Ford v. Pliler, No. 06-56092 (12-30-09). The Supreme Court in Pliler v. Ford, 542 U.S. 225 (2004) held that a court's failure to make clear the repercussion of dismissing a pro se's federal petition to return to state court for exhaustion purposes did not result in equitable tolling of the statute of limitations. In the remand, the petitioner argues that he was affirmatively misled by the court's discussion of the two options he could take. The district court agreed. On appeal, the 9th (Clifton joined by Hawkins) reverses and holds that the petitioner was not misled, and that the decision of the Supreme Court controls under the very facts presented. The panel also holds that in Brambles, 412 F.3d 1066 (9th Cir. 2005), the language of "dismiss without prejudice" was taken as accurate and not misleading even though the option was given after the AEDPA's statute had run. Dissenting, Berzon distinguishes the Supreme Court's decision. Berzon reads the Supreme Court decision as remanding to determine if the petitioner was affirmatively misled, and she would so hold. Berzon also believes that the panel in Brambles did not establish such a bright line per se rule as to the language and accuracy, and if it did, then en banc review is called for.

U.S. v. Anchrum, No. 09-30013 (12-30-09). The defendant here was convicted of trying to run down a DEA agent with his car. The jury instruction for assault on a federal officer stated that "the defendant used a motor vehicle." This was error, because it relieved the government of its burden to prove beyond a reasonable doubt that the defendant used a dangerous weapon. The 9th, however, finds that the error was harmless. The 9th (Tallman joined by Beezer and Gould) looked at the evidence, and previous 9th decisions where a vehicle was held to be a dangerous weapon.

U.S. v. No Runner, No. 08-30449 (12-30-09). The 9th (Fisher joined by Kozinski and Paez) hold that a pretrial competency determination is a non-final order and that the collateral order doctrine does not apply. There is no jurisdiction. The pretrial order regarding competency does not completely resolve the issue, as facts may come up at trial that causes a reconsideration, and the issue can be reviewed after trial.

Case o' The Week: A Loss Cause, Berger and the Dura Pharmaceuticals Principle

The slow Christmas week lets us stretch back a bit to catch an important recent case on sentencing loss calculation: United States v. Berger, 587 F.3d 1038 (9th Cir. 2009), decision available here.

Players: Decision by Judge M. Smith.

Facts: Berger was the President, CEO, and Chairman of the Board of Craig Consumer Electronics, Inc. Id. at 1040. With his cohorts he cooked the books and deceived banks that had loaned millions; he also misrepresented the company’s financial viability when it went public.

Berger was convicted of bank and securities fraud, sentenced to six months during the Blakely interregnum, saw his sentence reversed in the Ninth, and was sentenced to 97 months after a Booker remand. Id. at 1042.

He appealed.

Issue(s): “Berger argues that, in sentencing him on remand, the district court erred by: (1) not adhering to the civil loss causation principle in finding shareholder loss, as described by the Supreme Court in Dura Pharmaceuticals, Inc. v. Brouda, 544 U.S. 336 (2005), and (2) applying an erroneous standard of proof in determining total loss for sentencing enhancement purposes.” Id. at 1039-40.

Held: “While we decline to extend the Dura Pharmaceuticals principle to criminal securities fraud, we conclude that the district court’s loss calculation approach was nevertheless flawed. Thus, although we conclude that the district court used the correct standard of proof in determining the total loss, we vacate Berger’s sentence and remand to the district court for resentencing.” Id. at 1040.

Of Note: Berger is an important case because it may mark the beginning of a circuit split, as the Ninth rejects the Dura Pharmaceuticals principle in the context of securities fraud sentencing. Dura Pharmaceutical is a recent Supreme Court case that limited federal civil causes of action for securities fraud. Id. at 1042. In a nutshell, the Dura rule is that i) a fraud must be revealed publicly, and ii) that disclosure must have caused loss to shareholders, before a private cause of action for securities fraud lies. Id.

Although both the Second and Fifth Circuits have strongly suggested that this principle should control in loss calculation for criminal securities fraud (a good thing for the defense), Judge Milan Smith here rejects the rule for the Ninth. Id. at 1033. Judge Smith also rejects the loss calculation method actually used by the district court, which looks to the loss suffered by other companies’ stock when fraud is disclosed. Id. at 1045. What the panel rather conspicuously does not do, however, is explain exactly how loss is to be calculated when “secret” fraud has had no actual impact on stock price. Id. at 1046.

