U.S. v. Webster, No. 09-30173 (9-30-10) (Thompson with Hall and McKeown). The 9th affirms convictions on drug, conspiracy, money laundering, and fraud counts. Numerous grounds were raised, the two most interesting dealing with money laundering instructions regarding profits and business record hearsay. The money laundering instruction failed to define "proceeds" as "profits" as arguably required under the Court's decision in Santos. However, since this offense was not a commercial undertaking, but a drug conspiracy, and where a money laundering count is based on transfers among co-conspirators of money from drug sales, "proceeds" includes all receipts, and not the narrower definition of profits. Turning to evidence, a Western Union check transfer was admitted into evidence under the business record rule. The defendant objected to the name on the transfer. It was to a co-conspirator. Because it was a co-conspirator, it can still come in as an admission of a party opponent.

U.S. v. Sipal, No. 08-10300 (9-30-10) (Hug with Bea and Edmunds, D.J.). In 2005, the defendant was sentenced for possession of crack and being a felon in possession. With 23 criminal history points, he was facing a range of 210 to 262 months. However, the sentencing was under Booker. As such, the court took into account the defendant's low IQ and small amount of crack (18 grams) and imposed a sentence of 144 months (concurrent with a 120-month sentence for the felon-in-possession charge). Subsequently, the Sentencing Commission retroactively amended the crack cocaine guidelines. The defendant then sought further reduction of his sentence under 18 U.S.C. § 3582(c)(2). The district court concluded that it did not have jurisdiction to reduce the sentence under § 3582(c)(2) because the sentence resulted from a discretionary application of the § 3553(a) factors and not a departure from the Guidelines range. The 9th remanded for further proceedings because the district court did not determine whether reducing the sentence would be consistent with the policy statements issued by the Commission -- particularly U.S.S.G. § 1B1.10(b)(2)(B), which says that for sentences imposed after applying the statutory sentencing factors, a "further reduction generally would not be appropriate." However, because "[b]y stating that the policy statement is 'generally' not applicable this leaves discretion with the district judge to determine its applicability." It left open the question whether the defendant's sentence was "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." See United States v. Leniear, 574 F.3d 668, 673 (9th Cir. 2009). The district court has to determine on remand whether it now has discretion and then proceed to whether it wishes to exercise it.

Search And Seizure Update

Once more we have updated our outline entitled Developments In Federal Search And Seizure Law, which is available here. This document provides a general starting point for suppression motions with an emphasis on counterpoints: cases that favor an expansive view of Fourth Amendment protections. We recommend that defenders using this resource save it as a favorite, then access specific information either through the table of contents or by searching the document (using the find function on the pdf) for case titles or key words. The updated outline has added recent cases on areas including curtilage, probable cause, exclusionary rule, and electronic searches. If you have a favorite case you think should be included, please feel free to pass it along for inclusion in the next update.

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

U.S. v. Ruiz-Gaxiola, No. 08-10378 (9-24-10) (Reinhardt with Kozinski and Timlin, D.J.). This is a Sell involuntary medication issue. (Note: this case is from the FPD Ariz. office). The conclusion summarizes the legal standard best:

Ruiz suffers from a mental disorder that is extremely rare and difficult to treat. The government proposes to administer antipsychotic medication involuntarily to Ruiz in order to further its interest in prosecuting him for a serious criminal offense by rendering him competent to stand trial. Ruiz, however, like all others, "possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment." Harper, 494 U.S. at 221-22. The Supreme Court has resolved the conflicting interests by establishing "rare" circumstances under which the government will be permitted to administer antipsychotic drugs involuntarily. In Sell, 539 U.S. at 180, it set forth the four conditions that the government must satisfy in order to obtain an order authorizing it to involuntarily medicate a non-dangerous criminal defendant. A failure to meet any of the four is fatal to the government's request.

