U.S. v. Berger, No. 08-50171 (11-30-09). This is an appeal after a remand for resentencing on securities fraud. There are two interesting issues: (1) calculation of loss; and (2) standard of proof for such loss. The defendant was convicted of securities fraud. In assessing loss of 3.14 million, the court looked at the decline in stock values from other companies that had fraud disclosed. The amount of loss resulted in a +13 enhancement. On appeal, defendant argued that the court should have used the test for civil loss causation articulated in Dura Pharm., Inc v. Broudo, 554 US 336 (2005), which requires the fraud to have divulged to the stock market. This test was adopted in the criminal context by the 2nd and 5th Circuits. The 9th (M. Smith joined by W. Fletcher and Clifton) declines an expansion of Dura Pharm; instead, the test is one of "all harm that resulted from the acts or omissions of the defendant." This is distinguished from the "share price fell significantly after the truth became known." Dura Pharm at 347. The 9th reasoned that the civil test placed the burden on the plaintiff to show causation, and it was an ill fit for sentencing, and that the guidelines favored a broader net thrown. There is now a circuit split on this test. As for the standard of proof, the defendant argued that the enhancement of +13 required a clear and convincing standard, and not just preponderance. The 9th held that preponderance would work just fine; the 9th's jurisprudence in this error is complex, but in focusing on the offense of conviction (conspiracy), the loss is tied to the acts and there is not a cross reference. The 9th acknowledges a totality of circumstances approach but here rests on previous precedent where the enhancement for loss in a fraud case with a conspiracy conviction was preponderance. The 9th did remand for another resentencing because the approach the district court used -- looking at other companies -- was an abuse of discretion. The fraud here was not disclosed, and using other companies, at other times, strayed from the focus on this act.

Case o' The Week: From Bad to Worse - Mohsen and Mid-Deliberation Contact with Jury (Without Counsel)

To have the federal judge presiding over your civil case refer you to the USAO for perjury prosecution is bad news. To get caught planning your escape to the Caymans on the eve of your trial is worse. And then, when a jailhouse snitch accuses of you plotting to kill the judge: well, it is all downhill from there. United States v. Amr Mohsen, __ F.3d __, 2009 WL 4067632 (9th Cir. Nov. 25, 2009), decision available here.

Players: Per curiam decision by Judges B. Fletcher, Kleinfeld and DJ Duffy. Hard-fought appeal by SF appellate guru Dennis Riordan.

Facts: (Ed. Note: There are remarkably few facts recited in this unfortunately brief per curiam decision, so the facts below are gleaned from news articles, briefs, and docket entries). Amr Mohsen was a successful Silicon Valley inventor who was charged with perjury in relation to a civil patent dispute. Days before that perjury trial was scheduled to begin, Mohsen (who was on bail) was arrested as he prepared to flee to the Caymans. See article here.

While in jail awaiting trial on perjury (and now, contempt) charges, Mohsen allegedly tried to hire a fellow inmate to threaten witnesses and to kill N.D. Cal. District Judge William Alsup. Id. This gambit sparked a superseding indictment with attempted witness tampering, solicitation to commit arson, and solicitation to commit murder charges.

Because of the threat against Judge Alsup, ED Cal Senior District Judge Shubb (above right) took and tried the case. Mohsen, 2009 WL 4067632, *1. During the bifurcated trial the jury sent a note requesting the indictment: the district judge responded to the note without first informing the parties. Id. at *2. Mohsen was convicted of some of the counts but beat the solicitation to murder charges; he was sentenced to 204 months. J&C Ord.

Issue(s): (Among many) “Mohsen contends that the judge should have consulted the parties or counsel before responding to the jury’s request to see the indictment with the ‘specific charges.’” Id. at *2.

Held: “He is correct. The judge erred. However, the error was harmless beyond a reasonable doubt.” Id.

Of Note: The new law in this case is not that it is error for a judge to respond to a jury note without getting the input of counsel. The (arguably) new law is instead that this mistake (in this setting) is not structural error that requires reversal and new trial, but is instead a problem subject to harmless error analysis on appeal. Id. at *2.

The panel cursorily distinguishes Judge Berzon’s long discussion of this line of law in the Ninth’s infamous “button” case: “Unlike the communication in Musladin, the jury note here was not a question about the law governing the jury’s deliberations.” Id. at *2.

