note: The above are but two of the handful of new Ninth Circuit rules created in Mincoff. Judge Rawlinson holds that Mincoff’s ephedrine conviction qualifies as a § 841 prior that can double the mandatory-minimum sentence. Id. at *11. The Court also holds that § 841 isn’t void for vagueness as to the ephedrine prior. Id. at *12-*13.

Admittedly, none of these new rules are radical breaks from existing conspiracy or § 841 law in other circuits. Nonetheless, given the amount of new Ninth Circuit precedent forged in the case there is surprisingly little discussion of countervailing arguments. See, e.g., id. at *13 (rejecting in two sentences “rule of lenity” argument in support of constitutional vagueness challenge).

How to Use: For better or worse, Mincoff is a mandatory read for those defending federal drug and conspiracy cases. The decision discusses “fronting” in depth, and describes how fronting evidence can undermine “buy-sell” law for conspiracies. Id. at *4. It explains why there was enough evidence in the case to show that Mincoff and Munoz had agreed to the “essential terms of the planned transaction” with enough certainty to support a conspiracy conviction (although the pair never agreed on an amount of cocaine that was actually delivered). Id. at *5. The case explains that there was a “substantial step” taken towards an attempt to distribute a controlled substance: “[t]he only thing missing was the drugs . . .” Id. at *6. It discusses (and rejects) Mincoff’s arguments on a multiple conspiracies instruction. Id. at *7. Finally, it marches through the definition of “felony drug offense” for Section 841 priors, then rejects Mincoff’s challenge to the doubling of his mandatory minimum sentence. Id. at *11-*12.

In short, a drug defense must dodge many Mincoff minefields.

For Further Reading: For an excellent outline on how to discipline Conspiracy, that spoiled brat of the prosecutor’s nursery, see Jon Sands’ masterpiece here.




Image of the Hon. J. Rawlinson from http://levellers.wordpress.com/2009/05/07/supreme-court-possibilities-i-the-women/

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

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