Case o' The Week: Obscene in Oshkosh? Perverse in Poughkeepsie? Kilbride and the National Obscenity Standard

Federal obscenity statutes require the jury to determine whether the image at issue is "obscene" using "community standards." When there's no control over where the image is sent geographically, however, (like in a spam e-mail), what is the relevant "community" whose standards are to be used to identify "obscene" images? Even in the Ninth Circuit, there's a pretty wide range in "communities" between, say, San Francisco and San Diego, Missoula and Mill Valley. Fortunately, Judge Betty Fletcher (left) answers this question for us in a particularly thoughtful and thorough new opinion, United States v. Kilbride,__ F.3d __, No. 087-10528 , 2009 WL 3448360 (9th Cir. Oct. 28, 2009), decision available here.

Players: Decision by Judge Betty Fletcher, joined by Judges Hug and Hawkins.

Facts: Kilbride and others controlled an overseas company, “Ganymede Marketing.” Id. at *1. The company send spam into the states with sexually-explicit images and faked email headers. Id. The defendants were charged with, among other things, interstate transportation of obscene materials for sale. Id. at *2. (Ed. Note: this does not appear to involve child porn, which is (also) criminalized under separate federal statutes that carry much higher exposures).

At trial the jury instruction regarding whether the material was “obscene” did not define which “community’s standards” the jurors were to consider when reaching this determination. Id. at *4. Using the Supreme Court’s ‘74 Hamling language, the instruction allowed the juror to “simply draw on knowledge of the community or vicinage from which he comes in determining contemporary community standards.” Id. at *4 (emphasis added).

Issue(s): “Defendants assert . . . that Hamling’s prevailing definition of contemporary community standards is not appropriate for speech disseminated via email. Because persons utilizing email to distribute possibly obscene works cannot control which geographic community their works will enter, Defendants argue that applying Hamling’s definition of contemporary community standards to works distributed via email unavoidably subjects such works to the standards of the least tolerant community in the country. This, Defendants assert, unacceptably burdens First Amendment protected speech. To avoid this constitutional problem, Defendants argue, obscenity disseminated via email must be defined according to a national community standard.” Id. at *8.

Held: “[We] join Justices O’Connor and Breyer [who wrote concurring decisions in Ashcroft v. ACLU, 535 U.S. 564 (2002)] in holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via e-mail. . . . To avoid the need to examine the serious First Amendment problem that would otherwise exist, we construe obscenity as regulated by §§ 1462 and 1465 as defined by reference to a national community standard when disseminated via the internet.” Id. at *12 (internal quotations and citation omitted). “In light of our holding, the district court’s jury instructions defining obscenity pursuant to Hamling was error. However, this error does not require reversal because this error was far from plain.” Id.

Of Note: This long decision discusses many issues other than what is described above. Judge Fletcher considers, and rejects, a “void for vagueness” challenge brought against the anti-SPAM statute. Id. at *13. Like Judge Berzon in last week’s Van Alstyne decision, Judge Fletcher also struggles to make sense of a severely fractured, controlling, Supreme Court decision. Id. at *9-*12.

Of greatest interest, however, is the new rule (or rather, newly-distilled rule) on the relevant “community” to be used to determine “obscenity.” It is a good rule: the national community standard denies “the most puritan of communities [the] heckler’s Internet veto affecting the rest of the Nation.” Id. at *10 (quoting Justice Breyer from Ashcroft v. ACLU). Interesting to speculate on how the Kilbride rule can be expanded – maybe to the “lascivious” prong of the federal child porn definition? See 18 U.S.C. § 2256(2)(a)(v).

How to Use: Kilbride will be a seminal decision for cases involving obscenity on the internet. Note, however, that (by and large) it will not be a important decision in child pornography cases. Pornography involving real children can be prosecuted even if it is not “obscene” under the Miller test. See New York v. Ferber, 458 U.S. 747 (1982). Hence, with the possible exception of the example above, Kilbride should not be read as requiring a “national community” test for whether an image is child porn – the obscenity definition (generally) is irrelevant in (real-child) porn cases.

For Further Reading: For an interesting article on the Hon. Betty Fletcher, thankfully one of the most “active” (as in “busy,” not “activist”) Senior Judges in the Ninth, visit the Seattle Weekly here.