The decision's terse analysis shines little light on important issue: when is a mid-deliberation communication with the jury, where defense counsel is not informed or involved, a “critical stage” that requires automatic reversal? Impossible to glean a rule from the few paragraphs in the case.

How to Use: Counsel-less conversations between the judge and jury used to be a reversal bullet. Now there’s a regrettably high chance that such a problem will be sidestepped by the Ninth’s redemptive “harmless error” review. Thus, if confronted with mid-deliberation communications between a judge and jury (where you haven’t been invited to the party) develop the prejudice record while in trial. That prejudice showing, unfortunately, may be necessary when battling harmless error review on appeal.

For Further Reading: For an interesting article summarizing the devolution of this case from civil litigation to attempted murder charges, see here. For a compelling summary of the defense attack on this conviction, see Dennis Riordan’s letter summarizing the appeal here. For a recap of this appeal, including Riordan’s plans to seek rehearing en banc, see the San Jose Mercury News article here.


Image of the Hon. Judge William B. Shubb from http://207.41.19.15/pico/pico530.nsf/834468cf608231b488256b11005e0a18/53a9cadcdc6b62ce8825707a0055968c?OpenDocument

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



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U.S. v. Mohsen, No. 07-10059 (11-25-09). At trial, defendant was convicted of conspiracy, fraud, perjury, subornation of perjury, obstruction of justice, and contempt of court. On appeal, he raised numerous issues attacking the sufficiency of evidence, jury instruction error, prosecutorial misconduct, and sufficiency of the evidence. In a per curiam opinion, the 9th (B. Fletcher, Kleinfeld, Duffy) affirmed the convictions and sentences. Turning to the more interesting issues, defendant argued that he should have gotten an instruction on substantive patent law (the offense involved fraud and perjury in relationship to patents). The 9th pointed out that since he did not asked for an instruction, review was for plain error. The 9th found that the case was about fraud, and not patents, and so there was no error. The 9th found error in the court sending a note to the jury when they requested a copy of the indictment. Counsel and defendant should have been present. However, the error was not structural and was harmless. In the context of the contempt of court, this charge arose when the defendant sought to apply for a passport to possibly flee in violation of the pretrial release. The 9th held that a grand jury could bring such a charge, and that evidence of the "plan" discovered in a note with his wife's name violated the marital privilege. The discovery was pursuant to a search warrant to search for evidence of witness tampering, solicitation of a crime of violence, obstruction, and faking mental illness or incompetence. There was no evidence presented that defendant intended to deliver this message to his wife. There was no Massiah violation because the search concerned different crimes, and there was sufficient evidence (applications for an Egyptian passport, reservations for travel, visits to consulates, and copies of documents). In terms of prosecutorial misconduct, the 9th concludes that: "I think" therefore I err. The prosecutor's rhetorical device of stating "I think..." during closing argument was error but it was harmless. Defendant's IAC claims need to be developed in post-conviction proceedings. The court did not err in finding 40 million dollars of intended loss, and a +17 adjustment was not error.

U.S. v. Tupuola, No. 08-10422 (11-24-09). Defendant was convicted of selling crack, but in 2000 was sentenced as a career offender under USSG 4B1.1. He had argued for a downward departure based on the disparity between the crack guidelines (51 to 63 months) and the career offender guidelines (188 to 235 months). The district court acknowledged it had the authority to depart, but declined to do so, and sentenced the defendant to 188 months. Subsequently, several years later, as a result of the Sentencing Commission addressing the crack disparity with powder cocaine, the guidelines for crack were made retroactive. Defendant moved the court for a reduction. The district court denied the motion, reasoning that its sentence was based on the career offender guideline and not the crack guidelines. The 9th agreed. In an opinion authored by Beezer, and joined by Graber and Fisher, the 9th held that it has recently decided that career offenders are not eligible for sentence reductions under the amendment. U.S. v. Wesson, No. 08-30177, 2009 WL 3336020 (9th Cir. Oct. 19, 2009). The 9th did not allow a reduction even if the argument for disparity was raised because the sentence was really "based on" the career offender guidelines. "Based on" is more than merely considering others factors. See U.S. v. Bride, 581 F.3d 888 (9th Cir. 2009).

Case o' The Week: Five Federal Circuits, Jumping on a Bed, Three Fell Off and Bumped Their Heads - Mahan

In Mahan, the Ninth creates a new rule and joins five other federal circuits that have held exchanging guns for drugs is using firearms "in furtherance" of drug trafficking, in violation of 18 USC § 924(c). United States v.William Mahan, __ F.3d __, 2009 WL 3807100 (9th Cir. Nov. 16, 2009), decision available here.

