U.S. v. Armstrong, No. 09-30395 (8-31-10) (Berzon with Canby and Noonan). Can one adjust for hate? Yes, under the Guidelines. This appeal arose from a conviction for a racially motivated assault. Three men viciously beat an African-American simply because he was African-American. The defendant here was not the first one to assault the victim, but participated in the planning (taking place in a Wal-Mart grocery section in Idaho). After the other co-defendant had tackled and started to beat the victim, the defendant joined in. Was it proper to assess the defendant an adjustment under 3A1.1(a) for a racially motivated attack when another defendant selected the victim, started the fight, and the defendant was a Johnny-come-lately? Sure, concluded the 9th, because the adjustment was designed to prevent such attacks. The court did not have to make separate findings that the defendant had selected the specific victim before the attack; the fact was that race motivated the defendant. Moreover, the court also properly assessed an adjustment for obstruction of justice because the defendant testified that race was not a motivation, and that he did not use racially motivated slurs. the evidence at trial was to the contrary, and the court made findings that all the requirements of perjury had been met.

U.S. v. Kloehn, No. 06-50456 (8-30-10) (Reinhardt with Wardlaw; dissent by Trott). In some instances, the trial must not go on. The defendant was on the stand for a fifth day in a complex and complicated tax evasion trial. The first trial had ended in a hung jury. In the midst of the testimony, the defendant's son, diagnosed with terminal cancer, suffered a massive seizure and "had little life expectancy left." Defense counsel asked for a 2-day continuance so the defendant could see his son, with whom he lived prior to trial, in Las Vegas. Despite the fact that no one questioned the gravity of the son's condition, and there was a message from the treating doctor saying "come quickly," the government opposed because the jury would be inconvenienced, and lose track of the testimony. The judge denied the request without any findings. The defendant completed his testimony, and the government called an agent as a rebuttal witness. When the agent went long, defense counsel asked that the proceedings be ended for the day so the defendant could catch a plane to Las Vegas, and that he be excused for the rest of the trial. The court ended the proceedings for the day, and excused the defendant. The son died an hour after the father arrived. The next day the court explained to the jury that the defendant could absent himself if he wanted. He was convicted. On appeal, the 9th held that the district court abused its discretion in refusing a 2-day continuance. All the factors in weighing the discretion for a continuance, set out in U.S. v. Flynt, 756 F.2d 1352 (9th Cir. 1985) weighed in favor of granting a continuance, and a denial was unreasonable. The defendant as diligent, the continuance requested was short and proper, the court failed to make findings of inconvenience, and the defendant was prejudiced, it affected his ability to testify. The government did not request a harmlessness analysis, and the 9th found it waived. Even so, the 9th believed the case was close (it had hung previously). Dissenting, Trott would find any error, if there was one, harmless.

U.S. v. Kuo, No. 08-10314 (8-30-10) (Graber joined by Beezer and Fisher). This is a restitution issue. First, on remand from the Supremes, the 9th holds that the district court, at sentencing, made clear that it was going to order restitution for the victims of this civil rights violation related to prostitution. The restitution was past the 90 days proscribed by the sentencing statutes. By so indicating, the court still had jurisdiction. Restitution was timely. Second, however, the court had ordered restitution based on a formula used in the sex trafficking statute, which is the market value of prostitution and acts. The defendant was not convicted of this act, but of a civil rights violation under 18 USC 241. The trafficking method of calculation, expressly designed to capture the gains from sex trafficking, could not be used as it focused on profits and not victim loss of income as required under 18 U.S.C. 3663. The restitution cannot be disgorgement of ill-gotten profits, but must go to the making of the victim whole. The issue of restitution is therefore remanded.

Congratulations to FPD Peter Wolff of the FPD Office of Hawai'i (Honolulu).

Case o' The Week: Ninth's Hurd Mentality - Good decision rejects use of post-Miranda Silence

"You have the right to remain silent. Your silence can and will be used against you at trial."

Count on the California Court of Appeal to rewrite the Miranda warnings and permit a defendant's silence to be used against him at trial as evidence of guilt. Count on Judge Beezer to set 'em straight. Hurd v. Terhune, 2010 WL 3293355 (9th Cir. Aug. 23, 2010), decision available here.

Players: Decision by Judge Beezer, joined by Judges Pregerson and Thompson.

Facts: Hurd’s wife, Bea, sought a divorce. Id. at *1. Bea was upstairs with Hurd when their son heard a shot. Id. Bea came down, crying, and collapsed; at the hospital she died of a single shot to her chest. Id. At his California court trial, Hurd testified that Bea was borrowing his gun and it accidentally went off when he showed her how to operate it. Id. at *2.

He had told the same account to police after being Mirandized. Id. The cops had then asked him to submit to a polygraph; Hurd refused. Id. The cops asked Hurd to demonstrate how the shooting occurred; he refused. Id. Before trial, Hurd moved to suppress his refusals to take a polygraph and to reenact the shooting. Id. After his motion was denied, the D.A. repeatedly referred to Hurd’s refusals as evidence as guilt at trial. Id. Hurd was convicted and sentenced to LWOP; his appeals were denied, as was his federal habeas in district court. Id. at *2.

Issue(s): “We first address Hurd’s argument that the state trial court improperly admitted as evidence his refusal to reenact the shooting in violation of his Fifth Amendment rights as determined by the Supreme Court in Miranda v. Arizona, . . . and Doyle v. Ohio.” Id. at *3.

Held: “Because the California courts’ application of Miranda and Doyle was unreasonable, we reverse the decision of the district court and direct that a writ of habeas corpus issue.” Id. at *1. “The California Court of Appeal’s Miranda and Doyle analysis is incorrect. The Supreme Court has clearly established that, after receiving Miranda warnings, a suspect may invoke his right to silence at any time during questioning and that his silence cannot be used against him at trial, even for impeachment.” Id. at *5. “Contrary to the conclusion of the California Court of Appeal, the right to silence is not an all or nothing proposition. A suspect may remain selectively silent by answering some questions and then refusing to answer others without taking the risk that his silence may be used against him at trial.” Id. at *6.