Image of the Hon. Betty Fletcher by Steven Miller, of the Seattle Weekly, from http://www.seattleweekly.com/photoGallery/?gallery=744151


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

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U.S. v. Kilbride, No. 07-10528 (10-28-09). Is the standard for obscenity the local community standard? Not when there is a federal statute involved, in which case the standard has to be a national one. In this case, the defendant was convicted of spam charges, obscenity charges, and money laundering. The interesting issues arise over the definition of community standards when it comes to obscenity in the context of a federal, hence national, standards. Under the Supremes precedent in Miller, Hamling, and Ashcroft, the focus need not be a specific geographical community, but can refer to a national community standard to judge Internet or e-mail obscenity. The defendant's conviction for spam was also affirmed, with the 9th finding that the statute was not unconstitutionally vague. The 9th panel was B. Fletcher, joined by Hug and Hawkins.

U.S. v. Moriel-Luna, No. 08-50124 (10-29-09). This is a 1326 case, where the defendant argues that failure to inform him of the possibility of discretionary relief under 212(c) was prejudicial. The 9th (Gould joined byTallman and Panner) had previously reversed the district court, holding that the Immigration Judge should have informed the defendant of possible relief. It was sent back to see if relief was even possible. The district court concluded it was not, and the 9th affirmed. Agreeing with the district court, the 9th found that the defendant could not have gotten a visa immediately at the time (1995), but would have had to apply earlier (1990). Moreover, the fact that the defendant could have married his then-US citizen girlfriend, or have his parents become citizens, was not enough certainty to afford him relief here.

U.S. v. Rivera-Alonzo, No. 08-10081 (10-26-09). The defendant was convicted of assault on a federal officer with a dangerous weapon. The incident arose when the defendant crossed into the United States near San Luis, Arizona. A Border Patrol Agent sought to stop the defendant. The defendant ran from the agent. The accounts then differed: the agent was either tackled by the defendant or the defendant tackled the agent. A struggle ensued, again depending on the account, with one or the other being the aggressor. The jury sided with the agent's account. On appeal, the defendant argued that he was entitled to a lesser included offense of simple assault (a misdemeanor). The 9th (N. Smith joined by Noonan and Berzon) affirmed the conviction and sentence. The 9th held that the district court did not abuse its discretion in refusing the lesser included, because a jury, in finding a lesser, necessarily would have had to find the elements of the greater. The lesser involves an assault with no physical contact. Here, the facts were such that all admitted that physical contact was made, and there was a purported struggle for the gun. The facts as they came out meant that the jury could not find for simple assault without finding physical contact. There was also no clear error in the court finding that the defendant's conduct was motivated by the victim's official status, and so received an "official victim" enhancement under the Guidelines (3A1.2).

Case o' The Week: Ninth Airs Supreme's Dirty Laundry (Money Laundry Analysis, that is): Van Alstyne

Who has the temerity to call out the Supreme Court for a fractured decision that does far more to muddy money laundering cases, than to clarify them? Judge Marsha "Calls 'em Like She Sees 'em" Berzon, in United States v. Van Alstyne,__ F.3d __, No. 07-50105, 2009 WL 3381144 (9th Cir. Oct. 22, 2009), decision available here.

Players: Important victory on complex issue for CD Cal AFPD James Locklin and Defender Sean Kennedy. Decision by Judge Berzon (right).

Facts: Val Alstyne ran a Ponzi scheme and was charged with mail fraud and money laundering. Id. at *1. Two of the three money laundering counts involved transfers from a corporation to a partnership, used to make lulling payments to investors. Id. The third was a similar transfer, used to completely refund an investor’s outlay after the scheme began to unravel. Id. at *2.

He was convicted of seven mail fraud counts and all three money laundering counts. Id. at *2. After his conviction, and before this appeal, the Supreme Court decided United States v. Santos, 128 S. Ct. 2020 (2008). Id. at *1. Santos addressed the question of which financial transactions constitute “proceeds” that are chargeable under the federal money laundering statute. Id. at *3.

Issue(s): Van Alstyne now argues that Santos requires us to reverse his money laundering conviction. Id. at *1. “Van Alstyne contends that his payments to investors were no different than those held insufficient to sustain Santos’ money laundering conviction because the payments were ‘necessary for the operation to continue.’” Id. at *3. [Because these payments were not ‘proceeds’ as defined in the money laundering statute], “Van Alstyne now argues that Santos requires us to reverse his money laundering conviction.” Id. at *1.