Under Sell, an involuntary medication order by the district court cannot be issued unless the government proves 1) "that important governmental interests are at stake"; 2) "that involuntary medication will significantly further those concomitant state interests"; 3) "that involuntary medication is necessary to further those interests": and 4) "that administration of the drugs is medically appropriate." Id. at 180-81. The government has the burden of establishing the facts necessary to allow it to prevail on its request by clear and convincing evidence. Here, the government fell far short of meeting its burden with respect to at least two of the Sell factors.

at 16314 -15. The 9th held that the government experts from Butner were sloppy, misinformed, and made misstatements as to how to treat the defendant's delusions. The defense witness, by contrast, was knowledgeable and convincing. The magistrate court and district court erred in finding that medication would further government interests because it is not really known how to treat these delusion, and that medication would actually work. Lastly, there would be long term effects on the defendant. As a result, the Sell order is reversed.

This case is a good overview of the Sell issue, and the standards involved.

Congratulations to AFPDs Deirdre Mokos and Saul Huerta of the FPD District of Arizona (Tucson) for the win. Don't ever "Sell" them short.

U.S. v. Briggs, No. 09-30108 (9-27-10) (Tashima with Fisher and Berzon). The defendant was caught up in plans to rob stash houses. Unfortunately for him, the "masterminds" were ATF operatives. The defendant was charged with drug, gun, conspiracy, and escape counts. He pled, and then, six months later, with new counsel, said he wanted to withdraw his guilty plea. The district court said "no" and he got 320 months. On appeal, the 9th also said "no," to the withdrawl but vacated the sentencing and remanded. The 9th looked at the purported reasons for withdraw, such as failure to understand the sentence possibilities, or even the guilty plea. He had an IQ of 70. The colloquy, however, demonstrates that he had the capacity, and was aware of what he could face. The fact that the range was double what he expected is not a reason to say the district court abused its discretion. Defendant also set forth no evidence of sentencing entrapment. The district court did err in giving the firearm adjustment because the defendant did not possess a weapon; he planned on using one in the robbery but it never came to that.

Martinez v. Schriro, No. 09-15170 (9-27-10) (Wallace with Hug and Clifton). The 9th reaffirms that there is no right to counsel in collateral proceedings. Although the first tier of post-conviction is the time to raise IAC claims, this does not mean that counsel is required. Petitioner argued that he should not be barred from successor petition because his PCR counsel was ineffective and did not raise his IAC claims from his trial and appeal. Different purposes are served between trial and direct appeal and post-conviction. Moreover, the state court (Arizona) had a reasonable basis to deny the claim.

U.S. v. Mayweather, No. 08-50449 (9-27-10) (Block, Sr. D.J., with O'Scannlain and Tallman). Defendant plead guilty to a firearm count. He argued that he should have been allowed to withdraw his plea. The defendant said he told his counsel he wanted to litigate his case and the suppression issue, but that his counsel said he was unprepared for trial, and so forced him to take this plea. Counsel said that he told defendant about the plea, discussed the suppression issue, and that the defendant entered the plea with his eyes wide open (drug charges were dropped). The 9th affirms the district court's denial of the motion to withdraw. This case differs from McTiernan, 546 F.3d 1160 (9th Cir. 2008), where the 9th allowed a withdrawal because counsel never told defendant about a suppression issue, and counsel never investigated or pursued it. Here, though, defendant was aware of the suppression issue as shown in the plea colloquy, where he said that he was not pleading guilty because of any illegally obtained evidence. He knew the issue, and was silent at the colloquy. McTiernan required an evidentiary hearing to see if the facts were known to defendant; here there were, and he still entered into the plea.

U.S. v. Isaac Ramos, No. 09-50059 (9-24-10) (Wardlaw with Reinhardt and Trott). File under "win the battle, lose the war." The defendant, facing a 1326 charge, collaterally attacked the prior deportation order. He argued that DHS and the IJ violated this due process rights and violated their own applicable regulations in removing him through the stipulated removal program under 8 U.S.C. 1229a(d), 8 CFR 1003.25(b). The 9th agreed that there were violations. First, the waiver of appeal was invalid because it was not knowing or voluntary. The defendant did not have counsel; it was not explained; and he may not have understood the language. Second, the stipulated removal hearings violated his due process right to counsel under the Fifth Amendment by requiring him to waive it. His waiver, moreover, was not valid. The 9th also found that the IJ violated the agency regulations by failing to insure the waiver to a removal hearing was voluntary, knowing, and intelligent. Yet, with all these violations, the 9th finds there was no prejudice because the defendant had no right to relief. The waivers may all have violated regulations and constitutional safeguards, but at the end of the day, he would not be allowed to say. Thus, the district court's denial of the motion to dismiss the indictment was affirmed. Still, a good case to see how stipulated removals are done, and the lax procedures and process in the IJ courts.