Of Note: What is “clearly established federal law” for the purpose of AEDPA review? Supreme Court decisions. But what is one to make of a wealth of federal circuit precedent dealing with the same issue presented by a habeas petition? That is “persuasive authority,” explains Judge Beezer. Id. at *6. It is one of the many inanities of AEDPA review that – like Lord Voldemort – circuit authority is the precedent that “must not be named.” Aware of that taboo, Judge Beezer tacks his list of circuit authority on the use of a suspect’s silence after concluding that Supreme Court law controls this habeas issue. Id. (discussing Ninth Circuit and other circuit authority).

How to Use: Hurd is a great opinion on the issue of post-Miranda silence. Judge Beezer carefully distinguishes Supreme Court authority that allows post-Miranda inconsistent statements to be used against a defendant. Id. at *5 (discussing Anderson). He also emphasizes that the protections of Miranda silence can apply to silence to specific questions: the right is not an “all or nothing proposition.” Id. at *6. Finally, he explains that a suspect who answers some questions may not have unambiguously asserted Miranda, but if the suspect later remains silent that silence is not then admissible. Id. at *6. Hurd will be a lead decision on several interesting corners of Miranda law; it is worth a close read.

For Further Reading: A week ago, in Rivera-Corona, Judge Berzon explained how to fire retained counsel and get a P.D.. See blog post here. Is that switch a good idea? That frequent debate is the subject of yet another recent study; Richard Hartley, Holly Miller and Cassia Spohn, Do you get what you pay for? Type of counsel and its effect on criminal court outcomes, discussed (with considerable skepticism) here.


Image of Ernesto Miranda from http://www.dominickrusso.com/

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

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U.S. v. Havelock, No. 08-10472 (8-23-10) (Canby with B. Fletcher; dissent by Graber). The 9th reversed convictions under 18 U.S.C. 876(c), mailing threats, because the threats have to be addressed to an individual person, as reflected in the address on the mailed item. The jury cannot go within the envelope and read the salutation or contents to find a named person. Here, the defendant was angry with the world as a result of business setbacks. He mailed packets addressed to news organizations and websites that were a hodgepodge of rants, threats, and warnings. He dropped the packets in the mail. The rants though, were mailed on the eve of the Super Bow in Glendate, Arizona, and indicated that he would shoot innocent people, slay children, and create a bloodbath at the game. He would be responsible for a massacre at the Super Bowl. The blood of the dead would be on the hands of various government and city officials. The defendant anticipated being shot by the police. Armed to the teeth with firearms (legally possessed), the defendant went to the Super Bowl site. There, he had second thoughts, called his family, and turned himself in. No one was hurt. The mail rants were read on Monday, and the defendant was subsequently charged with mailing threats and convicted. The 9th reversed, holding that the threats had to be addressed to someone, and these were not. The statute specifically states that mail must be addressed to a "person" and this means a natural person. The context of the statute makes clear an individual is intended. The government so agreed. To prove an addressee, though, the government cannot use as evidence the contents of the letter or packet, but must look solely at the address on the envelope. This is different from the approach of the Tenth Circuit, in Williams, 376 F.3d 1048 (10th Cir. 2004), which allows "at a minimum" the envelope and the salutation. This is too broad a fishing expeditition for the 9th. The 9th sidesteps having to rule on the other issues of first amendment and mootness of threat. Graber dissents, arguing for a wider definition of "addressed," and would include corporations of businesses. Graber uses an example (among several) that a letter addressed to the Ninth Circuit threatening to take vengeance on a judge for today's decision would escape prosecution because of this result.

Congratulations to AFPDs Dan Kaplan and Jeff Williams of the FPD of Arizona (Phoenix).

Hurd v. Terhune, No. 08-55162 (8-23-10) (Beezer with Pregerson and Thompson). All the world is a stage, but Miranda does not mean you have to act out a particular role. Here, the petitioner was charged with first degree murder of his wife. There was an ongoing divorce and the issue was whether the shot was accidental (showing her how to use the gun in case of an intruder) or premeditated murder. The first trial resulted in a hung jury. The second trial resulted in a LWOP sentence. At trial, the state court allowed the prosecutor to argue that petitioner's refusal to re-enact the shooting of his wife during police questioning was affirmative evidence of guilt. The 9th held that this was unreasonable application of Miranda and Doyle v. Ohio, 426 US 610 (1976). A petitioner can invoke Miranda on a question by question basis, and in response to a request to act something out. The petition was granted.

U.S. v. Ali, No. 07-10529 (8-25-10) (N. Smith with Rymer and McKeown). Buy low and sell high is fine. Indeed, our economy depends upon it. But, some companies sell low to special retailers who are then supposed to sell at a discount to specified users. Specifically, Microsoft sells its software to authorized educational retailers who sell it to educators and education institutions. If, however, a buyer says he is an education retailer and he is not; or he buys as an education retailer but sells to non-education users, then the buyer is committing fraud. What is more, it can be wire and mail fraud. And, if profits are used to buy stuff outside of the scheme, it can be money laundering. All of this happened here, where the defendants masqueraded as authorized educational retailers, but sold to non-authorized users to the tune of $20 million. The government prosecuted for wire and mail fraud, and the charge was upheld. The terms of the sale were protected, and the expectation of profit if the software had been properly sold was within the statute's purview. The 9th also uphold all the money laundering counts but one against a sufficiency of evidence challenge. The reversal of the one money laundering count came because the government did not clearly show that profits were not plowed back into the scheme, so that there was merger. The profits had to go outside the scheme for laundering.

