Sunday, May 31, 2009

Case o' The Week: Key Date Is "Found In" Plea Agreement, Not in Case Facts -- Lomeli-Mences & Illegal Reentry Sentencing

An undocumented alien is found by ICE agents in August of 2006. They promptly slap an immigration detainer on him. When was the alien "found in" the United States for the illegal reentry prosecution?

April 2007, of course. United States v. Lomeli-Mences,__ F.3d __, No. 07-50452, 2009 WL 1476976 (9th Cir. May 28, 2009), decision available here.

Players: Decision by Judge Graber (right).

Facts: Alien Lomeli-Mences was arrested on a state warrant. The feds promptly found him and slapped an ICE detainer on him in August ‘06. Id. at *1. Over a month later, he was convicted and sentenced on the state charges. Id.

The next year, he was charged by the feds with 8 USC § 1326 – being“found in” the U.S. in April 2007. Id.

Three criminal history points were added during the federal sentencing calculation, because Lomeli-Mences was serving the state sentence when he was “found in” the U.S. in April ‘07 (eleven months after the feds had really first found him, in August ‘06, and hit him with a detainer). Id. at *2.

Issue(s): Lomeli-Mences “argued that the district court incorrectly assessed three criminal history points pursuant to U.S.S.G. § 4A1.1(d) and (e), which allow for additions if the defendant committed the instant offense while under any criminal justice sentence or while imprisoned on such a sentence. Defendant claimed that he committed the instant offense on August 6, 2006, the date on which the immigration authorities lodged the detainer against him. Because he was not sentenced on the false imprisonment and false impersonation charges until September 2006, he argues, he was neither under a criminal justice sentence nor imprisoned for those offenses when he committed the instant offense.” Id. at *2.

Held: “When a defendant admits, in an enforceable plea agreement for a violation of 8 U.S.C. § 1326, to having been found in the United States on a specific date, that admission is binding as to the offense date, and the defendant may not later dispute its validity. In summary, having admitted to the April 23, 2007, date in both his written plea agreement and oral change of plea proceedings, Defendant cannot now argue that he was ‘found in’ the United States on a different date.” Id. at *5.

Of Note: This is a disappointing and troubling decision. First, the government manufactures the “found in” date in the charging document – and here, it is undisputed that ICE actually found Lomeli-Mences eleven months before the “found in” date charged in the Information. Why didn’t the feds just bring the alien over to federal court when they first found him? Because ICE maximizes jail time by waiting for the state sentence to run, thus depriving an alien of the opportunity to get concurrent state and federal time. See United States v. Sanchez-Rodriguez, 161 F.3d 556, 563-64 (9th Cir. 1998) (en banc). Note that N.D. Cal. judges have refused to let the feds have it both ways – delaying the transfer of the alien to federal court, then picking a late artificial “found in” date in the indictment to sweep-in the criminal history points from a state conviction.

Second, this opinion tolerates a flatly-inaccurate fact – the made-up, later, “found in” date – simply because it was thrown in a plea agreement by an AUSA. Query whether the parties could stipulate to a false fact in a plea agreement to reach a lower sentence? That plea agreement would likely get a cooler reception in the Ninth.

How to Use: What’s one to do? Plead open, admit an earlier “found in date” than is alleged in the charging document, and avoid the extra three criminal history points? Or grimace, accept a “fast-track” plea agreement that knocks-off four offense levels, and admit to a false“found in” date made up by the AUSA? Option two will always knock more months off of a sentence.

Nonetheless, this apparently obscure sentencing issue is unfairly adding a lot of jail time for a lot of folks. The bench, the Sentencing Commission, and the much-anticipated crop of new Obama U.S. Attorneys should take another look at this unfair charging practice in Section 1326 cases.

For Further Reading: At recent hearings at Stanford, the U.S. Sentencing Commission explained that for the first time immigration cases are the highest percentage of federal crimes prosecuted. See U.S. Sentencing Commission Preliminary Quarterly Date Report, Figure J, pdf available here.

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


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Friday, May 29, 2009

U.S. v. Medina-Villa, No. 07-50396 (5-28-09). The 9th (Wardlaw joined by Pregerson and Graber) holds that California's penal code section 288(a) -- lewd and lascivious acts on a child under 14 -- is a crime of violence for aggravated felony purposes in 2L1.2.