Norris v. Morgan, No. 08-35645 (9-23-10) (Berzon with Fisher and Snow, D.J.). The 9th rejects a challenge to the State of Washington's life imprisonment sentence for a two-strike sex offender. The petitioner suffered a second conviction for child molestation and received life imprisonment. His challenge was that the sentence was grossly disproportionate. The 9th said it was a close call, but the present confused Eighth Amendment jurisprudence, and given the facts and issues at stake, the state court's decision denying the challenge was not unreasonable.

Rossum v. Patrick, No. 09-55666 (9-23-10) (Gertner, D.J., with Nelson and Reinhardt). The 9th remands for an evidentiary hearing on an IAC claim. The facts are enough to, shall we say, raise the dead. The petitioner was convicted of killing her husband by poison. The poison was fentanyl, which is a synthetic opiate. The motive: she worked in the San Diego Medical Examiner's Office and was having an affair with a co-worker. The evidence was circumstantial, but the odd fact was that the amount of poison was so high that it was impossible for the victim to have lived for several hours, yet, the forensic evidence was that he did. Indeed, he had complained, supposedly, of feeling ill earlier on the day of his demise, and he was taking other medication that, acting together, could have caused his death. So does that mean that the fentanyl could have been planted? Possibly. The affair was an open secret, and the autopsy samples were left unsecured for 36 hours before the medical examiner's office had sent it out to another lab (afraid of a conflict of interest). Someone could have contaminated the samples for a variety of reasons. The one way to know for sure is to test the samples for metabolites. Such a test would determine if the poison was in the system or planted. Counsel, however, failed to ask for such a test, even though it was really the only defense in the case (she was convicted and given a LWOP sentence). As such, this was a Strickland violation. The 9th orders an evidentiary hearing on the IAC claim, and orders the district court to allow testing of the samples and of testing for blood on the victim's clothes, which the petitioner said was not hers.

Case o' The Week: Ninth Doesn't Buy Government's Hard Sell -- Involuntary medication to restore comptency, Ruiz-Gaxiola

This week Judge Reinhardt writes, and CJ Kozinski joins, a great decision on Sell involuntary medication to restore competency. United States v. Ruiz-Gaxiola, Slip Op. 16275 (9th Cir. Sept. 24, 2010), decision available here.

Players: Important victory by D. Az. AFPDs Deirdre Mokos and Saul Huerta, Jr.. Decision by Judge Reinhardt, joined by Chief Judge Kozinski (both pictured above right) and Senior District Judge Robert J. Timlin.

Facts: Ruiz-Gaxiola was charged with illegal reentry, and was diagnosed with delusional disorder, grandiose type, and found incompetent to stand trial. Id. at 16280. The BOP failed in its Harper hearing to show that he was a danger to himself or the community, so the government sought involuntary medication under Sell to restore the defendant to competency. Id. at 16280-81 (quoting Sell v. United States, 539 166, 180-81 (2003).

Expert shrinks testified for the government and the defense; the magistrate and the district court found the government had met its burden by clear and convincing evidence and ordered involuntary medication. Id. at 16281. Ruiz filed an interlocutory appeal and obtained an emergency stay. Id.

Issue(s): “The government is allowed to medicate a defendant involuntarily for the purpose of rendering him competent to stand trial only in rare circumstances. The question is whether this case presents those rare circumstances.” Id. at 16280.

Held: “Our answer is that it does not.” Id. “We conclude that the district court erred in finding that the Sell factors were met without affording the question the thorough consideration and justification and especially careful scrutiny required . . .

Further, we hold that the district court clearly erred in finding that the government proved by clear and convincing evidence that the proposed regime of involuntary medication is substantially likely to restore Ruiz to competency, as required by the second Sell factor.

We also conclude that the district court clearly erred in finding that the government proved by clear and convincing evidence that the proposed treatment is medically appropriate, as required under the fourth Sell factor.” Id. at 16281 (internal quotations and citations omitted).

Of Note: Judge Reinhardt creates a new rule in this decision, and the Ninth joins five other circuits to require clear and convincing evidence as the government’s burden of proof to satisfy the Sell factors. Id. at 16289.