(Or, arguably, the Ninth has joined two other federal circuits that have so held in a published decision . . . .)

Players: Decision by Judge O’Scannlain (left), joined by Judge N. Randy Smith and Senior District Judge Wolle.

Facts: Oregonians Zane and Shawn offered to sell stolen guns to defendant Mahan. Id. at *1. The three smoked some meth while discussing the deal, then settled on trading the guns for 1/8th of an ounce of meth and $700. Id. Among other things, Mahan was convicted at trial for 18 USC § 924(c), possession of a gun “in furtherance” of a drug transaction. Id. Mahan’s Rule 29 motion was denied.

Issue(s): “We must decide whether an individual who trades drugs for guns possesses the firearms ‘in furtherance of’ his drug trafficking offense.’” Id. at *1.

Held: “Five other courts of appeals have confronted cases factually similar to this one, and all have either decided or assumed without deciding that a defendant who, like Mahan, received firearms in exchange for drugs possesses those firearms ‘in furtherance of’ a drug trafficking offense.” Id. at *2. “These cases demonstrate the common sense proposition that when one accepts a gun in exchange for drugs, the gun is an integral part of the drug sale because without the gun - the ‘currency’ for the purchase - the drug sale would not take place.” Id. at *3. “In light of the unanimity and clarity of our sister circuits’ precedent, we decline Mahan’s invitation to create a circuit split, and hold that a defendant who accepts firearms in exchange for drugs possesses the firearms ‘in furtherance of’ a drug trafficking offense.” Id. (emphasis added).

Of Note: The Mahan Court suggests that five other circuits have unanimously adopted this panel’s new § 924(c) rule. That suggestion bears further scrutiny. Mahan cites the unpublished Fourth Circuit decision, Boyd. Boyd, however, was issued in 2006: before memorandum dispositions became “cite-able” under new Federal Rule of Appellate Procedure 32.1. Indeed, the Fourth Circuit “disfavors” citation of its unpublished decisions issued before January 1, 2007. See U.S. Ct. App. 4th Cir. Rule 32.1.

The cited, two-page First Circuit memorandum disposition, Dolliver, was at least issued after the inane new rule that permits the citation of mem dispos as of January 1, 2007. First Circuit Rule of Appellate Procedure 32.1.0, however, limits the citation of mem dispos for their “persuasive” value and explains that they are not binding precedent. (That rule also requires parties to note that these decisions are “unpublished” in their briefs – a fact not mentioned in Mahan).

Of the three circuits with published decisions on this § 924(c) issue, one has “assumed without deciding” that guns traded for drugs are used “in furtherance” of a trafficking offense.

In short, only two circuits have held in a published decision that this type of “guns-for-drugs” trade is a sufficient nexus to support a § 924(c) conviction. The Mahan panel hangs the Ninth Circuit’s new § 924(c) rule on the “unanimity and clarity of our sister circuits’ precedent”: not quite as impressive a wall of authority as it appears at first glance.

How to Use: This is an infrequent fact pattern, but if it comes up an objection is worthwhile. As discussed above, the phalanx of circuit authority may not be as formidable as suggested in the Mahan opinion, and the Supreme Court may end up clarifying the real meaning of “in furtherance” in the Section 924(c) statute.

For Further Reading: The citation of memorandum dispositions is bad for indigent defense. The classic mem dispo quickly affirms a conviction or denial of a motion in a down-and-dirty document with little analysis and few facts. Bringing these bastard children of the judiciary into the case law clan infects clean jurisprudence and principled analysis with sloppy (and often, defense-hostile) reasoning.

For a contrary view, see the interesting article on the “new” rule allowing citation of mem dispos – and defenders’ responses. Stephen R. Barnett, The Dog that Did Not Bark: No-Citation Rules, Judicial Conference Rulemaking, and Federal Public Defenders, 62 Wash. & Lee Rev. 1491 (2005), available here.