U.S. v. Langer, No. 09-50399 (8-20-10) (Breyer, D.J. with Trott and W. Fletcher). The 9th decides that a rap sheet, even in the absence of corroborating evidence, is still sufficiently reliable to establish by a preponderance of evidence the timing and length of the resulting sentence. The defendant agreed that he had a prior conviction for assault. He argued that the rap sheet indicating 180-day sentence (which got him an additional 2 points under criminal history), may be good enough to prove identity (that's me) when there is a fingerprint match, but is not good enough when it comes to the length and timing of the sentence. The 9th holds though that rap sheets, when matched with fingerprints, are good enough. In Alvarado-Martinez, 556 F.3d 732 (9th Cir. 2009), the 9th found that a finger-print matched rap sheet was sufficiently reliable for criminal history. If it was good enough for that, reasons the 9th, it is good enough for timing and length. The 9th notes that the defendant did not challenge the rap sheet as incorrect, or contest the sentence, and indeed admitted he had such a conviction. This is a reliability decision, and it is reliable enough here.

U.S. v. Farias, No. 09-50269 (8-20-10) (Paez with B. Fletcher and Walter, D.J.). This is a Faretta decision concerning self representation. The 9th reverses a conviction in a 1326 case because the defendant had indicated that he wished to represent himself, the district court acknowledged his desire, but stated that there would be no continuances. The defendant had asked to represent himself in a timely manner at a pretrial conference (January 12th; the trial was scheduled for the 13th). The district court tried to dissuade the defendant, and there was a moment when the defendant said, "you have a point," when it came to the difficulties, but the colloquy was never completed. The record, as it was, indicates that the defendant's request seemingly was made in good faith, and he cited his dissatisfaction with counsel. The district court's statement that there would be no continuance in light of this was an abuse of discretion. The right to represent oneself includes the right to meaningfully prepare. The 9th stresses that the record is bare of any indication that the requests was for delay or in bad faith.

Congratulations to Janet Tung of the Federal Defenders of San Diego for the win.

U.S. v, Hunter, No. 09-30246 (8-20-10) (Snow, D.J., with Fisher and Berzon). This concerns restitution. The defendant committed fraud in obtaining a position as a nurse for a school district in Alaska. The FBI uncovered the stolen identity and after conviction, and a 96-month sentence, she was ordered to pay $12,558 to the school district and $5,547 to the Department of Labor. The Mandatory Victims Restitution Act requires restitution to actual loses of those directly harmed. Here, both the school district and the Department were harmed because they paid for services of a licensed nurse, and she was not. This tracks the Sixth Circuit in a similar case. The amount of restitution is not reduced by the value of services the defendant had performed, given her non-licensure.

Detrich v. Ryan, No. 08-99001 (8-20-10) (Paez with Pregerson and McKeown). The 9th grants penalty habeas relief in this capital case. There was IAC when it came to penalty investigation and presentation in a resentencing. Trial counsel did not use a expert mitigation investigator: and the investigator used was unqualified to do a life history. His investigation was minimal at best. No defense mental health expert was used nor defense evidence presented. Counsel failed to investigate and present the extensive mental health history. This ineffectiveness was prejudicial.

Crittenden v. Ayers, No. 05-99006 (8-20-10) (Fisher with Farris and Berzon). The 9th grants habeas relief in this capital post-conviction challenge. The 9th ordered a remand for a hearing on a Batson issue. At trial, the state struck the only African American prospective juror, supposedly for a reluctance to impose death. The prosecutor, however, kept other jurors that expressed the same qualifications when it came to the death penalty. Under Batson, the petitioner has to have presented a prima facie case, which he did; and the State has to come forth with a race-neutral explanation. If time has passed, and memories faded, the state can produce reasons that are race neutral based on the record and circumstantial evidence. At the third step, a court has to assess whether the strike was "motivated in substantial part" by race. Cook v. LaMarque, 593 F.3d at 815. Cook came down after the district court had conducted a mixed motive analysis (where there race neutral reasons that would have led to a strike even if race was an issue). Under Cook, if race was a substantial part of the strike, then Batson relief must be given, even if other reasons exist or provided substantial reasons. The remand is to allow the court, which had found that race did play a factor, to conduct a Cook analysis.

Case o' The Week: Ninth Deals with Retainer Problems, Rivera-Corona and Firing Retained Counsel

What is the standard for relieving retained counsel and getting a public defender appointed? Surprisingly, the Ninth didn't have a test for this situation (though concurring Judge Fisher would beg to differ). Never one to shrink from a challenge, Judge Berzon creates the rule for the Ninth in an interesting new case that will be important for indigent defense. United States v. Rivera-Corona,__ F.3d __, No. 08-30286 (9th Cir. Aug. 18, 2010), decision available here.

Players: Decision by Judge Berzon joined by Judge Tashima, concurrence by Judge Fisher.

Facts: With retained counsel, Rivera-Corona pleaded guilty to a § 924(c). Slip Op. at 12151. At the plea colloquy the judge did not advise the defendant of his “‘right to be represented by counsel – and if necessary have the court appoint counsel – at trial and at every other stage of the proceeding,’ as required by . . Rule 11(b)(1)(D).” Id.

After he pleaded guilty, Rivera-Corona moved to relieve his counsel and withdraw his plea. Id. at 12152. During a hearing, Rivera-Corona explained that the lawyer had demanded more money to go to a jury trial, and had threatened to “prosecute” his family. Id. The retained attorney confirmed that the retainer had been exhausted long before the plea. Id. The district court denied Rivera-Corona’s requests and imposed a sentence. Id.

At no point did the court explain that the defendant had the right to court-appointed counsel if he qualified financially. Id. at 12153. Instead, the court held that while Rivera-Corona could hire a new lawyer, he did not have the right to the expense of court-appointed counsel, because the only remaining stage in the case was sentencing. Id. at 12153.

Issue(s): “This case requires us to clarify the standard for considering a criminal defendant’s motion to discharge his privately retained counsel and to proceed with a different, court appointed lawyer instead.” Id. at 12151.