A second, new (albeit implicit) rule is that a lower court must make and articulate specific factual findings to support its conclusion that a Sell factor has been proven: “There is a compelling need in cases such as this for the district court to make factual findings so that the defendant may be assured that the trial court has conducted the stringent review mandated in light of the substantial infringement on his liberty interests, and so that upon review the appellate court may determine whether the findings are supported by clear and convincing evidence.” Id. at 16295.

Ruiz-Gaxiola is a lengthy, detailed, and sensitive treatment of the often barbaric practice of involuntary medication to restore competency to face trial – the opinion should be featured prominently in any defense opposition to a Sell motion.

How to Use: Two players in this Sell litigation did not fare well in Judge Reinhardt’s detailed opinion: FMC Butner (a BOP medical facility tasked with, among other things, restoring defendants to competency), and Butner psychiatrist Dr. Mark Cheltenham. Id. at 16284. Ruiz-Gaxiola is a published decision that is now ready-made impeachment for both actors. Butner shrinks are often repeat witnesses in national federal cases: if Dr. Cheltenham appears as a witness in your Sell matter, it’s worth chasing down the transcripts from the Ruiz-Gaxiola Sell hearing.

For Further Reading: C.D. Cal Senior District Judge Robert Timlin visited and joined this panel with Chief Judge Kozinski and Judge Reinhardt. Id. at 16275. What is that like, to be a visiting DJ in conference with a pair of legendary Ninth friends/foes who have been embracing and battling for decades? See article here. Maybe it's like visiting grandparents who are very fond of each other, yet bicker constantly? See blog here, discussing colorful dissent by Chief Judge Kozinski in United States v. Cruz, 554 F.3d 840 (9th Cir. 2009), majority decision written by Judge Reinhardt.

(Note, however, that Judge Timlin has been a federal judge since 1971, and a district judge since ‘94: he undoubtably held his own. See post here.


Image of the Honorable Chief Judge Alex Kozinski and Judge Stephen Reinhardt from http://alex.kozinski.com/ak-sr-photo.jpg


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

Towery v. Schriro, No. 08-99022 (9-22-10) (Fisher with Schroeder and N. Smith). A witness heard the petitioner say something to the effect that "he had trouble with the old man and had to hit him." Petitioner faced two trials: a preceding robbery and a subsequent robbery gone bad with murder. Petitioner raised alibi for the murder. The prosecutor used this statement in two different trials. In the preceding robbery trial (different from the capital murder and felony murder robbery), the prosecutor used the witness's recollection in testimony to convict on that robbery. Then, several months later, at the second trial, upon reflection (!), the prosecutor said he really thought that the statement refered to the murder, felony murder and the subsequent robbery, and so had the witness testify about what he heard. The petitioner was convicted and sentenced to death. Oh yes, the same trial judge heard both trials and both statements. The Arizona Supreme Court assumed misconduct, at the very least, for not telling the court. The supreme court, however, found it harmless. The defense lawyer had crossed on the statement and attacked it for refering to another robbery. The 9th goes along because the misconduct and its variations (contradictory testimony, false testimony, Brady, fraud to court, due process) still did not deprive petitioner of a fair trial, and the state court's decisions were not unreasonable.

U.S. v. Begay, No. 09-10249 (9-20-10) (Bybee with Schroeder and Gonzalez, D.J.). This is a SORNA case. Specifically, whether defendants who moved to the Navajo Indian Reservation still had to register as sex offenders with the State of Arizona. The defendants argue that the legislation made the Navajo Nation responsible, and because it had not yet established a sex offender registry, the defendant was unable to comply. The 9th recognized this as a close question, but chose a reading of the SORNA statute that requires a sex offender to register in each jurisdiction in which he lives, works, and/or goes to school, rather than just the relevant jurisdiction, which would be the tribe. (For disclosure, this case arose from the FPD office in the D. Ariz.).