Image of the Hon. Diarmuid O'Scannlain from http://www.abovethelaw.com/images/entries/diarmuid%20o%27scannlain%20diarmuid%20f%20o%27scannlain.jpg

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

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U.S. v. Mahan, No. 08-30475 (11-16-09). An adult son staying in touch with his mother is commendable; calling her to assess market interest in stolen firearms says something else. In any event, defendant called mom to see if there was interest in the stolen weapons. Mom's boyfriend was interested, and an arrangement was concluded where the guns were traded for $700 and 1/8 ounce of meth. Eventually, the defendant was arrested and charged with possession of a firearm "in furtherance of" a drug trafficking offense under 18 U.S.C. 924(c). On appeal, defendant argues that the court should have granted a judgment of acquittal. The 9th confronts the issue of whether receiving guns in exchange for drugs possesses those drugs in furtherance of drug trafficking. The 9th holds "yes." In its opinion (O'Scannlain joined by N. Smith and Wolle), the 9th first rejects defendant's definition of "in furtherance" as evidencing intention to use the guns to promote drug trafficking. The definition remains one of advancing or helping, and there must be a nexus between the guns and the underlying offense. The 9th goes on to reason that using guns as currency to gain drugs is in fact promoting drug trades and trafficking. The 9th joins five other circuits that have so held. The Supreme's decision in Watson does not control because it deals with "use" as opposed to "further."

Case o' The Week: Raising a Ruckes Over Car Searches: Ruckes and "Inevitable Discovery" Post-Gant

The Supreme Court's decision in Gant squelched the much-abused Belton rule, which gave the police carte blanche to search a car when a suspect within was arrested -- even if the suspect posed no danger, and was actually far away from the vehicle, in cuffs and safe in the back of a patrol car. (Gant available here).

Is it too much to hope that the Gant case would also eliminate the equally-abused "inevitable discovery" doctrine, that permits the search of a car after an arrest, before a car is impounded and towed?

Yep. United States v. Ruckes,__ F.3d __, No. 08-30088 , 2009 WL 3719209 (9th Cir. Nov. 9, 2009), decision available here.

Players: Decision by Judge Tallman (upper right). Hard-fought case by WD Wa. AFPD Miriam Schwartz.

Facts: Ruckes was stopped by a Washington State Trooper. Id. at *1. When he learned Ruckes was driving on a suspended license, the Trooper put Ruckes in the back of his patrol car. Id. The Trooper searched the car and found crack and a gun: Ruckes was charged with felon in possession, possession of crack for sale, and a § 924(c). Id. at *2. The district court denied Ruckes’ suppression motion, holding (pre-Gant) that this was a permissible car search under Belton or, alternatively, that the Trooper was going to impound the car and therefore the gun and crack were subject to inevitable discovery. Id. Ruckes appealed after a conditional plea. Id. at *1.

Issue(s): “[Ruckes] maintains that Washington State Trooper Kenyon Wiley’s search was not valid incident to his arrest because he was not arrested until after the contraband was located within the vehicle.” Id. at *1.

Held: “After this case was submitted for decision, the Supreme Court handed down Arizona v. Gant, . . . 129 S.Ct. 1710 (2009), which limits the applicability of Belton . . . . Because we find that Trooper Wiley’s search of Ruckes’ vehicle does not fit within . . [Gant’s] narrow situations to satisfy the search-incident-to-arrest exception to the warrant requirement, we hold that this search cannot be sustained on this theory under the Fourth Amendment. However, because the district court did not err in alternatively holding that the drugs and firearm would have been uncovered during a routine inventory search of the vehicle upon impound, we affirm its denial of the motion to suppress under the doctrine of inevitable discovery.” Id. at *1.

Of Note: This a disappointing result for the defense, but not entirely unexpected. In Gant, a divided Supreme Court chucked its (heavily-abused) rule that it had created in Belton, permitting a search of a car incident to arrest even when a suspect was cuffed and in a patrol car. Gant, 129 S. Ct. at 1719. The Gant Court did not, however, eliminate the “inevitable discovery” doctrine for searches of cars that will be towed. Disappointing, but not too surprising, that the Ninth would hold that the “inevitable discovery” doctrine survived Gant.

How to Use: It is a pleasant surprise to find some good, strong limiting language on the use of the inevitable discovery exception at the end of this decision. Id. at *5. Judge Tallman writes, “We emphasize . . . that the inevitable discovery doctrine will not always save a search that has been invalidated under Gant.” Id. at *5. The government bears of burden of showing the car would have been impounded, and speculative facts won’t work: the theory “focuses on demonstrated historical facts capable of ready verification or impeachment.” Id. at *5. The use of this exception must be limited and evaluated on a case-by-case basis: “To hold otherwise would create an impermissible loop-hole in the Court’s bright-line Gant determination.” Id. at *5. In short, while we’ll be fighting car impound searches after Ruckes, the opinion gives us some good ammo to help in that fight.