In a world of continued market volatility (and increased securities fraud criminal prosecutions) that unanswered question will be increasingly common.

How to Use: Ironically, in Dura Pharmaceuticals the Supreme Court rejected the Ninth Circuit’s rule of civil liability – and now the Ninth rejects the Supreme Court’s decision in Dura as a rule of criminal liability. The Dura principle may still have some legs, though. First, Judge Smith concedes that this rule regarding loss may make sense in the context of restitution. Id. at 1044 & n.7. Moreover, while the Second and Fifth Circuits haven’t exactly held that Dura Pharmaceuticals applies in the criminal context, they’ve sure suggested as much. A circuit split – and ultimate Supreme Court review – is likely enough that it is worth preserving the objection.

(Aside: does the broad economic principle underlying Dura Pharmaceutical make sense in the mortgage fraud context, where rising property values may have washed out any loss from the underlying fraud?)

For Further Reading: For an interesting perspective on Dura from the losing side of the case, see, What’s Brewing in Dura v. Brouda, available here.


"Stock Market. The Ride" cartoon from http://shop.neatorama.com/product-info.php?stock-market-the-ride-pid106.html

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

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Case o' The Week: "Super" En Banc Petition (or More Accurately, a Petition for Super En Banc)

The gaul of the Ninth Circuit: giving us the first appellate decision to deal with the realities of the Information Age, without first obtaining DOJ approval. United States v. Comprehensive Drug Testing, __ F.3d __, 2009 WL 2605378 (9th Cir. Aug. 31 2009) (en banc), decision available here.

Players: Solicitor General Elena Kagan, on behalf of Rome - er, the Department of Justice - seeking super rehearing en banc in the Ninth Circuit (rehearing by the entire Ninth Circuit Court of Appeals).

Facts: You’ll recall this fall we trumpeted the most technologically-savvy opinion on computer searches ever written: Chief Judge Kozinski’s en banc decision in Comprehensive Drug Testing (“CDT”). See blog here.

To recap, in CDT the ND Cal USAO had snagged a vast amount of private information from third parties, gleaned from computer searches that roamed far beyond the data originally sought.

Three district judges quashed later subpoenas based on this computer data, and peppered their quashals with allegations of government manipulation and misrepresentations. The original three-judge Ninth panel reversed the quashals, but the en banc reversed the panel and sustained the district courts. C.J. Kozinski ended the en banc CDT opinion by setting forth procedures with which the government should (must?) comply for future computer searches.

The government – and specifically, S.G. Kagan – has now sought, for the first time in history, a full rehearing en banc by the entire court of the Ninth Circuit.

Issue(s): Did the en banc panel “step[ ] outside of the proper role of an Article III court when it set forth detailed protocols that purport to bind, and that are being understood as binding, magistrate and district judges in future cases[?]” Brief for the United States in Support of Rehearing En Banc by the Full Court, at 2.

Held: “The court is considering whether it should grant panel or full-court rehearing in this matter and will issue an order granting or denying rehearing in due course.” Ord., Chief Judge Kozinski, Dec. 18, 2009.

Of Note: When Blakely was decided, DOJ cried the sky was falling and warned that sentencing would grind to a halt. Defendants, however, continued to be incarcerated with grim efficiency.

When Booker was decided, DOJ cried the sky was falling and concocted emergency measures to “save” the guidelines. Defendants, however, continued to be shuffled away to serve depressingly long terms, with barely a blip on the sentencing stats.

Given its track record with Blakely and Booker, Justice’s latest cry that the sky is falling after CDT merits a healthy skepticism.

The government’s super en banc petition frets that its investigations are off-track because of the CDT procedures. It does not reveal, however, that filter-teams have long been routinely used in white collar cases with little impact on conviction rates. DOJ neglects to disclose how many computer investigations have in fact gone forward using CDT procedures. The brief omits the CDT-like protocol that enlightened ND Cal magistrates have had in place since 2000, with no negative impact on computer searches or prosecutions. Finally, DOJ ignores new technology which can filter and focus computer searches in ways that were impossible even a decade ago, making the CDT procedures both realistic and workable. Let’s hope the Ninth recognizes that CDT is the wrong case for the very first super en banc.