U.S. v. Morsette, No. 09-30373 (9-20-10) (per curiam with Reinhardt, Graber, and Paez). This concerns the self-defense instruction. The defendant used a baton in a fight in his house. He said that he defending himself from threats from his two drunk friends and family members. The victims said they were not threatening the defendant, but leaving when attacked. The defendant was convicted of simple assault. His appeal goes to whether the district required to give a self-defense instruction which stated that "In the home, the need for self-defense and property defense is most acute." The defendant premised this instruction on Heller and McDonald, the Second Amendment cases, because each stressed defense of home and hearth. The 9th concluded that there was no error. The standard self-defense instruction worked quite well, and was sufficient.

Souliotes v. Evans, No. 08-15943 (McKeown with Hall; Zilly, D.J., partially concurs and partially dissents). The petitioner argues that new scientific evidence of an arson fires proves his innocence. The 9th remands the denial of his petition for a hearing on whether an inmate in the petitioner's position could have reasonably uncovered the new evidence with reasonable or due diligence. The 9th holds though that his other claims were time barred under AEDPA (five days late because of a miscalculation). The 9th holds there was not equitable tolling, simply mere negligence on the part of counsel (!), and that precedent slams shut the any AEDPA innocence gateway. In dissent, Zilly would allow all the claims to proceed if petitioner could show that he meets the Schlup threshold test.

U.S. v. Edwards, No. 08-30055 (9-20-10) (Dissent from denial of en banc, Gould with Bybee, Callahan, and Bea). In this dissent from an en banc to reconsider a white-collar sentencing, Gould et al accuse their brethren from ignoring too lenient sentences in a reasonable review, especially when it comes to white collar crimes. The dissent thinks that white collar offenders get off too easy, and that the whole court should look at the standards for white collar sentences.

U.S. v. Bohn, No. 09-30397 (9-17-10) (Graber with Paez and Burns, D.J.). The pro se defendant came upon two roads, diverging in a wood (in a national wildlife refuge). The one he took did not make a difference, because he was stopped by a National Parks Ranger for riding a motorcycle without a helmet (and things got nasty, in a CFR way, after that). It did not make a difference because, for CFR purposes, the federal government has the power under the Property Clause to enforce 36 CFR 4.2(b) over roads or lands it has only propriety jurisdiction (the county had transfered property interest in the road to the feds). The government owns the road, but does not have exclusive nor concurrent jurisdiction. Nonetheless, because it owns the roads, it can assimilate state laws, such as requiring a helmet if one rides a motorcycle. The 9th also found there was sufficient evidence.

U.S. v. Moreland, No. 05-30541 (Hug with McKeown and W. Fletcher). On remand from the Supremes, the 9th holds that two money-laundering counts must be reversed. He was convicted on numerous fraud counts for a pyramid/Ponzi scheme. Two counts though were money laundering for plowing some profits back into the scheme. The Supremes in Santos held this was not money-laundering, and the 9th on remand agrees in this instance. The 9th remands for resentencing. The 9th, in regards to other issues, upholds the restitution order, and finds that his Faretta pro se representation was proper.

Case o' The Week: One Shy - Search Guidelines Fall in C.D.T.

"[W]hat ever happened to the Fourth Amendment? Was it . . . repealed somehow?" United States v. Comprehensive Drug Testing, Inc., 2010 WL 352947 (9th Cir. Sept. 13, 2010) (Ord. amend. op. and denying rehearing en banc). at *13, order and amended opinion available here.

The other shoe finally drops on Justice's petition for super en banc, and everyone wins, and loses, a little.

Players: Judges Graber (below left), Wardlaw (left), and Berzon (right), who concurred in the original en banc decision’s list of restrictions for computer searches, and then pulled back from those guidelines in response to DOJ’s petition for “super” rehearing en banc.

(Had one of these judges remained with the original majority, the guidelines now moved to the concurrence would have remained the majority opinion).

Facts: The government shopped jurisdictions, dodged limitations in search warrants, and searched thousands of drug urine-test records without a warrant under a dubious “plain view” theory. Id. at *1-*3. Three different district judges ordered the return of property (the records), some accused the government of “manipulation and misrepresentation.” Id. at *2; see more details here.

Over Judge Thomas’s vigorous and persuasive dissent, a Ninth three-judge panel reversed the district courts and upheld the searches.

In August of ‘09, an en banc panel lead by C.J. Kozinski issued a remarkable decision reversing the panel and setting forth guidelines for future computer searches. C.D.T., 2009 WL 2605378 (9th Cir. 2009) (en banc). Rome was unamused; then-Solicitor General Kagan sought “super” rehearing en banc (an unprecedented full-court rehearing). See blog describing petition here.