U.S. v. Lomeli-Mences, No. 07-50452 (5-28-09). The 9th (Graber joined by Pregerson and Wardlaw) affirm the criminal history calculations of a defendant sentenced on two offenses on the same day and same time. The two offenses, however, were unrelated because one was from 2000 (false imprisonment of defendant's ex-girlfriend) and the other from 2006 (false impersonation from a false name). The offenses were not consolidated by order, nor did they arise from a common scheme. This separate counting was not error. The 9th also held that once a defendant admits his illegal presence in a plea agreement and at a plea colloquy, that is the date that is used for conviction and not the date in an indictment.

Thursday, May 28, 2009

U.S. v. Jefferson, No. 08-30067 (5-26-09). The 4th amendment does not protect early delivery of mail. What is meant by that? Well, the defendant was expecting a postal package guaranteed to be delivered by 3:00 on April 7th. The package came in to the post office that morning, and the postal inspector was waiting for it. With a couple of hours left, a dog sniff alerted, a beeper warrant obtained, and the package delivered with minutes to spare. When the beeper beeped, an arrest ensued for possession with intent to distribute meth. The defendant argued that he had an interest in getting the mail as soon as it came in. "No," said the 9th (Beezer joined by Tallman and M. Smith). The interest only comes if the mail was late, past the "agreed upon" contractual time. If that occurred, then the government could not delay the mail, but would need reasonable suspicion. The 9th denied the motion to suppress. I guess while rain, snow, and sleet won't delay the mail, a postal inspector's hunch can, so long as it is before the contracted "next day delivery time." (Ed note: if one asks that the mail be delivered by a certain time or as soon as received, then the expectation might click in). This appeal also came up on a double jeopardy claim (there was a conditional plea). The first trial ended with a hung jury on the possession with intent and a conviction for possession of meth. However, the jury made clear in its verdict form, and in polling, that they did not acquit on the intent charge but could not reach a decision. The defendant also asked that the jury continue deliberations, and they still hung. There was no double jeopardy bar because there was not an implied or clear acquittal or conviction. So, the postman can ring twice.

U.S. v. Juvenile Female, No. 07-50549 (5-27-09). A Border Patrol agent pulled over a car close to the border, suspecting some nefarious drug activity. The driver took off, and and the agent chased. Another Border Patrol went to the car, where a juvenile passanger put up a ruckus, that led to a stabbing with a small knife. The juvenile was charged with juvenile delinquency for assault on a federal officer under 111. The 9th (D. Nelson joined by Pregerson and Thompson) held that assault with a dangerous weapon or resulting in bodily harm was a "crime of violence" for delinquency purposes. The 9th also held that there was jurisidiction because the Border Patrol agent was engaged in official duties; the agent could also be investigating customs offenses that are part of his border investigation / enforcement duties.

U.S. v. Mendoza-Zaragoza, No. 08-30130 (5-27-09). The 9th holds that in 1326 illegal reentry after deportation or removal cases, what is required in the indictment for an enhancement is the date of the removal. There is no requirement under Apprendi for the conviction to be listed or dated. The date of the removal is all that is required. Due process or fairness does not require the conviction. After all, the Rule 11 colloquy as to maximum penalties puts the defendant on notice.

Monday, May 25, 2009

Case o' The Week: The Price is Right --Discovery of Brady Materials in U.S. v. Price

Judge Stephen Reinhardt (right) delivers a remarkable Brady decision in United States v. Price, __ F.3d __, No. 05-30323, 2009 WL 1408117 (9th Cir. May 21, 2009), decision available here.

Players: Decision by Judge Reinhardt, joined by Judges Goodwin and Pregerson.

Facts: Delray Price was arrested in the back seat of a car after a gun was found beneath the driver’s seat. Id. at *1. Little evidence tied this felon to the pistol, save the testimony of a woman who said she saw it in his waistband shortly before the arrest. Id. at *3. He was convicted of a § 922(g) count at trial. Id. at *1. After trial, it was discovered that this female witness had suffered a number of arrests and priors. Id. at *4. At several new-trial hearings the AUSA reversed himself on whether he had in fact disclosed this Brady material to the defense. The district court denied the new-trial motion.