How to Use: How to best use CDT has been the subject of much discussion in the ND Cal FPD and among the Northern District panel. Given the current procedural posture of the case, best to e-mail or call to discuss CDT issues.

For Further Reading: “The government has moved to further stay the mandate ‘through the disposition of [this court’s] consideration whether to grant en banc review and its en banc consideration of the case or, if [this court] denies en banc review, through the expiration of the time for filing a petition for a writ of certiorari, or, if a petition is filed, the disposition of such a petition for a writ of certiorari.’ Quite a mouthful, and wholly unnecessary. I have already stayed the mandate through the time for filing a timely petition for certiorari. What qualifies as timely is between the government and a higher authority.” Ord., Chief Judge Kozinski, Nov. 12, 2009.

Image of Asterix from http://www.coloriage.tv/dessincolo/Asterix.png

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

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U.S. v. Bays, Jr., 09-30124 (12-17-09). "Pardon me," asked the defendant on appeal from a drug and gun sentence, "but shouldn't a pardon of a state conviction not count for criminal history?" A pardon, answers the 9th, only does not count if it removes the conviction completely and treats it like it never occurred. That did not happen here. The 9th (Tallman joined by Gould and Benitez) start with U.S.S.G. 4A1.2 and application note 10, which concerns the counting of criminal convictions and pardons and expungements. The Guidelines draw a distinction between expungements and pardons, and note 10 states that convictions which are pardoned or set aside for reasons "unrelated to innocence or errors of law" are to be counted. Pardons, for example, to restore civil rights fall into this category. The Idaho Commission of Pardons and Parole had pardoned defendant for his state conviction. There are no state cases to explain the scope of the pardon. The 9th, though, believes that the power only removes the stigma and effect, but does not erase or expunge the conviction. The 9th also looks at other Idaho statutes that give state courts power to expunge convictions. Lastly, the Idaho Commission can also arguably revoke relief and this weighs against the conviction being a "nullity." Thus, bottom line, the Idaho Commission's pardon is not an expungement, and does not effect the innocence or the fact that a conviction took place, and so should be counted.

Case o' The Week: Stop Invasive Herring -- Amended Monghur Decision and Fourth Amendment Exclusionary Rule

Nothing is worse than Herring gone bad. Happily, this week the Ninth takes out some bad Herring bits from an otherwise admirable opinion. United States v. Monghur, __ F.3d __, 2009 WL 4432567 (9th Cir. Dec. 4, 2009) (Ord. & Amend. Op.), decision available here.

Players: Important win by AFPD Jason Carr and D. Nev. Defender Franny Forsman, who doggedly pushed on the Herring issue.

Facts: In August of this year we touted the defense victory in the first Monghur opinion. See blog here. Monghur was in custody, facing attempted murder and battery charges. Id. at *1. He made jail calls to a buddy, instructing his pal to pick up a key to his apartment and to “get the thing” “in the green” in his closet. Id. Agents listened to the taped calls and convinced Monghur’s mom to consent to a warrantless search. Id. Agents found a .38 in a green opaque container in Monghur’s closet; he was charged with § 922(g)(1). Id.

During the suppression hearing, the magistrate rejected mom’s authority to authorize the search of the green box, and rejected exigency (the government’ didn’t appeal those theories). Id. at *2.

In the first Ninth Circuit opinion, Judge Tallman rejected the government’s theory that Moghur’s veiled discussions on a (knowingly-taped) jail phone line somehow waived his privacy interest in the green box. Id. at *4. To our chagrin, however, after finding the warrantless search unlawful Judge Tallman mused upon Chief Justice Robert’s new Herring rule and instructed the district court to analyze the case under Herring in the first instance on remand. Monghur, 576 F.3d 1009, 1013-14 (9th Cir. 2009) (amend. on petit. rehearing en banc).

Issue(s): The Supreme Court’s Herring decision held that the exclusion of evidence for a Fourth Amendment violation was only appropriate if the unlawful search involved “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” 129 S. Ct. 695, 702 (2009) (decision available here). Grossly oversimplified, Herring held that exclusion isn’t appropriate for individual-event, merely negligent errors in a warrantless search. The Nevada FPD petitioned for rehearing en banc, arguing that the Herring bits in Monghur should be taken out.