Issue(s): For all practical purposes, the real issue on the petition for super rehearing en banc was whether the Ninth would stand by the “prophylactic” guidelines for computer searches crafted by Chief Judge Kozinski.

Held: The Ninth blinked.

Judge Kozinski’s guidelines were moved from the majority en banc decision to a separate concurrence, and four judges joined the Chief's concurrence. Id. at *14.

As noted above, three judges withdrew from that part of the original en banc majority opinion, making Judge Kozinski’s guidelines one vote short of a majority decision. (A vestige of this switch is in the majority decision, when C.J. Kozinski refers to “updating” the old Tamura decision – but those updates are now relegated to a concurrence). Id. at *13.

Of Note: The C.D.T. computer-search guidelines – whether in a concurrence or not – are the next Fourth Amendment battlefield, and merit a strong defense from the Defense. Note that the tech-savvy judge who sparked this whole brouhaha, Judge Thomas, wasn’t drawn on this en banc panel. Judges Pregerson and Reinhardt also weren’t on this panel. Different times, and a slightly different panel, may vindicate Judge Kozinski’s approach.

Moreover, the Reluctant Trio – Judges Wardlaw, Berzon, and Graber – never say that these guidelines are wrong. If they were presented with these questions as controlling issues instead of prophylactic guidelines in a future case, they well could back the approach as well.

In sum, the principles controlling computer searches articulated by Chief Judge Kozinski still should be litigated as reasonable limitations on computer searches.

How to Use: While it is disappointing to lose the Kozinski guidelines as law, this still remains a great decision. Here are two gems in particular. First, the majority still endorses this wonderful proposition: “When, as here, the government comes into possession of evidence by circumventing or willfully disregarding limitations in a search warrant, is must not be allowed to benefit from its own wrongdoing by retaining the wrongfully obtained evidence or any fruits thereof. When the district court determines that the government has obtained the evidence through intentional wrongdoing – rather than through a technical or good faith mistake – it should order return of the property without the need for balancing that is applicable in the more ordinary case.” Id. at *10 (emphasis added). This is, albeit, in the context of a Rule 41 return of property, but it is a concept ripe for import into a Fourth Amendment analysis.

Second, the majority prospectively orders the government to disclose previous attempts to obtain evidence when it goes to other jurisdictions for search warrants or subpoenas. Id. at *11. That concept will be of particular use in multi-district investigations, such as big fraud, gang, or wiretap cases.

For Further Reading: For a much more-skeptical view of C.D.T. see Orin Kerr’s collection of posts at the Volokh Conspiracy, available here.


Image of the US Department of Justice from http://commons.wikimedia.org/wiki/File:Usdepartmentofjustice.jpg. Image of Judge Kim Wardlaw from http://law.pepperdine.edu/judicial-clerkship-institute/images/faculty/wardlaw.jpg . Image of Judge Berzon from http://www.thenewspaper.com/rlc/pix/mberzon.jpg . Image of Judge Graber from http://www.id.uscourts.gov/DistConf08/Photos/slidesTrudy%20Fouser%20Judge%20Graber%20&%20Judge%20Dale.html



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

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U.S. v. Waters, No. 08-30222 (9-15-10) (Tashima with Fisher and Berzon). The 9th reverses and remands arson convictions because the trial court let in anarchist literature that was of doubtful relevance and was not balanced under FRE 403. The 9th also reversed on the ground that the court failed to inquire or instruct the jury as to the publicity on the case. This was a prosecution of radical environmentalists who burnt down buildings associated (wrongly) with genetic testing. After much investigation, and dead ends, a cooperator pointed to the defendant. There were problems with the identification and corroboration. The defendant argued that she was not involved, and that she did not agree with the radicals' tactics. She mounted a character defense. A folder of anarchistic writings was introduced as supposedly coming from the defendant, although that was questionable. The 9th wondered about its probative value, whether it could be shown defendant had read them, and the dangers of associating what one reads with the charge. The 9th also found abuse of discretion in the court not allowing in defendant's documentary, made at that time, which advocated peaceful protest. If the trial court let in the anarchist writings, it should have let the video in. The trial court also erred in failing to make adequate inquiries into what the jury may have heard and read when, as the jury began to deliberate, another terrorist arson was being reported amidst great publicity. This case, together with Curtin, marks the 9th as greatly disfavoring the introduction of one's reading materials, demands a high linkage, and requires the court to review each and every page to do a 403 balancing.