Held: “We hold that Santos undermines our earlier approach to determining whether funds arising from a specified illegal activity constitute ‘proceeds’ for the purposes of the money laundering statute, 18 USC § 1956, and requires a reversal of Van Alstyne’s money laundering conviction for two of the three money laundering counts.” Id. at *1. “We . . . view the holding that commanded five votes in Santos as being that ‘proceeds’ means ‘profits’ where viewing ‘proceeds’ as ‘receipts’ would present a ‘merger’ problem of the kind that troubled the plurality and concurrence in Santos.” Id. at *7.

Of Note: Before he was a Judge, one of Professor W. Fletcher’s memorable lectures was a forceful attack on fractured appellate decisions. Santos proves his point. In Van Alstyne, Judge Berzon struggles to glean the holding of Santos, reading the tea leaves from a plurality decision, a dissent, and a Stevens’ swing vote that irked everyone. Van Alstyne is a careful, honest – indeed, blunt – decision that is a worthwhile read in an era where divided Supreme Court opinions are the norm. See id. at *5 (bluntly describing earlier Lazarenko panel’s erroneous reading of Santos, available here).

How to Use: Q: After Van Alstyne, when will Santos preclude a money laundering prosecution? A: It depends. Van Alstyne cannot be cited for the proposition that the distribution of money from mail fraud will always – or never – support a money laundering conviction: the “analysis of the ‘merger’ problem must focus on the concrete details of the particular ‘scheme to defraud,’ rather than on whether mail fraud generally requires payments of the kind implicated in Santos.” Id. at *8. Van Alstyne illustrates this context-specific analysis: the first two of the three money-laundering counts were reversed, while the third survived. Id. at *8.

The acid test, it seems, is “merger:” if the funds at issue are treated as “proceeds,” would this transform the underlying substantive crime (like mail fraud) into a simultaneous money launder crime in every case (i.e., “merge” the substantive offense with money laundering?) Id. at *4. Through no fault of Judge Berzon, this fact-bound test is difficult to understand and will be even more difficult to apply: thus preserve Santos objections to money laundering counts, a fertile field for appellate error.

For Further Reading: This was a prolific panel: last week the same three judges decided United States v. $186,416 in U.S. Currency, No. 07-56549, 2009 WL 33503042 (decision available here.

$186,416 is also worth a read for its compelling argument that the Fourth Amendment should apply – with even more force – in the civil forfeiture context (here, regarding funds forfeited from a medical marijuana clinic by the feds). Id. at *5-*6.



Image of the Hon. Marsha Berzon from http://blog.law.uark.edu/?p=76 . Image of medical marijuana symbol from http://marijuanacannabis.wordpress.com/2009/08/


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


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Tran-scending an En Banc Call

United States v. Tran, __ F.3d __, No. 07-30270 (9th Cir. Oct. 23, 2009) (ord. denying rehearing en banc.)

In June of 2009 we blogged that rarest of beasts: a good conspiracy decision. See blog here, discussing United States v. Tran__ F.3d __, No. 07-30270, 2009 WL 1773149 (9th Cir. June 24, 2009).

Surprisingly, someone did not share our view of Tran -- an en banc call went out. Today, happily, the Tran panel was vindicated: the petition for rehearing en banc was denied. See order here. Judges Gould, O'Scannlain, Kleinfeld, Tallman, Bybee, Callahan and Bea were less Tran-sfixed with the opinion and dissented from the order denying rehearing.

Now, let us all whistle collectively past the cert. graveyard . . .

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

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U.S. v. Van Alstyne, No. 07-50105 (10-22-09). The 9th struggled to make precedential sense out of U.S. v. Santos, 128 S.Ct. 2020 (2008), which dealt with the meaning of the money laundering statute. The 9th (Berzon joined by Hawkins and Clifton) sought to the holding from the cobbling together of the plurality and Stevens concurrence. Santos asked whether, under 18 USC 1956 (money laundering) "proceeds" meant profits or "gross receipts." The plurality held that the term "profits" referred to the profits of the illegal gambling operations, and not to the payments made to the runners and collectors and winners. The plurality would apply this definition of profits across the board. The dissenters would apply "proceeds" to the total amount taken in. The Stevens concurrence said it depended upon the enterprise, in that the proceeds meant profits in Santos because of the need to fuel the operation, but may not in a sale of contraband. The confusion as to what constitutes proceeds continues in the circuits. The 9th here faced a Ponzi scheme, where the defendant defrauded investors of $10 million plus. The 9th parsed Santos, and held that money laundering did not apply to the counts involving disbursements back to the investors, because some payments had to be made to keep the scheme going. Essentially, the disbursements were akin to winnings in the illegal lottery that were needed to draw in other investors. The 9th affirmed the one count where the disbursement was the total return of an invested amount to a defendant because that return was not needed to keep the scheme going, or draw in others, but constituted proceeds used help cover up the scheme from detection. (Congress subsequently amended the statute to have "proceeds" mean the "gross receipts.") The 9th's approach in the meantime concludes that Santos's holding that commanded five votes is one where "proceeds" means "profits" where viewing "proceeds" as "receipts" would present a "merger" problem (the illegal scheme is one and the same as the proceeds from laundering). In sentencing, the 9th vacated and remanded, correcting errors, and to apply Guideline amendments that clarify the calculation of loss. Finally, given the indigency of the defendant, "nominal" restitution payments of $10,000/month was too high.