Issue(s): “There are three components of a Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully of inadvertently; and prejudice must have ensued. . . . There is no dispute that the first component of a Brady violation exists in this case: Brady encompasses impeachment evidence, and evidence that would impeach a central prosecution witness is indisputably favorable to the accused . . . . Our decision therefore turns on the two remaining components of the Brady analysis.” Id. at *5 (quotations and citations omitted).

Held: “Because, here, the prosecutor failed to fulfill his duty to learn of and disclose favorable evidence that likely was in the possession of his lead investigating officer, and because the evidence of Phillips’ criminal history is material, we hold that the prosecutor violated Price’s rights under Brady v. Maryland . . . and its progeny.” Id. at *2.

Of Note: Price is a great start for any Brady battle. Judge Reinhardt explains the scope of the rule, identifies unresolved issues on standard of review, id. at *5, and discusses the problem of whether inadmissible evidence falls within the Brady rule. Id. at *9. It is chock-full of bon mots, such as footnote 14, where Judge Reinhardt reminds AUSAs that Brady obligations extend beyond disclosure of convictions – an AUSA must “disclose all information bearing on a government witness’s credibility.” Id. at *9 n.14 (emphasis in original). Footnote 14 favorably quotes Acosta and Sudikoff, two district court decisions that properly explain how Brady material must be identified and disclosed.

Note 14 alone is worth the Price of admission: it should be quoted verbatim in discovery letters.

How to Use: Price is an embarrassment of riches: here’s two jewels. First, Judge Reinhardt cleverly uses very recent, new Ninth evidence rules to find that the impeachment material would have been admissible. Id. at *9 (citing Osazuwa (blogged here). The decision correctly flags the ripple effect of the Ninth’s new holding on FRE 608(b) and impeachment by prior conduct – Osazuwa’s holding broadens an AUSA’s Brady obligations. (Assuming, without conceding, that only admissible evidence falls under Brady).

Second, the opinion again teaches that Brady applies even if the prosecutor did not personally know of the material. Id. at *6. Put bluntly, a federal AUSA is on the hook for Brady information known to state cops. With the widespread federalization of traditional state crimes, this is a lesson too-frequently ignored by AUSAs. Again, Price merits heavy quotation in discovery demands – particularly in federalized state cases.

For Further Reading: The panel describes the AUSA’s performance as “troubling” and warns it may “warrant further inquiry by the district judge” on remand. Id. at *9. Yet the opinion never identifies the trial AUSA by name (a common practice by appellate panels).

It is a fair to ask whether not specifically naming this AUSA dilutes the deterrent impact of the decision. His name, previously listed in this blog entry, has been removed at the request of one of his colleagues in the Portland United States Attorney's Office. This prosecutor's identity is, of course, still a matter of public record and can be found in the Appellant's Brief at 2006 WL 3380702.

Whether or not to name names is a fair question. Comments and debate on whether the Ninth -- or this blog -- should specifically identify prosecutors who, for example, commit Brady violations are welcome.

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


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Thursday, May 21, 2009

U.S. v. Maness, No. 06-30607 (5-19-09). The 9th considers the issue of self representation at re-sentencing. The court should have allowed the defendant to represent himself at the re-sentencing. This was error. However, the 9th distinguishes between a structural error for the right to self-representation at the trial stage and at sentencing. The 9th holds that error in not allowing self representation at sentencing does not infect or call into question the integrity of the process. (Ed note: Really? Isn't sentencing as important and occasionally more important than the guilt phase?). Here, the error was harmless because the defendant did file briefs, and pleadings, and participated.

U.S. v. Heron-Salinas, No. 08-50276 (5-20-09). The 9th, in a per curiam, holds that a conviction for assault with a firearm under Calif. Penal Code 245(a)(2) is a categorical crime of violence and an aggravated felony for immigration purposes. The 9th considers a plain reading of the statute as satisfying the mens rea requirements of 18 U.S.C. 16(a) and (b) because the offense's elements of unlawful attempt, plus a present ability, to commit a violent injury on a person with a firearm, mean that the defendant acts in disregard for the safety of another.