Held: The chunk of Herring was removed, an amended opinion issued, and the PFR denied.

Of Note: The amended Monghur decision is a good sign that the Ninth won’t allow Herring to expand beyond the proper limits of the new rule. That’s particularly good news for United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009) (decision available here). You’ll recall that in Gonzalez AFPD Rebecca Pennell convinced Judge B. Fletcher to put the brakes on Herring in a Gant car stop case. The government has petitioned for rehearing of Gonzalez: let's hope the amended Monghur decision bodes ill for the government’s efforts.

How to Use: Herring is dangerous because the government (incorrectly) argues that the opinion extends the Leon “good faith” loophole for exclusion for searches with warrants, to apply in all warrantless searches. That it did not do.

At best (or worst), Herring applied the Leon rationale for exclusion of evidence to a narrow category of warrantless searches, involving one-off, mere negligence by the cops. Herring requires our vigilance to avoid “rule creep:” it should be the very rare warrantless search in which Herring becomes an issue at all.

For Further Reading: For a compelling argument on how Herring hamstringed the most effective restraint on the government’s careless use of records technology, see Professor George M. Dery, Good Enough For Government Work: The Court’s Dangerous Decision, in Herring v. United States, to Limit the Exclusionary Rule to Only the Most Culpable Police Behavior, 20 George Mason Univ. Civil Rights Law Journal, 1 (2009).


Image of herring from http://www.thedailygreen.com/cm/thedailygreen/images/0z/herring-lg.jpg


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

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Cox v. Ayers, No. 07-99010 (12-10-09). Recently, in Pinholster v. Ayers, No. 03-99003, an en banc 9th granted habeas relief due to IAC for failure to develop evidence of excruciating childhood abuse. Now, in this case, the 9th (Graber joined by Wardlaw with a dissent by Pregerson) affirm the denial of habeas relief on IAC during sentencing. The panel reasons that counsel made an investigation, mounted some evidence of childhood misery, but chose instead to concentrate on the strategy that the petitioner was not the shooter in four victim homicides. Pregerson, dissenting, argues that counsel had failed to fully investigate the childhood abuse, including reviewing vital records or conducting key interviews. A decision made on incomplete information can still be faulty.

Pinholster v. Ayers, No. 03-99003 (12-9-09) (en banc). Sitting en banc, the 9th affirms the district court’s granting of habeas relief because of IAC in the sentencing phase of this capital case. The 9th majority opinion was written by M. Smith (joined by Pregerson, Reinhardt, Wardlaw, Paez, Berzon and Bybee). The dissent was by Kozinski (joined b y Rymer and Kleinfeld). The 9th held that:

Accordingly, we hold that the California Supreme Court’s "postcard" denial of Pinholster’s penalty phase ineffective assistance calim constituted an objectively unreasonable application of the clearly established federal law in Strickland. Pinholster’s attorneys performed even more deficiently than the lawyers in Terry Williams, Wiggins, and Rompilla; and the balance between the available mitigating evidence and the aggravating evidence, for purposes of showing prejudice, is materially indistinguishable from that in Terry Williams and Rompilla. We therefore affirm the district court’s grant of habeas relief on Pinholster’s penalty phase ineffective assistance claim, finding such relief warranted when properly considered under AEDPA’s deferential standards. Given the law and the facts discussed above, we are fully persuaded that it was objectively unreasonable for the California Supreme Court to determine summarily that not one of the twelve jurors would have voted against a death sentence, especially in light of the fact that the jury deliberated for almost two and a half days before finally returning a verdict of death.

In doing so, we in no way minimize the brutal nature of Pinholster’s underlying crimes of conviction. As the district court acknowledged, the murders were "heinous." Nevertheless, Terry Williams, Wiggins, and Rompilla establish that a habeas petitioner’s "excrutiating life history," Wiggins, 539 U.S. at 537, or "nightmarish childhood," Terry Williams, 529 U.S. at 395, can provide mitigating evidence powerful enough to outweigh the imposition of the death penalty for even the most horrendous of crimes, and that we cannot lightly disregard a capital lawyer’s inexcusable failure to find and introduce such evidence.