Congratulations to AFPD Jim Locklin of the FPD Office of the C.D. Ca (Los Angeles).

U.S. vs. Todd, No. 08-30360 (10-20-09). The statute for the Trafficking Victim's Protection Act (TVPA) provides imprisonment of 15 years to life if the offense was "effected by fraud, force, or coercion." 18 USC 1591(b)(1). The punishment is 10 years to life if the offense was "not so effected" and the victim was 14 to 18. 1591(b)(2). Here, the defendant was convicted of the offense, designed to combat sex trafficking both internationally and interstate. The jury instruction required the jury to find beyond a reasonable doubt that, as one element, the defendant recruited victims knowing that force, fraud, or coercion would be used against a person to cause him or her to engage in a commercial sex act. The instruction did not require the jury to find that the victims were indeed "effected by fraud, force, or coercion." This failure for the jury to so find creates a conviction for which there is no punishment. The victims here were all over 18. There was evidence that he recruited them with a soft approach, and then turned violent, beating and coercing them. This evidence supports the elements of knowing recruitment and that the recruitment was done knowing that force would later be used. Under Booker, though, a jury must find the facts on which imprisonment is justified. The lack of a jury finding provides a punishment loophole. This error was not argued by defendant, but was noted by the 9th (Noonan joined by Pregerson and M. Smith) which found plain error prejudice. The defendant's convictions on the TVPA counts were still affirmed, as was his conviction on the conspiracy count. He did not appeal his conviction for transporting a prostitute. His sentences of 26 years on the TVPA counts were vacated; as were his sentences of 5 years on conspiracy and 10 years on transportation. The 9th wanted to allow the district court to consider all its resentencing options.

In affirming the convictions, the 9th analyzed the evidence as to the knowledge element. That is, when did the defendant know that force would be used? After all, he recruited them by courting and being nice (soft soaking). The 9th found such awareness in the defendant's later actions; he knew what he would do later. His actions were with an awareness of a future course where force would be used. In making this point, some strange analogies, given the subject matter, are made: the example of a mother making school lunch for her first child, and so knows that she will make school lunch for her second child; or that a judge knows his law clerks will use Westlaw. There is even a reference to Shakespeare's Sonnet 115 ("million'd accidents creep in")to illustrate that the future is not certain. Yet, certainty is not required in a congressional act requiring knowledge of a future action; there only must be proof of an awareness of the "modus operandi" that force would be used to force a person into prostitution.

U.S. v. Wesson, No. 08-30177 (10-19-09). What's worse than being sentenced for a crack offense? Being sentenced as a career offense. The 9th joins its sister circuits (1st, 2nd, 3rd, 6th, 7th, and 8th) in holding that because a defendant was sentenced as a career offender, he is thus not eligible for a reduction of his prior sentence under amendment 706. The defendant had been convicted of a crack drug offense. He was a career offender, and the district court sentenced him as such, and the court's departure for diminished capacity (5K2.13) was from the career offender guideline. His sentence was not under 2D1.1. The departure did not change this analysis, and indeed, the district court stated that it had sentenced him as a career offender. The 9th (Tallman joined by W. Fletcher and Gould) did state that its analysis might be different if the district court had found that the career offender guideline overstated the seriousness of the offense, and had sentenced him, through a departure, under 2D1.1. That was not the case here.

Case o' The Week: FRE-dom's Just Another Word for Nothing Left to Lose -- Estrada-Eliverio

Another slow week in the Ninth gives us a chance to reach back to the recent, and disappointing, illegal reentry decision in United States v. Estrada-Eliverio, __ F.3d __, No. 07-05191, 2009 WL 3163526 (9th Cir. Oct. 5, 2009), decision available here.