U.S. v. Price, No. 05-30323 (5-21-09). This is a strong opinion on the prosecutor's obligation to disclose Brady material. The defendant was convicted of being a felon in possession when a gun was found under the driver's seat of a car in which he was riding as a passenger in the rear. The key piece of evidence was testimony by a witness that she had seen the defendant with a gun in his waistband 15 minutes prior. This witness, by all accounts, had little regard for truth and honesty. She had a lengthy history of run-ins with the police and convictions -- all of which was NOT disclosed to defense counsel despite a request. The witness was attacked for faulty perception and memory, but the Brady material was not uncovered until after the trial (it was disclosed in defendant's brother's case). The trial court held that the prosecutor may not have had the information, and so he was not responsible, and that it was harmless. The 9th (Reinhardt joined by Goodwin and Pregerson) was aghast. The opinion makes clear that a prosecutor has a responsibility to check with law enforcement for such information. "Under longstanding principles of constitutional due process, information in the possession of the prosecutor and his investigation officers that is helpful to the defendant, including evidence that might tend to impeach a government witness, must be disclosed to the defense prior to trial. It is equally clear that a prosecutor cannot evade this duty simply by becoming ignorant of the fruits of his agents' investigations." The error was prejudicial. The conviction is vacated and the matter remanded for a new trial.

Sunday, May 17, 2009

Case o' The Week: Like Nigel's "Up to 11" -- Alderman and the "Fourth Category" Of Commerce Clause Power

Congress criminalized the possession of body armor by "violent felons." See 18 USC § 931. Within which of Supreme Court's three categories of federal Commerce Clause power does this statute fall?

Trick question -- turns out that the body armor statute is authorized by that that elusive "fourth" category of Commerce Clause power, explains the Ninth in a disappointing decision (sparking a powerful Paez dissent).
United States v. Alderman, __ F.3d __, 2009 WL 1298056 (May 12, 2009), decision available here.

Players: Decision by Judge McKeown, joined by Judge B. Fletcher. Dissent by Judge Paez. Hard-fought case by Seattle AFPDs Brian Tsuchida and Vicki Lai.

Facts: Alderman was charged with being a “violent felon” in possession of body armor, in violation of 18 USC § 931 and 921(a)(35). Id. at *1. In a conditional plea, he admitted the vest had crossed state lines but preserved a challenge to the constitutionality of the statute. Id.

Issue(s): “This case of first impression in the Ninth Circuit requires us to consider whether Congress has the authority under the Commerce Clause of the . . . Constitution . . . to criminalize the possession by a felon of body armor that has been sold or offered for sale in interstate commerce . . . . Put another way, the issue is whether the sale of body armor in interstate commerce creates a sufficient nexus between possession of the body armor and commerce to allow for federal regulation under Congress’s Commerce Clause authority.” Id. (internal quotations and citations omitted).

Held: “We conclude that we are bound by [pre-Lopez trilogy] precedent – absent the Supreme Court or our en banc court telling us otherwise – and that the felon-in-possession of body armor statute passes muster.” Id. at *1.

Of Note: In ‘77, the Supremes upheld the felon-in-possession statute against Commerce Clause attack in Scarborough. Since then, the Supreme Court delivered the Lopez trilogy, three cases that fundamentally re-define the scope of Congressional Commerce clause authority: Lopez (‘95), Morrison (‘00), and Raich (‘05).

Read Judge McKeown’s decision carefully, and it seems to concede that the body armor statute cannot survive after the Lopez trilogy. In reality, it appears that the real issue in this case is that old Agostini conundrum: when can a panel break from precedent when an intervening Supreme Court decision directly controls? See id. at *15 (Paez, J., dissenting).

Judge Paez has the better argument in his well-written dissent. Id. He persuasively questions how this statute can be saved by placing it in the “fourth category” of Commerce Clause power – when the Supremes have only identified three categories. Id. at *15. The true conservatives in the Ninth – those who believe in limited federal government and in “state’s rights” – should be siding with Paez and seeking en banc review of Alderman.

How to Use: As is her custom, Judge McKeown has written a balanced opinion that concedes the weaknesses of her argument and that notes the issue may turn out differently on en banc or Supreme Court review. Preserve the Commerce Clause challenge in body armor cases – the dust hasn’t settled on this issue.