Held: “Remarkably, we have no presently binding case law dictating the standards applicable in the situation in which a district court considers a defendant’s motion to discharge his retained counsel and be represented by a court-appointed attorney.” Id. at 12155. “[T]he district court erred in summarily rejecting Rivera-Corona’s request for appointed counsel to replace retained counsel simply because of the expense and the stage of the proceedings.”
Id. at 12158. Reviewing a district court’s determination of financial eligibility for mid-case appointment under § 3006A(c) . . . requires a three-fold determination.

First, did the district court conduct an ‘appropriate inquiry’ into the defendant’s financial eligibility?

Second, if the district court conducted an appropriate inquiry, was the court correct in its ultimate conclusion of financial eligibility?

Third, if the district court conducted an appropriate inquiry and defendant is financially eligible for mid-case appointment, did the district court err in its weighing of the interests of
justice?”

Id. at 12159 (citations and internal quotations omitted).

Of Note: For most cases, Judge Berzon’s new rule is fair for the defendant and best for the system. As she correctly observes, “[An] unpaid lawyer is likely, consciously or subconsciously, to resent the transformation of an agreement to represent a defendant for pay into an involuntary pro bono arrangement, and therefore to seek to end the representation as expeditiously as possible.” Id.

The problem is in the small minority of cases where private counsel takes an unrealistically low retainer from a poor family and then abandons the client mid-stream. The Federal PD then typically inherits a thoroughly disgruntled client, a case file with a pristine and untouched discovery package, and a district judge grumbling about a looming Speedy Trial date. P.D.s aren’t snitches and don’t like wading into Bar referrals or fee disputes; it’ll be interesting if Rivera-Corona aggravates this occasional dilemma for indigent defense.

How to Use: Judge Berzon gives an interesting passage on appellate waivers: “Rivera-Corona’s guilty plea included a waiver of his right to appeal, but his contention that his plea was involuntary raises the possibility that the appeal waiver was involuntary and so not enforceable.” Id. at 12154 n.1. Here, the issue wasn’t pressed by the government so
the Court did not have to explain what is an “involuntary” plea. An intriguing appellate avenue for a future case.

For Further Reading: What do absurd sentences and mand-minds produce? A docket full of attorney-client disputes. A fine example is United States v. Farias, 09-50269 (9th Cir. Aug. 20, 2010), decision available here, yet another case this week involving a disgruntled client. In Farias, Judge Paez finds the defendant made a timely Faretta demand - the day before a jury trial! Slip op. at 12940.


Image of a retainer from http://www.johnsdental.com/images/ortho/removable/sprngretnr/mxsprjdl.jpg


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

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U.S. vs. Withers, No. 05-56795 (8-19-10) (Pregerson with Paez; dissent by Noonan). The 9th vacates and remands the denial of petitioner's 2255 appeal. The 9th also reassigns the case from the district court (Real). The petitioner had a 30-year sentence, imposed more than 12 years ago. However, his attempts at post-conviction review were summarily denied by the district court. On this latest appeal, the 9th finds that the appeal was not untimely because the petitioner's pro se appeal should be construed as a motion to reopen the time to appeal because he found out about the judgment late (the allegations were uncontested). As to the merits of the petition, two were not "patently frivolous." The petitioner alleged that the court violated his right to a public trial because he ordered the courtroom close during voir dire; and second, his appellant counsel was ineffective for failing to raise the issue on the trial appeal. In reviewing the record, the 9th concludes that the district court had not made findings or stated a reason for such closure, and this was structural error. The failure to raise on appeal might be excused by the ineffectiveness of appellant counsel, as claimed by petitioner. The case should be remanded for a determination of the merits and whether there is prejudice and whether there is a procedural bar. Given that this was the fourth appeal, and that the district court acted summarily in the previous matters, the 9th reassigns. In dissent, Noonan argues that enough is enough. Noonan would look at the merits, and find that they do not warrant habeas relief, as trial counsel failed to object and appellant counsel failed to raise the issue. There are strategic and tactical reasons for such decisions. The issue of whether structural error can be found harmless can be decided here.

U.S. v. Maddox, No. 09-30284 (8-12-10) (Hawkins with Lucero; dissent by N. Smith). The defendant was pulled over for traffic violations. He became belligerent (note: asking the officer "Why the f * * k are you stopping me!" is not a good way to start the conversation), and was found to be driving on a suspended license and had other problems with the car (expired tags), and he ended up being arrested. Upon arrest, the officer took the defendant's keychain with an attached closed container and placed them on the seat. After the defendant's arrest, and the defendant being placed and secured in the police car, the officer went back to defendant's car, retrieved the keychain, unscrewed the container, and --lo and behold -- it contained what appeared to be meth. Subsequently the car was impounded and a search of a laptop container disclosed a handgun and more meth. The 9th held that the unscrewing of the container screwed up the Fourth Amendment, because it was not a search incident to arrest. The defendant was away from the car, secured, and not a threat. There was no threat visible in the car. Hence, the keychain container should not have been searched. The laptop container should not have been subject to a so-called inventory search because the car need not have been impounded under state law. The defendant offered to have a friend drive it away, and the car was not impeding anything. It was not a valid search. In dissent, N. Smith argues that the keychain was in defendant's hands when he was arrested, and so that made it subject to search incident to arrest. The timing should be left to the officer.

Congratulations to AFPD Matt Campbell of the Federal Defenders of Eastern Washington and Idaho (Spokane).

U.S. v. Pineda-Moreno, No. 08-30385 (8-12-10) (dissents from order denying en banc review by Kozinski with Reinhardt, Wardlaw, Paez and Berzon; Reinhardt also writes a separate dissent).