For Further Reading: A brighter spot than Ruckes was last week’s order denying rehearing en banc in the exquisite Amezcua-Vasquez decision. See United States v. Javier Amezcua-Vasquez, No. 07-50239 (9th Cir. Nov. 10, 2009), order available here. You’ll recall that case reversed an in guideline illegal reentry sentence because the high sentence was “unreasonable” under Booker and Section 3553. Panel decision available here (Judges Canby, Kleinfeld, and Bybee - big victory by San Diego AFPD Janet Tung).

It is a great case, and its key holding is that old crimes that create dramatic offense level increases (like the +16 specific offense adjustments for illegal reentry) can generate guideline sentences that are unreasonable under Section 3553. (Ed. Note: The same rationale would apply to old priors that increase the offense level in gun cases under Section 2K2.1).

Judge O’Scannlain (and CJ Kozinski, and Judges Gould, Tallman, Callahan, Bea, and N.R. Smith) dissent from the denial of rehearing, and give us valuable language on just how broad and powerful Amezcua-Vasquez is. Judge O’Scannlain’s dissent is a great primer on how to use the decision: a good start when exploiting the “defendant-specific” basis for attacking an in-guideline sentence.

Image of the Hon. Richard Tallman from http://www.ce9.uscourts.gov/cm/articlefiles/73-GSA_Ribbon_450x335.jpg.


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


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U.S. v. Ambriz-Ambriz, No. 08-30431 (11-10-09). Defendant tried to go to Canada for a medical procedure. Unfortunately for him, he was not allowed in, and when he tried to return to the United States, he was discovered to have been a previously-removed alien. He was charged under 1326. At trial, he argued that he should get an instruction for "official restraint" because he was always under surveillance. The district court denied the request, reasoning that the defendant had never left the country. On appeal, the 9th agreed. The panel (Callahan joined by Rawlison and Cudahy) discusses the "official restraint" doctrine, which applied to those individuals who fly into the United States, land, and precede to customs; and, more frequently, those aliens who seek to re-enter but are under constant observation by the government. The doctrine is inapplicable here, even if the defendant had been in Canada for a short time, because travel started in the United States, and the defendant was not legally in Canada and was not trying to re-enter here from there. The emphasis is on his legal status as well as his physical status. The 9th also affirmed the denial of an instruction defining "found in."

U.S. v. Ruckes, No. 08- 30088 (11-9-09). This is a Fourth Amendment "fall out" from Gant, and the new test for searches of cars. Police stopped defendant here for driving 15 miles over the speed limit. A records check indicated that he was also driving on a suspended license. As a result, the police arrested the defendant and placed him in the police car. The police then asked him if anyone could take possession of the car and drive it away. If not, the car could be impounded under state law. The defendant said he could turn the car over to his mother, but she was unavailable at this time and could not drive it away from the scene. The police then searched the vehicle as a search incident to arrest and as an inventory search. They found crack and a pistol. The 9th (Tallman joined by M. Smith and Reavley) found that Gant prohibited the search. The arrest was for a suspended license, and the defendant, at the time of the search, was locked away in the back of a police car. However, under the doctrine of inevitable discovery, the 9th held that an inventory search would have revealed the weapon and drugs. The 9th does strongly caution that the inventory/inevitable discover approach is not an exception that swallows the Gant rule. Rather, the police must be careful to satisfy the requirements of an inventory search -- that is, the car in fact would have been impounded -- and that there is legal justification, and that an inventory search would have taken place. This is a case by case, car by car, approach.

Case o' The Week: Ninth Adopts New Abuse of Discretion Standard, Hinkson

One reporter described the Ninth Circuit's recent en banc decision in Hinkson thus: "Conservatives on the 9th U.S. Circuit Court of Appeals rode to the rescue of one of their own on Thursday, finding that Judge Richard Tallman didn't botch a bizarre murder-for-hire case in Idaho." Dan Levine, The Recorder, Law.com, article available here.

We will, however, refrain from speculating about any political overtones in the case, and will instead focus on the content of the new en banc decision that (unexpectedly and dramatically) changes a well-established standard of review in the Ninth Circuit. United States v. Hinkson, __ F.3d __, No. 05-30303, 2009 WL 3654003 (9th Cir. Nov. 5, 2009) (decision available here).