Players: Decision by Judge Paez (right). Hard-fought case by San Diego Assistant Defender Vince Brunkow.

Facts: Estrada-Eliverio went to trial on one count of illegal reentry, 8 USC § 1326. Id. at *1. One element of this offense is that the defendant had previously been deported. Id. To prove Estrada-Eliverio’s prior deportation, the government submitted three A-file documents: “a notice of intent to issue a final administrative removal order, a final administrative removal order, and a warrant of removal or deportation.” Id. The seal that normally authenticates these documents was not visible, and they were therefore inadmissible as self-authenticating documents under FRE 902. Id.

To get around this problem, the government called a Border Patrol agent who testified that i) such documents are kept in A-files, ii) these documents were copies of documents of Estrada-Eliverio’s A-file, iii) this agent was the custodian of this A-file, and iv) the documents admitted were true and correct copies of the documents in the A-file, which the agent had personally seen. Id. The documents were admitted (over defense objection) under FRE 901 – “Requirement of Authentication or Identification.” Id. Estrada-Eliverio was convicted, and appealed.

Issue(s): “Estrada-Eliverio argues that the district court erroneously admitted documents from his immigration file (‘A-file’) that were not properly authenticated at trial. He contends that the district court erred by allowing authentication under Federal Rule of Evidence (‘FRE’) 901 and that, even if Rule 901 applied, the government did not satisfy the rule’s requirement. We must determine whether the Federal Rules of Criminal Procedure permit authentication of official documents under FRE 901.” Id. at *1.

Held: “We conclude that they do. In addition, we hold that the district court did not abuse its discretion in admitting the A-file documents under Rule 901.” Id.

Of Note: As always, San Diego mounts a clever and creative argument in this appeal. Ticking backwards through the Federal Rules of Civil and Criminal Procedure, the defense argues that Federal Rule of Civil Procedure 44 applies in the case – and that rule limits the ways that an “official record” can be authenticated. Id. at *2. FRE 901 is not one of those ways. Id. Judge Paez, unfortunately, doesn’t bite, and holds that an official record can be authenticated under FRE 901 in a criminal case.

Unfortunately, the decision continues on and holds that a “custodian” can authenticate an official record under FRE 901, even if the custodian has no personal knowledge of the records’ creation. Id.

How to Use: Estrada-Eliverio adds – or rather affirms – another California Penal Code section to the list of offenses that are categorical “crimes of violence” triggering the sixteen-level specific offense adjustment under USSG § 2L1.1(b)(1)(A)(ii): assault with a deadly weapon or by means likely to produce great bodily injury, California Penal Code § 245(a)(1). Id. at *3 (citing United States v. Grajeda, No. 07-50387, slip op. at 13647, 13668 (9th Cir. Sept. 21, 2009)).

For Further Reading: Estrada-Eliverio makes it clear that any document authenticated under FRE 901 would satisfy Fed. R. Civ. Pro. 44. Is the reverse true? Probably not. For a discussion of the asymmetric relationship of these rules, visit the Federal Evidence Review blog here.


Image of the Hon. Richard Paez from http://www.law.washington.edu/GatesScholar/speakers.aspx

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

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Search & Seizure Update

For many years, our office has produced a search and seizure outline designed to cheer up those Eeyores of the criminal defense bar who believe the Fourth Amendment is a dead letter. While acknowledging the hits privacy rights have taken, the outline provides counterpoints demonstrating that judges have stood up for the Fourth Amendment even though “the safeguards of liberty have frequently been forged in controversies involving not very nice people” (Judge Boochever quoting Justice Frankfurter in Munoz, 701 F.2d at 1301). Pretrial motion practice in criminal cases protects our clients’ individual rights while providing the primary defense for privacy rights of all Americans.

So after two years, we have updated the outline. Among the many new cases, the big news from the Supreme Court is the decision in Gant overruling prior decisions that had divorced the scope of vehicle searches incident to arrest from the rationale of officer safety. The Ninth Circuit provided important guidance on computer searches in the en banc decision in Comprehensive Drug Testing. Two district court cases from last summer provide a reminder of the practical importance of motion practice for our clients: Judge Jones and Judge Haggerty granted motions to suppress in Freeman and Izguerra-Robles, litigated by AFPDs Ellen Pitcher and Nancy Bergeson, respectively.

The format for the outline has changed as the document increased in length. The outline is available here with an attached Table of Cases. Although the basic structure is provided by the Table of Contents, you can now search for an individual case name or a subject, like “computer” , to hit specific cases or types of searches and seizures at different parts of the outline. As always, the outline is only intended as a starting place for creative approaches to theories and research that ultimately will depend on the unique facts of individual cases.