Also, Las Vegas AFPD and appellate guru Jason Carr has flagged footnote three of Alderman, which appears to change the Ninth’s “notice of appeal” procedures. Most folks generally (broadly) refer to the conviction and final written judgment in a notice of appeal. In Alderman, however, Judge McKeown seems to imply that a failure to specify the specific motion or issue on the initial notice of appeal waives it. Id. at *1 n.3. Ninth Circuit Rule of Appellate Procedure 3(c)(1)(B) does state that the notice must “designate the judgment, order, or part thereof being appealed.” See rule here. Alderman may be a reminder to be more specific in initial notices to appeal.

For Further Reading: Justice Souter dissented from Lopez and Morrison. Will his Lefty replacement get fired up over the Commerce Clause?

She will not.

For an interesting article on the historical rise and fall of conservative efforts to limit Congressional power, see A. Christopher Bryant, The Third Death of Federal of Federalism, 17 CNLJLPP 101 (2007), abstract available here.

Body armor image from

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


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Friday, May 15, 2009

U.S. v. Nguyen, No. 07-30197 (5-15-09). Crawford and confrontation are issues in this appeal involving conspiracy to transport stolen property, transportation of the property, and conspiracy for money laundering. The offenses arose from a scheme to misbrand ultrasound probes and to defraud the supplier. The government had a FBI agent testify about statements made by a witness and possible co-conspirator during interrogation. This was a Crawford violation, and was still hearsay even if the statements were elicited by counsel of the co-defendant. The 9th (Gould and Beezer) found this to be prejudicial. The 9th also found error in the conviction for misbranding because the jury instructions lacked the element of materiality. However, the error was harmless. Dissenting, Callahan would find that the confrontation violation was harmless and that the money laundering conviction was not plain error.

U.S. v. Raygosa-Esparza, No. 07-50573 (5-15-09). The defendant was convicted on two counts of smuggling drugs into prison. He got a 210 month sentence, but had it vacated because of an Apprendi error. On resentencing, the court imposed consecutive sentences of 60 months each. The 9th (Thompson joined by Pregerson and Fogel) affirmed because the statute 18 U.S.C. 1791 required the sentences to run consecutively and the sentence was not vindictive. The sentences, moreover, were not unreasonable. The court could consider other drugs smuggled in besides the charged marijuana so long as the statutory maximum was not exceeded.

Tuesday, May 12, 2009

U.S. v. Alderman, No. 07-30186 (5-12-09). The 9th holds that the sale of body armor in interstate commerce creates a sufficient nexus between possessing the body armor and commerce to allow for congressional commerce clause authority. The majority (McKeown joined by B. Fletcher) feel that they have to follow the Supremes precedent in Scarborough v. U.S., 31 US 563 (1977) (firearm that travels interstate provides nexus) and 9th Circuit precedent in U.S. v. Cortes, 299 F.3d 1030 (9th Cir. 2002). The majority acknowledges the tension in the changing commerce clause jurisprudence, citing Morrison and Lopez. However, the statute closely tracks the one in Scarborough, and that the requirement that the body armor is sold or offered for sale in intersate commerce is sufficient. Dissenting, Paez argues that precedent does not control post-Lopez, because the connection to interstate commerce for possession by a felon is too attenuated. Section 931 requires no showing by the government that body armor involved a commercial transaction, substantially affected interstate travel, a crime, or possession of a firearm. There must be some connection, otherwise, as Paez argues here, mere intrastate possession of body armor by a felon not part of a comprehensive regulatory scheme and not connected to crime that affects interstate comerce, provides an insufficient commerce clause basis. The deficiency requires reversal.

Monday, May 11, 2009

Case o' The Week: Shutting the Door on "Opening the Door," Osazuwa and FRE 608 and 609

Judge Graber (left) explains a new Ninth Circuit rule on the use of specific acts of conduct to impeach, in a great case untangling the interplay of Federal Rules of Evidence 608 and 609. United States v. Osazuwa,__ F.3d __, No. 08-50244, 2009 WL 1232107 (9th Cir. May 7, 2009), decision available here.

Decision by Judge Graber, joined by Judges Pregerson and Wardlaw. Admirable win by CD Cal. AFPD Elizabeth Newman.