The 9th turns down a request for en banc hearing in a case where the panel (O'Scannlain, N. Smith and Wolle, D.J.) upheld the police sneaking onto a driveway in the dead of night and placing a GPS tracking device on the car. The panel held this was not a violation of curtilage. Kozinski attacks this reasoning, and in sweeping language accuses the 9th (his brethren) of having "previously decimating the protections of the Fourth Amendment" in regards to the home, this decision "dismantles" the protections of the curtilage. Kozinski is at his most biting attacking the specious reasoning of the panel, and its examples. Kozinski makes the special point that the judges are elitist:

There's been much talk about diversity on the bench, but there's one kind of diversity that doesn't exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from a class of people who don't live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to the hearts and minds because that's not how we and our friends live. Yet poor people are entitled to privacy even if they can't afford all the gadgets of the wealthy for ensuring it. Whatever else one may say about Pineda-Moreno, it's perfectly clear that he did not
expect--and certainly did not consent -- to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does.

When you glide your BMW into your underground garage or behind an electric gate, you don't need to worry that somebody might attach a tracking devise to it while you sleep. But the Constitution doesn't prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel's breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.

Pp. 11508-509. (As for concerns about how the "everyday people who live in poverty" are not "close to the hearts and minds" of judges, because this is not how "we and our friends live," perhaps this should be a call or more public defenders being appointed to the bench).

In his separate dissent, Reinhardt writes an epitaph for the Fourth Amendment, and the nails in the coffin that are the recent decisions of the judiciary.

U.S. vs. Rivera-Corona, No. 08-30286 (8-18-10) (Berzon with Tashima; concurrence by Fisher). Defendant has retained counsel. The retainer is depleted, and now the defendant wishes to change counsel -- and asks the court to appoint counsel. What is the standard? This issue is a recurring one, and yet there is sparse precedent on it. That changes with this opinion. Here, the defendant retained counsel on a firearms charge. He pled guilty, but as sentencing approached, told the court that he wanted an appointed lawyer. He complained that the retained counsel demanded $5,000 more to go to trial, and that the defendant had pled guilty because of the counsel's pressure. The district court did not inquire into the defendant's financial state and denied the request. The court reasoned that it was at a late stage, and the defendant had said that he was satisfied with counsel at the change of plea. On appeal, the 9th identified two Constitutional rights under the Sixth Amendment: the right to have counsel and the right to effective counsel. The right to retain counsel is close to absolute (counsel must be a lawyer and timing). Did the request for appointed counsel constitute such an election? The 9th thought so, rejecting a "good cause" requirement. The court should only inquire into the financial status of the defendant, whether he qualifies for appointed counsel, and timeliness. There is no need to inquire into whether there was such conflict between counsel and defendant that effective representation required new appointed counsel. The 9th reasoned that forcing an unpaid lawyer, who did not want to be on the case, could lead to conscious or subconscious resentment and undermine representation. This standard is reached by the 9th looking at the two decisions dealing with this issue, Bland and Schell, although in the context of habeas. The 9th parsed Schell's en banc overruling of Bland as going to the standard of review on habeas for substitution of counsel, leaving in force Bland's holding that the choice to go from retained to appointed was not under a "good cause" standard. The 9th vacated and remanded for inquiry into qualification for appointed counsel and for fact-finding if the defendant moved to withdraw from the plea. Concurring, Fisher argued that the 9th was not writing on a clean slate, but rather was bound by Schell, and its holding for a finding of "good cause." It was a Schell game to distinguish Bland. Schell went en banc to overturn Bland, and it could not be limited to "only in habeas." Fisher concurs because the district court failed to fully inquire into the need for new counsel and the conflict.

This is a significant case for retained counsel and CJA appointments. Retained counsel sometimes deplete the retainer, and the whole issue of whether CJA can and should be appointed is raised. This opinion seems to make clear that the court only should inquire into the financial status of the defendant, whether the status qualifies for appointed counsel, and the timeliness. The court cannot require a conflict or issues with representation.

U.S. v. Alvarez, No. 08-50345 (8-17-10) (M. Smith with T. Nelson; dissent by Bybee). This is a fascinating opinion. The 9th holds unconstitutional as violating the First Amendment the statute, 18 U.S.C. 704, that criminalizes falsely claiming one has won the Medal of Honor. The defendant here was a liar. He ran for a water board commissioner seat and said that he was a Marine, that he served in Vietnam, and that he had won the Medal of Honor. All false. He also claimed at various times that he had been a police officer, played for the Detroit Red Wings, and married a Mexican starlet. Again, all false. He was a through-and-through liar. Lying is bad, acknowledged the 9th, but everyone does some lying. Moreover, lying, or satire, or exaggeration, is part and parcel of political debate. Falsehoods are wrong, but in the cut and parry of public issues, things get said. The First Amendment recognizes this. Although certain categories of speech have no First Amendment protection -- this includes libel or defamation -- there has to be a cognizable harm or injury. There is no harm or injury here tied to the lie. The medal winners are admired (indeed, the majority cites to the dissent in Hinson which concerns the lie of a government witness that he had won medals). The statement went to the speaker, and opened him up for ridicule and attack, as indeed happened. There is also no specific finding of intent attached to the statute, which could lead to overbroad prosecutions. The marketplace of ideas have many vendors, hawking many strange notions, and falsehoods may be in the pitch. That is one price the First Amendment allows to be protected. To criminalize this falsity would run the risk of silencing speech (The Colbert Report, for example) without a direct cognizable harm. This opoinion is a nice overview of the interplay between speech and criminal statutes.

In dissent, Bybee argues that the parade of horribles is hypothetical. The intentional statement can be tied to the intent to deceive, and that the libel laws and precedents are well attuned to this and can be used here.

Congratulations to AFPD Jonathan Libby of the FPD C.D. Calif. (Los Angeles).