U.S. v. Albritton, No. 09-30436 (Thompson with Noonan; dissent by Berzon). This concerns what exactly is "brandishing." The defendant had a BB gun in a bank robbery and pointed it at the teller. He got the "otherwise used" adjustment. The majority affirms this finding, holding that pointing the weapon at someone constitutes "use" and not simply waving or flourishing. This comports with the First Circuit's take in Villar. In dissent, Berzon argues that this is a too-narrow reading of "brandishing," which should include pointing at a person. Brandishing is more expansive than the dictionary definition as can be seen in the amendments of the Guidelines and reading it in connection with "otherwise use" which would include pistol whipping or use of other weapon.

U.S. v. Bennett, No. 06-50580 (9-10-10) (Wardlaw with Kleinfeld; dissent by Callahan). It walks like a bank; it talks like a bank; it is a wholly owned subsidiary of a bank, it even issues mortgages like a bank; BUT it is not a bank, under 18 U.S.C. 1344 because it is not a financial institution as defined. This corporation, Equicredit, did not have any deposits or assets insured by the FDIC. However, Equicredit was 100% owned by BofA, which is a financial institution as defined, and did have deposits insured by the FDIC. The problem is that the defendant defrauded Equicredit with bad mortgages in a property flipping scheme and is now prosecuted for bank fraud under 1344 which requires insured assets. The 9th held that the fact a subsidiary corporation is 100% owned by a bank which falls under the 1344 definition does not make the subsidiary a bank. It has a separate independent existence. The 9th holds this as a tenet of 100 years of corporations law. As such, fraud there is, but it is not prosecutable under 1344. Callahan dissents, focusing on the "sufficiency of evidence" standard, and arguing that the jury had enough evidence to find that the defendant received property under the "custody and control" of BofA even if BofA did not exercise control over Equicredit.

U.S. v. Espinoza-Morales, No. 09-50267 (9-10-10) (Paez with B. Fletcher; dissent by Walter, D.J.). This 1326 appeal decides whether a prior conviction for sexual battery and for penetration of a foreign object under California Penal Code 289(a)(1) is a "crime of violence" for 2L1.2 purposes. Using the categorical analysis, and then a modified categorical analysis, the 9th finds that it is not. The focus is on whether the elements of the offense all require force or violence. They do not because, as discussed in prior precedent, the duress or restraint might be by words only, or by fraud. The "penetration" by itself does not require additional force than what is stated in the sexual battery. Under a modified categorical approach, the abstract of judgment and information do not provide enough information to show that the defendant used or attempted to use force. The state court unpublished appellate opinion only dealt with the Vienna Convention right to consult and the facts of the offense were not part of the opinion's decision. There is no way of conclusively showing what the state jury had convicted defendant of. The sentence is vacated and remanded for resentencing on the existing record. In dissent, Walter argues that the state appellate opinion could be used in a modified categorical approach.

Congratulations to Federal Defender Doug Keller of the Federal Defenders of San Diego.

U.S. v. Comprehensive Drug Testing, Inc., No. 05-10067 (9-13-10)(en banc)(per curiam opinion with a concurrences by Kozinski, partial concurrences and dissents by Bea, Callahan, and a dissent by Ikuta). This en banc decision regards the seizure by warrant of the drug testing records in a highly publicized baseball steroid case and the district courts' suppression/return decisions. The problem with electronic seizures, as the per curiam opinions states, is that there is no way to be sure exactly what an electronic file contains without somehow examining its contents. The government's efforts to locate particular files will require examining other files. The solution, under an updating of Tamura, is for the government to foreswear the plain view doctrine, and other possible exceptions, in their digging around electronic data authorized by a warrant. Kozinski, concurring, lays out his detailed test for how a magistrate should proceed with a search warrant (13966). Bea's concurrence and dissent goes to his disagreement with the finding that the government disregarded the terms of the search warrant. Bea also thinks the Kozinski concurrence is unnecessary. Callahan is troubled by Kozinski's "guidelines" and bright-line foreswearing of plain view. Callahan would go with a case by case approach. She would also reverse the district courts' orders. Ikuta's dissent joins Callahan's and deals with the decision to return data under Rule 41(g).