Facts: Osazuwa was tried on charges of assaulting a prison guard while serving a sentence for failing to pay restitution for bank fraud (his original bank fraud sentence had been one day custody). Id. at *1. Osazuwa’s testimony conflicted with that of the guard at trial. Id. at *1-*2.

Over defense objection the government crossed the defendant on the specific details of the previous bank fraud conviction, seeking concessions of various lies made during that crime. Id. at *2-*3. The district court permitted this cross, holding that Osazuwa had “opened the door” to this inquiry by (truthfully) stating he had served only one day for this bank fraud crime. Id. at *3. Under this “open door” theory, the court held, specific acts of untruthfulness otherwise barred under FRE 609 were admissible. Id.

Moreover, the court also held that the specific acts of untruthfulness were admissible under FRE 608. Id. The court gave a limiting instruction; the line of inquiry was not mentioned in the government’s closing. Id.

Issue(s): 1. FRE 608: “Defendant first argues that the district court erred in holding that the admission of the facts underlying his bank fraud conviction was warranted under Rule 608 . . . The crux of Defendant’s argument is that Rule 608 applies only to specific instances of conduct that were not the basis of a criminal conviction. Evidence relating to a conviction, he argues, his treated solely under Rule 609.” Id. at *4.

2. FRE 609: “The next question is whether the impeachment evidence was properly admitted under Rule 609 . . ." Id. at *6. “The government does not argue in this case that its cross-examination of Defendant stayed within the established bounds of inquiry under Rule 609. It instead asserts that Defendant ‘opened the door’ to questions about his specific dishonest acts because his testimony about serving only one day in prison minimized the seriousness of his bank fraud conviction.” Id. at *6.

Held: 1. FRE 608: “[W]e hold that Rule 608(b) permits impeachment only by specific acts that have not resulted in a criminal conviction. Evidence relating to impeachment by way of criminal conviction is treated exclusively under Rule 609 . . . .Id. at *5.

2. FRE 609: “Defendant did not testify about the underlying facts of, or create a false impression about, his conviction; he truthfully answered the question asked . . . [T]hat answer was insufficient to open the door to questions about the details of the offense.” Id. at *7. “[W]e hold that the district court abused its discretion in admitting evidence of the acts underlying Defendant’s conviction for bank fraud and that the error was not harmless.” Id. at *8.

Of Note: This important evidence case clarifies the use of specific conduct to impeach and the inter-relationships of FRE 608 (limiting impeachment by specific acts) and 609 (impeachment by prior convictions.) Judge Graber’s new rule – consistent with other circuits – is that if a specific act of untruthfulness lead to a conviction, that impeachment falls within FRE 609 (with all of its limitations). The government can’t back-door the use of a specific act otherwise barred by FRE 609, by trying to sneak the impeachment under FRE 608. Good stuff.

How to Use: Osazuwa is a must-read to prep a client who is going to testify, to warn of the dangers of the “open door.” Id. at *6-*7. Judge Graber explains the “open door” theory in detail, and distinguishes between a defendant’s statements to do – and don’t – “open the door” to impeachment by specific acts of untruthful conduct. Id. at *7.

For Further Reading: Quick: which Rule permits admitting otherwise improper evidence after a witness has “opened the door?” This is a trick question – even our Chief Judge is “aware of no authority for admitting inadmissible evidence just because we think turnabout is fair play.” United States v. Wales, 977 F.2d 1323, 1328-29 (9th Cir. 1992) (Kozinski, J., concurring in part.) Wales is Judge Kozinski’s fascinating and compelling attack on the “open the door” theory of evidence. He’s right: it’s a fuzzy theory, not in the rules, that is hard to apply in practice.