U.S. v. Dotson, No. 09-30149 (8-17-10) (Tashima with Fisher and Berzon). This is an interesting Assimilative Crimes Act (ACA) case. The ACA is designed to fill in gaps in the federal criminal code under 18 U.S.C. 13. It uses state law to criminalize acts within federal enclaves. However, for ACA to apply, Congress cannot have enacted a statute or dealt with the acts that are the subject of the state code; and the state code must be criminal and not regulatory. Here, defendants served underage servicemen alcohol on an Air Force base in the state of Washington. The state code makes it a gross misdemeanor for such under-age serving. On appeal, the defendant argued that Congress had stepped into this area, giving to the Secretary of Defense the power to regulate alcohol use on the base. The 9th found that this was a general authorization but not a specific statute or law dealing with underage serving of alcohol. The defendant also argued that the underage serving was a regulation, because the state code was in regulation of alcohol. Again, the 9th didn't buy this, holding that criminal statutes could be in regulatory schemes. The 9th also did not find that the possible disparity between servicemen drinking (under DoD regs) and state law was the harm meant to be addressed by the ACA, but rather the acts of the defendant on or outside the federal enclave. The opinion provides a thorough discussion of the ACA framework, tests, and purpose.

Case o' The Week: Azalea Micturition - GPS Tracking, Pineda-Moreno

"This is precisely the wrong time for a court covering one-fifth of the country's population to say that the Fourth Amendment has no role to play in mediating the voracious appetites of law enforcement." United States v. Pineda-Moreno, 2010 WL 3169573 (9th Cir. Aug. 12, 2010) (Ord.) (Kozinski, C.J., dissenting from ord. denying rehearing en banc), decision available here.

Players: Hard-fought petition for rehearing by Oregon CJA counsel Harrison Latto. Dissent from denial of rehearing en banc by Chief Judge Kozinski, and Judges Reinhardt, Wardlaw, Paez, and Berzon.

Facts: “The facts are disturbingly simple. Police snuck onto Pineda-Moreno’s property in the dead of night and attached a GPS tracking device to the underside of his car. The device continuously recorded the car’s location, allowing police to monitor all of Pineda-Moreno’s movements without the need for visual surveillance. The [three-judge] panel holds that none of this implicates the Fourth Amendment, even though the government concedes that the car was in the curtilage of Pineda-Moreno’s home at the time the police attached the tracking device.” Id. at *1 (Kozinski, C.J., dissenting).

Issue(s): Petition for rehearing en banc.

Held: “[T]he matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. The petition for rehearing en banc is DENIED.” Id. at *1.

Of Note: Chief Judge Kozinski begins his dissent with a bang: “The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it’s here at last.” Id. at *1. As is often the case (particularly of late) the CJ’s dissenting opinion is worth a read – both because he’s right, and also because of his love of expressive language. For example, the panel had upheld the action of the cops, explaining that they did nothing in the private driveway of the defendant’s home that neighborhood kids don’t do. To put it mildly, our Chief was unpersuaded. “[T]here’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people’s curtilage. ” Id. at *3 (Kozinski, C.J., dissenting).

How to Use: While the curtilage issue is troubling, it is the GPS holding in Pineda-Moreno that will hopefully wake the Supremes. Chief Judge Kozinski dismisses the panel’s “breezy” opinion and acknowledges the new Circuit split represented by Maynard. Id. at *4; see also id. at *6. As he warns, “In determining whether the tracking devices used in Pineda-Moreno’s case violate the Fourth Amendment’s guarantee of personal privacy, we may not shut our eyes to the fact that they are just advance ripples to a tidal wave of technological assaults on our privacy.” Id. at *5.

A good time to repeat some advice from last week’s memo on the great Maynard decision – preserve GPS challenges despite Pineda-Moreno. See blogs here (discussing Maynard and Ninth Circuit decisions bearing upon GPS surveillance) Pineda-Moreno deserves Supreme Court review, and the D.C. Circuit’s very recent decision on Maynard makes a much better argument for constitutional limitations on GPS tracking. (A head’s-up to the Stanford and Georgetown Supreme Court clinics, Sidley Austin’s pro bono Supreme Court Program, the Electronic Frontier Foundation, and the ACLU: Pineda-Moreno’s attorney Harrison Latto is in a fighting mood and is hungry for some amicus help).

For Further Reading: Chief Judge Kozinski ends his dissent with a parade of horribles, as he describes the government’s potential warrantless surveillance of citizens: tracking Winston and Julia near a hotel, surveilling Syme near a STD clinic, hunting-down Jones, Aaronson, and Rutherford at a political protest. Id. at *6. He also predicts that, “[s]ome day soon, we may wake up and find we’re living in Oceania.” Id. at *7. Remember those references, from your high school literature class?

Makes for a nice theme running throughout a powerful and persuasive dissent. Sadly, however, his literate references don’t feel like hyperbole.




Image of Big Brother from http://mstong.files.wordpress.com/2009/05/1984.jpg. Image of azeleas from http://www.flowerpictures1.com/r-azalea-18-azaleas-shrub-deciduous-255.htm


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


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U.S. v. Pineda-Duval, No. 08-10240 (8-10-10) (B. Fletcher with Canby and Graber). This is an appeal from a 10-count alien smuggling conviction in which death resulted due to a roll-over. The district court refused a causation jury instruction, which would let the defendant argue that he had not proximately caused the deaths but rather the border patrol did in its negligent employment of the spike strips used to stop the car, resulting in its roll-over. The defendant also argued various other evidentiary rulings. The court also brushed aside defendant's argument at sentencing that he had not acted with malice aforethought (indifference to life) because he had done this before and he thought it would be safe. The 9th found error in the court's preclusion of evidence, stressing that causation (proximate cause) has long been required. The only exception really is in drug trafficking offenses, as seen in Houston, 406 F.3d 1121 (9th Cir. 2005) (Tallman decision), but that is cabined for that class of offenses. Alas, although there is error, the 9th found it harmless under the circumstances and with the weight of evidence. The 9th also found error, albeit harmless, in the court's preclusion of evidence as to the training manuals of the Border Patrol. The 9th did vacate the sentence (life) and remanded for a new sentencing on the issue of whether there was clear and convincing evidence of the defendant acting with malice aforethought. The court failed to make clear findings as to the degree of recklessness was involved and used the wrong evidentiary standard. The 9th implied that the degree of recklessness did not meet the malice aforethought/reckless indifference standard.