Our paramount concern is not whether "few death sentences are safe from federal
judges," diss. at 16103, but rather that federal judges "acknowledge [ ] the uniqueness of the punishment of death [and] ‘the corresponding . . . need for reliability in the determination that death is the appropriate punishment.’ " McCleskey v. Kemp, 481 U.S. 279, 340 (1987) (Brennan, J., dissenting) (quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1976)). The guarantees of the United States Constitution, as interpreted by the Supreme Court, apply to our most troubled and our most upstanding citizens alike, and our duty as Article III judges to fairly and impartially apply those guarantees to all citizens compels us to rule as we do today.

The dissent argues that the California Supreme Court has considered the IAC claim, and its denial was not unreasonable.

Congratulations to FPD Sean Kennedy of C.D. Ca. (Los Angeles).

Robinson v. Kramer, No. 07-55611(12-9-09). At his state trial, Petitioner made a request through counsel to represent himself. The trial court denied. The petitioner was convicted and got a third-strike life sentence. He first raised the Faretta claim in his federal appeal on his federal post-conviction denial. The 9th denies (Bea joined by Gould and Molloy). The 9th finds that his state claim was for substitution of counsel, which is a different standard, that he failed to raise it before the district court, and that it does not present a pure question of law.

Case o' The Week: Eleven is Better, Macinas-Flores

Like Nigel Tufnel, the Arizona Federal Public Defender likes Eleven. Rule Eleven of the Federal Rules of Criminal Procedure, to be precise -- the Rule that brought that office two big victories in the Ninth this week. See United States v. Macinas-Flores, 2009 WL 4282018 (9th Cir. Dec. 2, 2009), decision available here; see also United States v. Roblero-Solis, 2009 WL 4282022 (9th Cir. Dec. 2, 2009), decision available here.

(Ed Note - this memorandum discusses Macnas-Flores, and salutes the Roblero-Solis opinion in the "for further reading" section).

Players: Big win for D. Az. AFPD Dan Kaplan.

Facts: Folks in the US tipped-off ICE that their undocumented-alien relatives were being held hostage in a Phoenix stash house by alien smugglers. Id. at *1. The relatives were told to pay the smugglers, or the aliens would be beaten and raped. Id. ICE and the Phoenix police searched the stash house and found aliens, Macinas-Flores (and a co-defendant) and a loaded shotgun. Id.

On the eve of trial Macinas-Flores tried to plead to a deal to the gun alone (a § 924(c) charge), with a locked range of 25-45 years. Id. When the district court launched into the plea inquiry, Macinas-Flores answered, “I’m not really guilty.” Id. at *2. The trial judge stopped the plea proceeding, rejected the plea, called in the jury, and – after conviction – sentenced the defendant to life.

Issue(s): “Defendant argues that the district court erred in its handling of his guilty plea. He contends that the plea met all the requirements of Fed. R. Crim. P. 11(b), and that therefore the court had no discretion to reject it . . . . Alternatively, defendant argues that even if the court had discretion to reject his plea, it did not adequately explain its reasons for doing so and thus failed to actually exercise discretion.” Id.

Held: “Because the district court abruptly cut off the plea colloquy, we cannot conclude the plea satisfied all of Rule 11(b)’s requirements. As discussed below, however, we agree with defendant’s alternative argument and therefore the district court’s rejection of defendant’s guilty plea and remand for a new plea hearing.” Id.

Of Note: Macinas-Flores denied guilt, and the district court erred by rejecting the plea? The key to this counter-intuitive holding is Alford or nolo contendere pleas, “a plea of guilty in which a defendant maintains his innocence.” Id. at *3. A district court doesn’t have to accept an Alford plea, but it does have to engage in the Rule 11 inquiry and analysis that permits an appellate court to review the proceeding. That didn’t happen here, which bought the defendant a reversal and a chance to reclaim that fantastic 25-45 year deal

How to Use: Wisconsin District Judge Lynn S. Adelman (right) visits the Ninth and authors this opinion. (Recall his admirable and famous decision in the post-Booker Ranum opinion (blog on Ranum available here)). He's a seasoned and thoughtful jurist and a welcome visitor - hope he returns to the West again soon.