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


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Thursday, May 07, 2009

U.S. v. Osazuwa, No. 08-50244 (5-7-09). This is an interesting opinion concerning the interplay between FRE 608 (specific instances of untruthfulness) and FRE 609 (prior convictions). That is, can the facts underlying 609 be used as instances in 608. The 9th (Graber joined by Pregerson and Wardlaw) hold "no." The case involved an inmate, on the cusp of release, supposedly getting into a fight with a guard. The guard said the defendant picked the fight after being ordered to change clothes (from BOP green to transitional khaki (i.e. more like GAP?). The defendant said the guard came in with an attitude and was so angry that he lost his balance, grabbed defendant's shirt, and both men fell. There were no other witnesses. At trial, the prosecutor used the facts underlying the defendant's 2003 bank fraud conviction to impeach him about lying for caused a scuffle. The district court let it in under 608. The 9th weighed the two constructions, and concluded that it would be unfair to restrict cross under 609, only to let it in under 608. The 5th, 8th and 10th Circuits also hold that 608 only applies to specific instances not resulting in a felony conviction. Thus, the 9th holds "that Rule 608(b) permits impeachment only by specific acts that have not resulted in a criminal conviction. Evidence relating to impeachment by way of criminal conviction is treated exclusively under Rule 609...." Under Rule 609, the details should have been precluded, and may not include collateral details of the crime of conviction. A defendant does not "open the door" by providing a truthful answer to a direct question under 609. Given the issues of credibility, the error was prejudicial and not harmless.
Congrats to AFPD Elizabeth Newman, C.D. Ca (Los Angeles).

Wednesday, May 06, 2009

King v. Ryan, No. 06-55858 (5-5-09). In habeas, the 9th deals with stays-and-abeyances of unexhausted claims (the so-called Kelly procedure). The 9th (Berzon joined by Hawkins and Clifton) concludes that Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) survives Rhines v. Weber, 54 US 269 (2005). In Kelly, when a court faces a petition with exhausted and unexhausted claims, the court must notify the petitioner, the petitioner can chose to withdraw unexhausted claims and proceed back to state court, and the federal court stays and holds in abeyance the exhausted claims. Once the claims are exhausted, the petitioner returns to federal court and amends his petition. In Rhines, the Supremes allow a staying of a mixed petition and does not require the unexhausted claims to be dismissed while the petition seeks exhaustion. Rhines does require a showing of good cause for failure to exhaust. The 9th finds that the Kelly test still has applicability. In Kelly, and here, the mixed petition is not kept in federal court, but separated, and the petitioner has his unexhausted claims dismissed. In returning to state court, facing AEDPA's one year limitations bar, the petitioner risks that his now exhausted claims may not be timely. Still, he does not have to show good cause in Kelly as he would have to show in Rhines. Nonetheless, although Kelly should apply in this case, the petitioner still loses because his exhausted claims must now relate back to the pending claims in federal court, and the relate back must be to the those facts and the core of operative facts. That was not the case here.

U.S. v. Iribe, No. 07-50432 (5-6-09). Mexico not only regards the death penalty as not permissable under its constitution, but also life imprisonment. In this case, involving a treaty extradition, the defendant was suspected of kidnapping and killing an American citizen in an extortion plot. He was caught by Mexican authorities and the U.S. sought extradition. The Mexico courts permitted extradition, but not for any offense that had as a penalty life imprisonment. The defendant came here under the charge of conspiracy for maiming a person in a foreign country. Once back, he was charged in a superseding indictment with conspiracy to kidnap and attempted kidnapping. The Mexican government, by diplomatic note, agreed to such a change. The defendant plead mid-trial, and reserved this appeal. The 9th (Graber joined by Pregerson and Wardlaw) upheld the lawfulness of the new charge under the doctrine specialty. The 9th reasoned that conspiracy to kidnap came from the same facts as the conspiracy to maim; the sentence for conspiracy to kidnap was actually less than conspiracy to maim, and most important, the Mexican government did not object. The district court did not err in admitting the diplomatic note in as evidence. Finally, the two charges of conviction, conspiracy to kidnap and attempted kidnapping, were distinct. The 300-month sentence was affirmed.

Monday, May 04, 2009

U.S. v. Godinez-Ortiz, No. 08-50337 (4-29-09). The 9th (Trott, Kleinfeld, Fisher) uphold the court's authority to send a defendant found incompetent, and nonrestorable, back to FCI-Butner for a dangerousness evaluation under 4246. The 9th did grant the interlocutory appeal of the order, finding that it evades review, and the issue presented will be resolved. On relief, though, the 9th focuses on the court's authority for such a dangerousness evaluation, and that the authority permits a custodial evaluation out of district despite the fact that charges will be dismissed.