Congratulations to AFPD Dan Kaplan (Phoenix) and AFPD Richard Juarez (Yuma) for the win.

U.S. v. Wahid, No. 09-50036 (8-10-10) (Fogel, D.J., with Silverman and Thomas). The defendant pled guilty to various fraud, wire fraud, theft, and identity theft counts. His appeal challenges the sentence, arguing that the district court erred in not realizing that it could depart on a guideline sentence for non-predicate felonies separate from the aggravated identity theft -- in other words, the court could depart for the guideline sentence on mail fraud. The 9th affirms the sentence. Under plain error review, the 9th held that the district court recognized it had discretion in sentencing; and that the court had not erred in its criminal history calculations.

Case o' The Week: Tracking the Fourth Amendment - DC's Maynard and GPS Tracking

We've bemoaned the irony before: the Ninth Circuit is home to the world's most-innovative technology pioneers, yet often trails the nation in its Fourth Amendment jurisprudence on electronic surveillance. A slow week for cases in the Ninth lets us turn East to illustrate the point.

In Maynard, the D.C. Circuit this week delivered the gold standard for Fourth Amendment analysis of GPS tracking. United States v. Maynard, __ F.3d __, No. 08-3030 (D.C. Cir. Aug. 5, 2010), decision available here. The Maynard opinion politely rejects the (less-compelling) analysis of the Ninth's own recent Pinedo-Moreno decision, and presages a Supreme Court battle on GPS tracking.

Players: Big win for, among others, the Bay Area’s own Electronic Frontier Foundation (EFF).

Facts: Co-D Jones was convicted for his role in a cocaine conspiracy. Slip. Op. at 3. The Feds’ investigation of the case had included warrantless, 24-hour, GPS surveillance of Jones's jeep. Id. at 16.

Issue(s): “Jones argues his conviction should be overturned because the police violated the Fourth Amendment prohibition of ‘unreasonable searches’ by tracking his movements 24 hours a day for four weeks with a GPS device they had installed on his Jeep without a valid warrant.” Slip Op. at 16.

Held: “Jones argues the use of the GPS device violated his ‘reasonable expectation of privacy,’ Katz, . . . and was therefore a search subject to the reasonableness requirement of the Fourth Amendment. Of course, the Government agrees the Katz test applies here, but it argues we need not consider whether Jones’s expectation of privacy was reasonable because that question was answered in United States v. Knotts, 460 U.S. 276 (1983), in which the Supreme Court held the use of a beeper device to aid in tracking a suspect to his drug lab was not a search. As explained below, we hold Knotts does not govern this case and the police action was a search because it defeated Jones’s reasonable expectation of privacy.” Id. at 16 (Katz full cite omitted).

Of Note: With Maynard the DC Circuit splits with the Ninth on warrantless GPS searches. See United States v. Pinedo-Moreno, 591 F.3d 1212 (9th Cir. 2010); see also blog here.

The DC Circuit has the much better argument. As the Maynard decision trenchantly observes, the Ninth’s decision failed to distinguish between short- and long-term surveillance, and did not wrestle with the core holding of the controlling Supreme Court decision in Knotts. Maynard, Slip. Op. at 20.

In light of the novel issue and circuit split, look for the Supremes to take up the issue soon (and, hopefully, adopt Maynard’s better analysis and result). Preserve GPS challenges in the Ninth; Pinedo-Moreno will hopefully join the Circuit’s list of Supreme Court reversals.

How to Use: There are two key, and persuasive, theses in Maynard that are invaluable for Fourth Amendment challenges to the abuse of technological surveillance. First, the Court explains that a “reasonable explanation of privacy” doesn’t ask what a private citizen could do to survey another, but rather “what a reasonable person expects another might actually do.” Id. at 23 (emphasis added). In Maynard, a stranger could have theoretically tracked Jones’s movements over a course of month – but the “likelihood a stranger would observe all those movements is not just remote, it is essentially nil.” Id. at 26 (emphasis added).

Next, the Court emphasizes that the whole of the lengthy surveillance is a greater infringement than the sum of its parts. Id. at 27. In Maynard, that meant that “[p]rolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.” Id. at 29.

Those two insights apply with equal force to other novel technological surveillance – like obtaining cell-phone location data without a search warrant. Mine Maynard for these practical insights and export them to other Fourth Amendment challenges.

For Further Reading: GPS tracking is such a quaint technology: frankly, why bother, anymore? Much easier to get the suspect’s cell-phone location through its ping to the nearest cell tower, and track ‘em that way.

The Feds are now getting cell-phone location data with a staggering number of sealed applications in federal court, under a novel “hybrid” showing of suspicion far lower than probable cause. Are you troubled by the idea that the Feds are secretly tracking your movements via your phone, with very little judicial oversight? Bothered by the idea that the defense never even knows that this surveillance took place?

So is Magistrate Judge Stephen Wm. Smith (S.D. Tx).

Read Judge Smith's testimony before Congress here. His testimony is easily the most accessible, cogent, and persuasive summary of the hydra of statutes that bear on cell-phone tracking: a must-read for anyone wading into this important morass.


Image of the a world SMS tracking device from http://vehicle-tracking-usa.com/store/worldtracker-sms-gps-vehicle-tracking-system,Product.asp . Image of the "Electronic Surveillance Courthouse" from the Magistrate Judge Smith's testimony at http://judiciary.house.gov/hearings/pdf/Smith100624.pdf .