In Macinas-Flores, Judge Adelman brushes back the government’s whine of plain error in an analysis that is worth a close read. Id. at *8. Turns out a defendant does not “object” to a court’s ruling (like refusal to take a plea): instead, the party takes an “exception to the ruling.” Id. at *8. Under Fed. Rule of Criminal P. 51(a), exceptions to rulings of the court are unnecessary. Hence, one needn’t complain about a court’s erroneous ruling to avoid plain error review. Id. This is an adoption of a Seventh Circuit rule and is new to the Ninth – worth exploring the outer parameters of this distinction if you’re trying to dodge plain error review.

For Further Reading: One victory was not enough for Arizona last week – “the intrepid federal public defender” in Tuscon (a direct quote) chalked up another Rule 11 win as well. United States v. Roblero-Solis, et al., 2009 WL 4282022 (9th Cir. Dec. 2, 2009). Hard to imagine, but in enlightened Tuscon federal magistrates conducted the Rule 11 colloquy with fifty to a hundred defendants at a time. Id. at *2-*3. The government’s “Operation Streamline” churned undocumented aliens through the court en masse and cranked out dozens of simultaneous misdemeanor § 1325 convictions. Id. at *2.

Judge Noonan is thankfully unpersuaded by the remarkable efficiency of this judicial cattle call – he writes that the procedure violates Rule 11's demand that defendants be addressed “personally.” Id. at *8.

And the standard of review for the procedure in this case? Plain error! A bit of a head-scratcher, considering the Macinas-Flores rejection of Rule 11 plain error was delivered the same day . . . .


Image of Spinal Tap's Amps from http://citifield.files.wordpress.com/2009/07/spinaltap-11.jpg . Image of the Honorable Lynn Adelman from http://www.legis.wi.gov/senate/sen28/news/Photos/2009/images/Inauguration_adelman.jpg

Steven G. Kalar, Senior Litigator N.D. Cal. FPD.

U.S. v. Curtin, No. 08-10394 (12-4-09). On a retrial, the 9th brings the curtain down on defendant's conviction of travel to engage in a sexual act and coercion. In an en banc decision, the 9th kept out salacious stories of adult sexual misbehavior with juveniles found on the defendant's PDA. At the retrial, the defense was that he was play-acting, and thought he was meeting an adult who was pretending to be a child. In its case, the government moved in one redacted story from the seized PDA. The cross examination elicited testimony from the FBI agent that there were other non-sexual stories on the PDA. On redirect, the court allowed the agent to testify that there was in excess 140 child/sexual stories. The defendant argued on appeal that this was unduly prejudicial under FRE 403. No it was not, said the 9th (Trott joined by Wallace and Rymer), and the court acted within its discretion. The evidence was more probative than prejudicial. The imposition of lifetime supervision in the retrial as opposed to the 5 year term imposed after the first trial was not vindictive. Additional evidence was presented that supported it.

U.S. v. Thompson, No. 07-50351 (12-3-09). The defendant, charged with drug crimes and being a prohibited possessor of a firearm, wanted counsel, did not want counsel, wanted stand-by counsel, and then wanted to represent himself. There were trips to the psychiatric wards for delusions, the MCC for competency, and a report about malingering. The defendant always seemed to have a psychiatric break on the day of trial. The court had continued the trial many times, given and relieved counsel, and finally refused to appoint counsel. The 9th affirmed the court's decision, holding that under Faretta, the defendant could represent himself, and seemed competent to do so, and under the new standard of Indiana v. Edwards, 128 S. Ct. 2379 (2008), articulated after this trial, the court had determined that the defendant had the mental capacity to represent himself. The court also did not err in refusing a continuance.

Bradway v. Cate, No. 08-55296 (12-3-09). In this habeas case, the 9th (Canby joined Rawlison and N. Smith) held that the California special circumstance statute that triggered a LWOP sentence was not unconstitutionally vague. Cal. Penal Code 189, 190.2(a)(15). The issue was whether the special circumstance of "lying in wait" for first-degree murder was the same as the special circumstance, thereby interjecting vagueness as to the distinction. The 9th held that the state court's interpretation that the two phrases were distinguished by the latter being "specific intent" could not be found under AEDPA to be an unreasonable application of federal law.