Sunday, May 03, 2009

Case o' The Week: Jx, but Nixed: Godinez-Ortiz and "Dangerousness" Evaluations under 18 USC Section 4246

Judge Steven Trott (left) has the defense singing the blues in a case delivering the battle to the hard-fighting San Diego Defenders, but ceding the war to the government in a Section 4246 "dangerousness" case. United States v. Godinez-Ortiz,__ F.3d __, No. 08-50337, 2009 WL 1140278 (9th Cir. April 29, 2009), decision available here.

Challenging case fought by veteran San Diego AFPDs Shereen Charlick and Vincent Brunkow.

Facts: Godinez-Ortiz finished an eight-year prison sentence for manslaughter in California, was deported to Mexico, and reentered fifteen days later. Id. at *1. He was charged with illegal reentry, found to be incompetent, and the BOP found he was not restorable to competency and thus could not be involuntarily medicated. Id. at *1.

The government then moved to dismiss the § 1326 charge and to return Godinez-Ortiz to the BOP at F.M.C. Butner, South Carolina, for a reevaluation and to obtain a certificate of “dangerousness” under 18 USC § 4246. Id. The court granted the government’s motions, the defense filed a notice of appeal. Id.

Issue(s): 1. Jurisdiction: “Godinez-Ortiz argues that this Court has jurisdiction to hear his appeal pursuant to the collateral order doctrine.” Id. at *2.

2. Authority to Commit and Institute § 4246 Proceedings: “Godinez-Ortiz asserts that the district court lacked authority to commit him to the custody of the Attorney General [the BOP at Butner] under § 4246 and to commence proceedings under § 4246.” Id. at *5.

Held: 1. Jurisdiction: “Because each requirement of the collateral order doctrine is satisfied, we have jurisdiction over this appeal.” Id. at *5.

2. Authority to Commit and Institute § 4246 Proceedings: “In authorizing the director to file a dangerousness certification, § 4246 necessarily contemplates the temporary commitment of that person so that the director can conduct the evaluation necessary to make the certification decision. Section 4241 and § 4246 do place limits on the district court’s authority to commit a person, but those limits were not exceeded in this case . . . . [W]e conclude the district court acted within its authority in temporarily returning Godinez-Ortiz to FMC-Butner to provide the director with an opportunity to consider whether the issue a dangerousness certificate pursuant to § 4246.” Id. at *8.

Of Note: There are two new Ninth rules in this decision by Judge Trott (joined by Judges Kleinfeld and Fisher). First, much to the government’s chagrin, there is a direct appeal from a district court order referring a client to BOP for a dangerousness evaluation under § 4246. Id. at *4-*5. (This, incidentally, effectively moots jurisdiction arising from a writ of mandamus. See id. at *8-*9). This is an important rule, and gives a “dangerous” defendant a shot at an appeal in the Ninth before being shuffled off to F.M.C. Butner and the warm embrace of the progressive Fourth Circuit.

The second new rule is less welcome: a district court has the authority to order a § 4246 evaluation and refer a defendant to the BOP even when the defendant is not hospitalized in F.C. custody and no certificate of dangerousness has been filed by the F.C. director. Id. at *7. The San Diego crew persuasively argued that the evaluation order in this case did not comply with the requirements of § 4246, but those arguments gained little traction in this opinion. Id. at *7-*8.

How to Use: Wading through the federal competency and dangerousness statutes and procedures can leave defense counsel feeling as loony as their clients. Here’s some basics as a starting point: 18 USC § 4241 is determination of mental competency to face trial, § 4246 is “dangerousness” commitment.

There are two key Supreme Court decisions on involuntary medication: Sell v. United States is involuntary medication to restore competency; Sell is a higher standard than Washington v. Harper – involuntary medication because an inmate presents a danger to himself or others while in custody. Each of these cases and statutes are discussed in Godinez-Ortiz.

For Further Reading: The Defender Services Training Branch website has a series of incredibly useful outlines on federal mental health and competency issues: they are all available here.

For an interesting, non-legal bio of the Honorable Steven Trott, visit The Original Highwaymen's site here.

Image of the Hon. Steven Trott from

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


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