If you have a favorite Fourth Amendment case that is missing, please feel free to email me your candidate for inclusion in the document’s next incarnation. Thanks to Caroline Livett and the other Lewis and Clark Law School clerks in our office who worked on this project.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Case o' The Week: The Rain in Spain Falls Mainly On the Plain (Error Review): Rex Harrison, Prosecutorial Misconduct, and Assault

Rex Harrison (right), a charming gentlemen, a master of etiquette, infallibly polite in every respect, "the milk of human kindness by the quart in every vein." United States v. Rex Harrison, Slip. Op. 14403, 14407 (9th Cir. Oct. 9, 2009), decision available here.

Well, maybe the defendant Rex Harrison in this case isn't quite Henry Higgins -- but he still didn't deserve the trial he got in Hawaii. A slow week in the Ninth and an order amending an August opinion let's us stretch back a bit and take a closer look at this interesting case.

Players: Decision by Chief Judge Kozinski joined by Judge Callahan, partial dissent by Judge Bybee. Hard-fought case by Hawaii Federal Defender Peter Wolff (who was not, by the way, trial counsel).

Facts: “Because the majority neglects to set forth the facts, [Judge Bybee presents] them briefly.” Id. at 14414 (Bybee, J., dissenting). Military police encountered defendant Rex Harrison parked on restricted“Army Beach” in Oahu. Id. Accounts conflict on what happened next, but the officers said a drunk Harrison gave his ID then attempted to run away. Id. The officers testified that Harrison punched one of them and made frightening movements towards another, yelling profanities. Id. Harrison testified at trial and recounted harassment by the officers, with the officers starting the brawl. Id. at 14415. He was charged with two counts of assault.

While crossing Harrison the Special AUSA repeatedly asked the defendant to comment on the testimony of the government’s witnesses. Id. at 14417. The prosecutor also repeatedly vouched for the government witnesses. Id. at14408 (majority decision). The defense did not object to any of these errors at trial. Harrison was convicted of both counts of assault.

Issue(s): “Improper questioning was an organizational theme for the prosecutor’s entire cross-examination. The vouching was similarly patent.” Id. at 14408. Because, however, there was no trial objection, the question for the Ninth was whether the “prosecutors’ misconduct ‘affected the outcome of the district court proceedings.’” Id. at 14409 (quoting United States v. Olano, 507 U.S. 725. 734 (1993)).

Held: “Harrison must also show prejudice, and he hasn’t.” Id. at 14409. “Any prejudice from the vouching was also ameliorated by the judge’s belated curative instruction.” Id.

Of Note: In a persuasive dissent, Judge Bybee compares Harrison with two previous Ninth cases on prosecutorial misconduct, Geston and Combs. He correctly (we think) argues that the vouching and “second-order questions” were at least as extreme here. When one reads Judge Bybee’s more thorough account of the facts and his recounting of the outrageous prosecutorial misconduct at trial, it is shocking that both counts of conviction weren’t reversed.

How to Use: Though victory in Harrison was ultimately stolen by Olano plain error review, both the majority decision and the dissent are useful primers for the twin sins of “second-order” questions (asking a witness on cross to comment on the veracity of another witness, like a cop), and prosecutorial vouching. Mine the decision for good language on both errors. (Aside: both convictions would have almost certainly been reversed had there been objections at trial, and if the Ninth were not engaged in Olano plain error review on appeal. A useful reminder on the importance of objecting and preserving the appellate record).

The case also confirms an earlier Ninth Circuit holding on federal assault: physical intimidation alone will not always constitute assault – there needs to be proof of force or threat of force. Id. at 14411 (quoting United States v. Chapman, 528 F.3d 1215, 1222 (9th Cir. 2008)). Harrison and Chapman are two key, recent cases that merit a close read in any federal assault case.

For Further Reading: Harrison was sentenced to two years in prison for a drunken fistfight with a cop, was remanded when the verdict was returned, and this beach brawl conviction earned a press release from the Hawaii United States Attorney’s office (though there was no USAO press release when Chief Judge Kozinski lambasted the office for prosecutorial misconduct). For more on this case, including the SAUSA who tried it, visit an interesting article here.