U.S. v. Kuo, No. 08-10314 (12-3-09). This was a prosecution for violation of civil rights arising from a conspiracy to force Chinese women into prostitution under 18 USC 241. The victims were lured to American Samoa, held hostage, and forced to work as sex slaves. The victims escaped, alerted the police, and this prosecution resulted. The defendants pled guilty. In assessing restitution, the court used a calculation that attempted to disgorge the ill-gotten gains from the forced prostitution. The court could only do this under 18 U.S.C. 1593(b)(3), trafficking, which was not charged here.

Congratulations to Peter Wolff, FPD of Hawaii, for the win.

Two decisions concerning Fed. R. Crim. P. 11 (changes of plea) and due process. Both arise from Arizona. The first concerns en masse changes of plea in Operation Streamline and the second the extent of explanation necessary in exercising discretion in rejecting a plea.

U.S. v. Roblero-Solis et al., No. 08-10512 (12-2-09). This is an appeal arising from "Operation Streamline" in Tucson and the en masse taking of pleas to "preserve the rudiments of Fed. R. Crim. P. 11 and the constitution." In one year, 25,000 of these cases are handled. The 9th (Noonan joined by W. Fletcher and Duffy) concluded that:

The problem generated by the massive caseload on the court understandably led the court to adopt a shortcut. Abstractly considered, the shortcut is not only understandable but reasonable. The shortcut, however, does not comply with Rule 11. We cannot permit this rule to be disregarded in the name of efficiency nor be violated because it is too demanding for the district court to observe. We act within a system maintained by the rules of procedure. We cannot dispense with the rules without setting a precedent subversive of the structure. Accordingly, on this challenge by an intrepid federal public defender to the Tucson court's taking of pleas en masse, we hold the procedure to be contrary to Rule 11.

The 9th then goes on to assess the harm to the six defendants, and finds none. The 9th stresses that Rule 11 requires a personal addressing of the defendant. No judge, writes the 9th, could determine whether 50 defendants answer "yes" to questions, or stand mute, or equivocate. A medley of "Si"s do not meet the standards of Rule 11. The 9th distinguishes doing a change of plea with several defendants, where each is addressed individually, from the large number here. The 9th though does not find this to be structural error as defined by Arizona v. Fulminante, 499 US 279 (1991) which undermine the constitution of the trial mechanism. Here, the 9th concludes that the defendants did not show that but for the error, their pleas would not have been entered. This is an instance where the battle may have been lost, but the war won. Ensuring due process will delay the so-called efficiencies of the Operation Streamline process.

Congratulations to AFPDs Jason Hannan ("the intrepid federal public defender") and Brian Rademacher (the intrepid appellate lawyer) in the Arizona FPD office (Tucson) for this win.

U.S. v. Mancinas-Flores, No. 08-10094 (12-2-09). The defendant wanted to plead guilty to alien smuggling (40 year sentence....hostage taking and guns involved), had a deal, but the court cut him off when he tried to explain at the plea colloquy under Rule 11 that while he was pleading, he really was not guilty of the firearm charge. Without further explanation, the court ordered the trial to commence. The defendant received a life sentence after trial. The 9th (Adelman (district court judge from the ED Wisc.) joined by Tashima with a dissent by Rymer) remanded for a new plea hearing. The argument was that the court failed to follow Rule 11. The 9th agreed, and criticized the court for failing to disclose reasons why it was rejecting the plea. As such, the court failed to adequately exercise its discretion, and therefore abused it. In dissent, Rymer argues that the defendant tried to get an Alford plea through, and that the court could insist on a "not guilty" without further ado.

Congratulations to Dan Kaplan, AFPD in the Arizona FPD office (Phoenix) for this win.

U.S. v. Truong, No. 08-10446 (12-1-09). Just in time for the holiday gift-giving season, the 9th holds that stolen retail gift cards can be considered an "access device" under 1029(e)(1) because it gives access to an account. The defendant here stole gift cards, duplicated them, and then replaced them back on the store's shelves, but he kept the PINs so that he could subsequently access the accounts when the cards were activated. The 9th (per curiam with B. Fletcher, Canby and Graeber) concluded that it was not necessary for an account to have personal information for it to fall under the access device definition. The sentence of 10 years was also not unreasonable given the defendant's history of fraud involving access devices, the car chase that came close to killing a motorist, and a low "loss calculation" because the probation officer could not locate many of the gift card holders.