Players: Judge Tallman, sitting as a district court judge.

En banc decision affirming Judge Tallman by Judge Bea, joined by Chief Judge Kozinski, and Judges O’Scannlain, Kleinfeld, Callahan, Ikuta, and N. Smith.

Dissent by Judge W. Fletcher, joined by Judges Pregerson (who has a real Purple Heart), Paez, and Wardlaw.

Facts: Hinkson, a mentally-unstable Idaho businessman charged with tax evasion, spoke to several people about hiring them to kill federal agents, prosecutors, a judge, and their families. Id. at *1. He was charged with eleven counts of soliciting murder; Ninth Circuit Judge Richard Tallman sat as the district court judge at trial. Id. at *3. Hinkson beat or hung most counts, but was convicted of trying to hire “Swisher” – his former employee, now government witness – to murder. Id. at *6.

At trial Swisher testified he had served in the Marine Corps in Korea, had killed “too many” men, and had received a Purple Heart (he even wore a Purple Heart “medal” while testifying). Id. at *4. These were all lies – indeed, Swisher was (later) federally convicted for these lies. Id. at *7 n. 16. These lies were not clearly known to the defense during the trial, though documents arose that suggested Swisher was perjuring himself. Id. at *7. Judge Tallman prohibited the use of these documents to cross Swisher during the trial. Despite definitive proof that was finally delivered soon after the trial that Swisher had repeatedly lied, Judge Tallman denied the motion for new trial. Id. at *6.

Hinkson was sentenced to thirty-three years for these counts.

On appeal, a three-judge panel lead by Judge W. Fletcher reversed Judge Tallman’s denial of the Rule 33 motion in a lengthy decision. The case went en banc.

Issue(s): “[W]e consider the familiar ‘abuse of discretion’ standard and how it limits our power as an appellate court to substitute our view of the facts, and the application of those facts to law, for that of the district court.” Id. at *1.

Held: “[W]e hold that when we review for abuse of discretion a district court’s denial of a motion for a new trial, we first look to whether the trial court identified and applied the correct legal rule to the relief requested. Second, we look to whether the trial court’s resolution of the motion resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record. In other words, our abuse of discretion test means that we do not automatically affirm a district court’s factual finding if we decide it is ‘permissible,’ and we do not automatically reverse a district court’s factual finding if we decide a ‘mistake has been committed.’ Rather, in either case, we will affirm a district court’s factual finding unless that finding is illogical, implausible, or without support in inferences that may be drawn from the record.” Id. at *12. “Applying this test to the case at bar, we conclude the district court did not abuse its discretion in denying Hinkson’s motion for a new trial based on “newly discovered” evidence . . . .” Id.

Of Note: Judge Fletcher’s 37-page dissent reveals the palpable injustice of this case. He persuasively explains how the government had in its possession documents that undermined the credibility of the central government witness, how the government didn’t fully investigate or timely disclose these documents to the defense, how the government’s key witness affirmatively lied about his military service and honors, and exactly why the revelation of these lies would have resulted in an acquittal in a new trial.

This is, to put it charitably, a disappointing en banc decision.

How to Use: The Ninth now stands alone in manufacturing a definition for “abuse of discretion” – arguably, in the face of conflicting Supreme Court precedent. And this new rule will make reversing a district court exceedingly difficult under “abuse of discretion” review. Anticipate district courts feeling their oats on evidentiary rulings, decisions on experts, and new trial motions – Hinkson just wrote them a blank check.

For Further Reading: Ironically, (conservative) Judge Tallman owes his Clinton appointment to Judge W. Fletcher: part of a deal brokered for the confirmation of the latter. See article here.


Image of the Hon. W. Fletcher from http://www.virginialawreview.org/inbrief/2007/03/22/media/fletcher.jpg . Image of the Hon. Richard Tallman from http://www.uscourts.gov/ttb/2007-09/images/newLeadership/Tallman.jpg . Image of the (real) Purple Heart from http://www.lib.unc.edu/mss/exhibits/patriotism/Images/PurpleHeart.jpg

U.S. v. Hinkson, No. 065-30303 (11-5-09) (en banc). The 9th, sitting en banc, recasts its "abuse of discretion" standard of review. The test for "abuse of discretion" is now as follows:

Our newly stated "abuse of discretion" test requires us first to consider whether the district court identified the correct legal standard for decision of the issue before it. Second, the test then requires us to determine whether the district court's findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record.