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

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U.S. v. Monday, No. 08-50206 (8-2-10) (Canby with Wardlaw and Callahan). The defense in this postal mail theft case was that the mail carrier had a grudge with management; no one would talk to him; and so he used the planted mail (birthday card with $40) to send a message. He took the $40 and used a portion to buy some snacks, aware that it was a plant, so he would be talked to. He was. It was a prosecution. On appeal, he argues that the statute, 18 U.S.C. 1709, requires specific intent to permanently deprive the owner of the property, and he should have gotten a specific intent instruction. The defendant points to precedent discussing the predecessor statute of 1915, the doctrine of noscitur a socilis (unilluminating legislative history), consistency with the statute's title, and the rule of lenity. The 9th, however, starts and stops with what it terms the plain language of the statute, which requires only removal, and with the general intent against opening mail. The 9th also aligns with two other circuits that decided the issue. So the postman may specifically ring twice; but generally steals once.

Cheney v. Washington, No. 08-35204 (8-2-10) (Ikuta with Kleinfeld and Bea). What is more deferential than AEDPA review of state decisions? Review of state court IAC claims under AEDPA, which has a "double deference" standard (cf. double secret probation). In this case, a petitioner argues that in a state child sexual assault case, his lawyer should have objected when the prosecutor, examining an officer, elicited that referrals are made only if they are felt to be true. The lawyer let that slip, but did object to prosecutor vouching in closing argument. The 9th sets out the "double deference" standard from the Supremes in Knowles v. Mirzayance, 129 S.Ct. 1411 (2009). The petitioner tries to argue unreasonable application of precedent, but the 9th looks at the deference of the decision under AEDPA and the general principles of Strickland (violate standards and prejudice), and concludes that the state courts decisions as to IAC were not objectively unreasonable under AEDPA and under the application of Strickland and so did not involve an unreasonable application of clearly established federal law.

Case o' The Week: Third Time Lucky - Forrester, Conspiracies and Sentencing

If at first you don't succeed, try, try again.

And again. United States v. Forrester (III), No. 09-50029, __ F.3d __, (9th Cir. July 30, 2010) (Ord. & amend. op.), decision available here.

Players: Nice win rewards dogged litigation for former San Diego AFPD Ben Coleman (now of Coleman & Balogh, LLP).

Facts: This is the third published opinion on the Forrester case. Forrester I gave us some bad Fourth Amendment law on searches of IP addresses. See blog here. Forrester II gave us some bad law on wiretaps. See blog here. This latest decision is a revision of Forrester II, and gives us some good law on conspiracies.

Forrester was involved with a big ecstasy lab and represented himself in a federal trial. Slip Op. at 10920. He was misinformed of the stat max by the district judge during the Faretta hearing. Id. On his first round in the district court, he was sentenced to thirty years after being convicted at trial. Id. at 10921.

In Forrester I, the Ninth found that the defendant had not knowingly waived his right to counsel because of this mis-advisement; the case was remanded and Forrester entered a conditional guilty plea. Id.

At resentencing, a temporary amendment to USSG § 2D1.1 created a dramatically higher ecstasy base offense level. Id. at 10942. Forrester argued against this higher sentence based on a conspiracy end date that was not admitted in the plea agreement. Id. The district court rejected this argument, and gave him thirty again. Id. at 10921.

Forrester appealed again. Judge Milan Smith issued an opinion on January 5, 2010 (Forrester II); on July 30 the panel withdrew that opinion and issued a new one (Forrester III). Forrester III is the subject of this blog entry.

Issue(s): (Among many): “Forrester argues that subjecting him to a heightened sentence based on a conspiracy end date that was alleged in the indictment but not admitted in the plea agreement was improper.” Id. at 10942.

“Because the end date of the conspiracy was not pled to or found by a jury, this case presents a novel issue for this court: whether the end date of a conspiracy can be treated as relevant conduct, which in turn will determine which Guidelines version applies.” Id. at 10943-94.

Held: “We agree [with Forrester].” Id. at 10942. “[B]ecause the Guidelines clearly, if not explicitly, indicate that the end date of an offense is in a category of its own for ex post facto purposes, which seems to preclude treating the end date as relevant conduct, U.S.S.G. § 1B1.11 n.2, and certainly precludes using relevant conduct to determine which Guidelines to apply, id., we remand to the district court for resentencing under the November 2000 Guidelines.” Id. at 10946 (emphasis in original).

Of Note: Forrester is a sentencing wonk’s dream, wrestling with fine distinctions between elements, relevant conduct, and ex post facto concerns. Id. at 10943-44. This esoteric fight has a very real impact, though: this win over the guidelines’ version means a difference of five to fifteen years in prison. Id. at 10946 n.12. Moreover, it is not an infrequent issue. The Sentencing Commission (almost always) ratchets up, and it is a frequent fight in conspiracy cases on whether to use older, less-harsh guidelines.

Consider, for example, a conspiracy to commit mail fraud and the pre-2002 § 2F1.1 (fraud) guideline, which had some better loss calculations for the defense. The Forrester rule on the "end date of the conspiracy" could make a big difference in that setting. Similarly, as steroid guidelines get “pumped up,” we may be looking to Forrester to hook back to better calculations in the halcyon pre-BALCO days.

How to Use: Tucked away in a Forrester footnote is a handy quote for Guideline fights: “To the extent there is any ambiguity as to whether the end date can be used to justify the application of a harsher Guidelines version, we must tend toward a resolution that protects the defendant’s established constitutional rights. Cf. United States v. Santos, 128 S. Ct. 2020, 2025 (2008) (‘The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.’)” Id. at 10946 n.12.

For Further Reading: For a thoughtful and critical analysis of Forrester I and its disappointing Fourth Amendment analysis, see Schuyler Sorosky, United States v. Forrester: An Unwarranted Narrowing of the Fourth Amendment, available here.



Image of "Third Time's a Charm" Tattoo from http://cinematicroom.com/asin/B000TGKXFW/


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