Image of Rex Harrison, from My Fair Lady, from http://www.altfg.com/blog/awards/george-cukor-oscar-nominated-actors/

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

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U.S. v. Estrada-Eliverio, No. 07-50191 (10-5-09), decision available here. The mantra in evidence is "authenticate, authenticate, authenticate." The 9th made it a bit easier for the government to do so, at least with public documents in immigration cases, so long as the witness says the magic words of "it looks the same...cross my heart and hope to die, stick a needle in my eye" (or words to that effect). In this case, the prosecutor sought to introduce prior records of deportation from the A-file in a 1326 reentry case under Fed. R. Evid. 901. Defense counsel objected, arguing that the Fed. R. Crim. P. 27 only allowed such records in under a Fed. R. Civ. Pro. cross reference to Rule 44 that required certification. The 9th said that was, indeed, one way, but another was provided through FRE 901, which required the custodian of record to say "yep, that record is a copy of the authentic one." The Fed. R. Crim. P. 27 reference was not the only way. Further, it was not an abuse of discretion for the court to admit it, despite the objection that the witness had not seen it created. That is not required. The witness need only to testify that it is the same. The 9th (Paez joined by Fisher and District Judge Robart) also held that the challenge to the state prior of assault leading to bodily injury, Calif. Penal Code 245(a)(1), was foreclosed by the court's holding in Grajeda, 9-21-09.

Case o' The Week: "A Masterpiece of Craftsmanship" - Paul, "Unreasonable" Guideline Sentences, and Mem Dispos

The Ninth Circuit denies an en banc call for an opinion that is (in our view, if not Judge O'Scannlain's) a "masterpiece of craftsmanship" -- finding an in-guideline sentence "unreasonable" in one of the few post-Booker sentencing review cases to do so. United States v. Paul,__ F.3d __, No. 08-30125, 2009 WL 3109873 (9th Cir. Sept. 30, 2009) (Ord.), decision available here.

Players: Concurrence in order denying rehearing en banc by Judges Reinhardt (above left) and M. Smith. Dissent from order by Judge O’Scannlain (above right), joined by four other judges. Nice victory by Montana AFPD Michael Donahoe.

Facts: Patricia Paul was convicted of embezzlement and sentenced by Montana District Judge Haddon to an in-guideline sentence of sixteen months. Id. at *1. In Paul I, a memorandum disposition, a panel reversed the sentence as “not reasonable” because the judge hadn’t fully considered the many mitigating factors. United States v. Paul, 239 Fed.Appx. 353, 355 (9th Cir. Aug. 17, 2007) (mem.).

On remand, Judge Haddon reduced the sentence by a whopping month. 2009 WL 3109873, *1.

Paul appealed again, and the panel of Judges Reinhardt and M. Smith reversed again in a published opinion, finding Judge Haddon had “flouted” both the “spirit and express instructions” of the mandate. Paul, 561 F.3d 970, 973-74 (Paul II). In Paul II (a published decision), the per curiam panel explained in detail why the 16-month in-guideline sentence was unreasonable, and sent it back to another district court judge. Judge Hall dissented.

There was a sua sponte en banc call on Paul II; the order rejecting that call is the subject of this memo.

Issue(s): Either 1. “[W]hether a district court can disregard the spirit and express instructions of an appellate court’s mandate to reconsider an unreasonable sentence,” 2009 WL 3109873, or “[W]hether Paul’s new 15-month sentence was substantially unreasonable,” id., or both.

Held: En banc call rejected - either Judge Haddon ignored the spirit and express instructions of the mandate, or the 15-month in-guideline sentence was unreasonable, or both.

Of Note: This Paul order is worth a read because it lifts the curtain to the Ninth Circuit’s battles in this post-Booker sentencing. It contains a passage just for us – Judge O’Scannlain writes, “I dissent for the narrow purpose of sending the criminal defense bar this message: do not cite this case for the proposition that Paul's sentence was substantively unreasonable.” Id. at *1. Message received – Criminal Defense Bar take note: a distinct minority of the Ninth Circuit (five dissenting judges) doesn’t want you to cite Paul for the proposition that an in-guideline sentence can be unreasonable.

Of course, the remaining twenty-two active judges may think that such use of Paul is just fine . . . .

How to Use: Should you cite Paul I or II when arguing that an in-guideline sentence is unreasonable? You don’t have much choice – there’s precious few decisions reversing an in-guideline sentence as unreasonable.

This order also continues the interesting debate on mem dispos. Judge O’Scannlain grumbles in his dissent that Paul I should not be cited, because it is a mem dispo (despite the fact that its language and holding were “elevated” into a published opinion in Paul II).