Pg. 14957.

The case arose from a prosecution to kill a federal prosecutor, agent, and judge. The key prosecution witness testified while wearing a Purple Heart medal. He lied about it. The government shrugged and said that the focus was on the fact that the defendant had believed that the witness was a Korean War vet (he was not). During trial, defense counsel moved to introduce the military records of the witness. It was unclear, at least to the court (Tallman, sitting as district judge) what the military records actually revealed. He kept out the records, and had instructed the jury to disregard the testimony about veteran status. After conviction, the defendant moved for a new trial, with new evidence that the witness had forged documents. The court denied the new trial motion, stating that the defense could have acted quicker, and that it was collateral anyway. Eventually this went en banc.

Bea, writing for the majority, delves at length into the need to clarify the "abuse of discretion" standard because there was a tension between an appellate court reversing when it formed a "definite and firm conviction that a mistake had been committed" and being denied the power to reverse if the district court's finding was "permissible." The 9th traces the definitions from Supreme Court cases, and compares the various standards for a "clearly erroneous" standard of review. The 9th upholds the preclusion of evidence and denial of new trial.

Dissenting, W. Fletcher (joined by Pregerson, Wardlaw, and Paez) argued that the trial court had abused its discretion, and that the barring of the evidence, and denial of new trial, met the new standard. The analysis is very factual, but the points made were that the witness who lied was the key prosecution witness, that he had a motive given his animosity toward the defendant, and the defense lawyer was not dilatory in his actions. The dissent used the Harrington test for the new trial analysis.

Turning back to the new test for "abuse of discretion," there is concern that this will effectively bar any review. It is true that the court has to use the correct legal standard, but the trilogy of "illogical, implausible, or without support in inferences" does seem daunting.

U.S. v. Garcia-Villalba, No. 05-30506 (11-2-09). The 9th affirms the denial of suppression of evidence gathered by a wiretap. The DEA undertook an investigation of a drug conspiracy operation in Washington state. A wiretap was sought when, according to the affidavit, other means of investigation, such as surveillence, trash, and undercover operatives, hit a dead end. Lengthy affidavits were provided. The magistrate approved the affidavit for a fourth cellphone that hit the jackpot of evidence. That is being challenged here. The district court had found no probable cause, but held that there was a good faith reliance on the warrant. The panel (O'Scannlain joined by Kleinfeld and Berzon) determined there was sufficient probable cause in the details of the investigation, the particular locations, and the house. The 9th also determined that a wiretap was necessary, and that there was not a "cascading effect" by reliance on previous wiretaps applications for the one in question.

U.S. v. Liera, No. 07-50546 (11-4-09). In an appeal from alien smuggling, the 9th (Pregerson joined by Nelson and Thompson) hold that defendant's statements should be suppressed because of the delay in getting him before a magistrate. The 9th also holds a statement made by the mother of one of the smugglees as to the cost of smuggling was not a co-conspirator statement and should be precluded. The errors were not harmless. The defendant was stopped at the Calexico point of entry at 4:15 A.M. Two aliens were found in his truck, under the hood, in hidden compartments. The defendant, in his first interview, five hours after the arrest, said that he did not know of the aliens because he had borrowed the truck because his truck had flat tires. The recording devices for the interview, and for the interviews of the material witnesses, failed to work. Ten hours after the arrest, a go-ahead was given for a second interview. During the second interview, the defendant made statements about his cellphone's numbers. One entry was for "pollos" which he acknowledged was slang for "smuggled aliens." He said though that this refered to a neighbor of his who sold chickens. This second interview happened close to 3:00 P.M., the same time that the magistrate's court in El Centro, 15 miles away, was beginning. As a result, the defendant was not arraigned until 30 hours later. The 9th found the delay was a violation of McNabb-Mallory and 3501(c). This statute provides a 6-hour safe harbor for appearances, and allows for later appearances if the delay is reasonable. The Supremes reaffirmed the reasonableness test recently in Corley v. U.S., 129 S.Ct at 1563. The delay here was unreasonable because it was not a result of a shortage of personnel, or other exigency, but a result of a conscious decision to continue an interrogation. This was not harmless given the focus of the government on these second statements and the fact that the other evidence was not overwhelming. The 9th also held that the statement by a material witness about what his mother said was the rate for being smuggled was hearsay because the mother was not a co-conspirator.

Congratulations to Steve Hubacheck of the Federal Defenders of San Diego.