Of course, thanks to an inane Supreme Court rule, mem dispos can now be cited. Granted, as Judge Tashima pointed out recently in Contreras, mem dispos often contain pretty dubious analysis. 2009 WL 2960623, *3 n.4 (referring to the McCoy mem dispo).

One of the biggest fights over the significance of mem dispos took place in the (now withdrawn) Carver v. Lehman case (see blog here). In Carter, two judges fought over the precedential value of mem dispos in a heated debate. The two jurists? Judges Reinhardt and M. Smith – the two judges now standing by Paul I and Paul II against Judge O’Scannlain’s dissent.

For Further Reading: Depressing that this brouhaha is over - gasp - one reversal of an in-guideline sentence. Who stole our Booker revolution? For a very interesting look at the state of our sentencing scheme, hit Professor Berman’s blog here. He describes a new article by Professor Ricardo Bascuas titled, “The American Inquisition: Sentencing after the Federal Guidelines.” From the abstract, sounds like a great piece – a blunt assessment of federal sentencing in the shadow of the mandatory – er, “advisory” – guidelines.



Image of the Hon. Diarmuid O'Scannlain from http://www.uscourts.gov/ttb/dec05ttb/legislationwaits/index2.html . Image of the Hon. Stephen Reinhardt fromhttp://www.law.harvard.edu/academics/clinical/imconf99/judger2.JPG

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

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U.S. v. Ruehle, No. 09-50161 (9-30-09). Defendant was the financial officer of a company that was accused of fraud via backdating stock options. The story broke in the Wall Street Journal, and the civil suits soon started being filed. The company's lawyers met with the board, and individually with officers. Later, some of the officers were criminally charged. This defendant argued to the district court that his conversation with the lawyers were protected by the attorney-client privilege. The district court agreed. The 9th (Tallman joined by Fisher and Gould) disagreed. The 9th pointed out that the privilege is narrowly construed, and that the federal courts use an eight-part test laid out in In re Grand Jury Investigation, 974 F.2d 1068 (9th Cir. 1992) (below). In that test, the defendant bears the burden. In the test the district court used, which derived from state practice, the burden shifted to the government, as the focus was on the defendant's own reasonable belief that a relationship existed. The defendant here failed in establishing that statements he made at a meeting were "in confidence" because the lawyers were lawyering up for the company, expressed this, and that was why they met with him.

The test is: "(1) Where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) unless the protection is waived.

U.S. v. Paul, No. 08-30125 (9-30-09). This is an order denying en banc review. The case concerned the issuance of a mandate, although the backdrop was the reasonableness of a sentence. In dissenting from the denial of en banc, O'Scannlain (joined by Kleinfeld, Tallman, Callahan, and Bea) admonish the criminal defense bar that this is not a reasonableness of sentence case, and should not be cited as such, and woe to those who do. Reinhardt and M. Smith, in a concurrence to the denial, tisk tisked the dissent. No judicial love lost between the camps.

Two opinions granting sentencing relief to capital petitioners from Arizona.

Jones v. Ryan, No. 07-99000 (10-2-09). The 9th (Thomas joined by B. Fletcher and Hawkins) finds IAC in the sentencing phase of this capital prosecution for two murders. The defense lawyer failed to (1) secure appointment of a defense mental health expert; (2) seek neurological and neuropsychological testing; and (3) present additional mitigation witnesses and evidence. The mitigation related to petitioner's horrific childhood abuse, extensive head injuries and trauma, ongoing drug abuse, cognitive difficulties, and a host of mental and emotional disorders.

Congratulations to AFPDs Letty Marquez and Sylvia Lett of the FPD Arizona Capital Habeas Unit.

Libberton v. Ryan, No. 07-99024 (10-2-09). The 9th (W. Fletcher joined by Clifton and M. Smith) finds IAC in the sentencing phase of this capital murder. The murder was committed by three co-defendants. There was extensive evidence, not used by counsel, that the petitioner was a mere follower, and that one other co-defendant was the leader, and the other co-defendant had a violent background and was threatening to the petitioner. Petitioner also suffered from an abusive childhood, was placed in CPS for years as a result, and was brutalized by his father. Further, there was evidence as to his mental and emotional state that could have been presented. The 9th did deny relief on the guilt claims, finding that the "deal" between one co-defendant and the government was not disclosed, but was harmless given the nature of the statement the co-defendant had made previously. The 9th also found that AEDPA controlled one guilt claim because the claim had been dismissed.