U.S. v. Pool, No. 09-10303 (9-14-10) (Callahan with Lucero concurring; Schroeder dissenting). A person is arrested on a felony. For his pretrial release, the government demands that he gives a DNA sample for "identification." The person objects that it is an unconstitutional search. That's the situation here. The 9th has now held that such a demand can be granted because when a court has determined that there is probable cause to believe the defendant committed a felony, the defendant has forfeited his right to his identity. The government's interest is to prove true identity. If he is acquitted or the charge is dismissed, the sample can be purged. As the court held:

If not at the time that a person is arrested, certainly once there has been a determination of probable cause to believe that an individual has committed a federal felony, the individual no longer has any "right" or legitimate expectation of keeping his or her identity from the government. Kincade , 379 F.3d at 837. In light of the government’s legitimate interests in determining the true identity of the person, the balance between those rights and the individual’s rights favors the government, at least where, as here, the purpose and the effect of requiring DNA are only to provide the government with the person’s true identity.

Id. at 14034.

The concurrence by a Tenth Circuit judge agrees this is a difficult case, and writes because the government has a program to only use the DNA for identification and not for other mischief. Schroeder, dissenting, stresses that there is no conviction. The majority misconstrues precedent, and goes further down a path that eviscertes the Fourth Amendment. The seizure of DNA is not under a search warrant, but only for pretrial release. She points out that no other circuit has so held.

Case o' The Week: BOA, FDIC, and J/x: Bennett and "Financial Institutions" for Bank Fraud Cases

Mortgage fraud is rife, the viability of lending institutions is put in jeopardy, investors may end up losing their entire stake -- who is the only person on earth delighted that a lender is not insured by the FDIC?

James Davis Bennett.

United States v. Bennett, 2010 WL 3516438 (9th Cir. Sept. 10, 2010), decision available here.

Players: Decision by Judge Wardlaw (right), joined by Judge Kleinfeld; dissent by Judge Callahan.

Facts: Bennett ran a scheme to artificially inflate the value of Southern California property using relatives and straw borrowers, by “flipping” the real estate, and then pocketing the money from the inflated mortgage – leaving the lenders holding the bag. Id. at *1-*2. One lender victimized by this scheme was Equicredit. Id. at *2. Because it was not FDIC insured, Equicredit was not a “financial institution” within the meaning of the federal bank fraud statute, 18 USC § 1344. Id. Instead, it was a wholly-owned subsidiary of Bank of America (“BOA”) – which is a Section 1344 “financial institution.” Id. at *2. Bennett was convicted at trial of a number of counts; he appealed only his convictions from those counts involving fraud against Equicredit. Id. at *3.

Issue(s): “The sole issue raised on appeal is whether the government presented sufficient evidence from which any rational juror could find beyond a reasonable doubt that the ‘financial institution’ element of the bank fraud statute was satisfied in circumstances where the fraudulently obtained mortgages were loaned by Equicredit, a wholly-owned subsidiary of a ‘financial institution.’” Id. at *3.

Held: “Here, the government presented evidence that Bennett fraudulently procured funds from Equicredit; that Equicredit was a wholly-owned subsidiary of BOA; and that BOA was a ‘financial institution’ because it was FDIC insured. We hold that, based on these facts and the governing law at the time of the offense, no rational trier of fact could have found that Bennett procured assets ‘owned by’ a financial institution.” Id. at *6.

Of Note: This holding of this criminal case hinges on corporate law: Judge Wardlaw carefully works through decades of corporate decisions for the (now-familiar) principle that a parent corporation down not “own” the assets of a wholly-owned subsidiary company. Id. at *3-*6. The Court resolves the appeal on a Rule 29, “insufficiency of proof” analysis – but its interesting to wonder if the district court even had jurisdiction to preside over these charges? See United States v. Harris, 108 F.3d 1108 (9th Cir. 1997) (discussing federal jurisdiction conferred by FDIC insurance).

The beauty of jurisdictional challenges is that they can be raised anytime – including in a pretrial motion, or for the first time on appeal. See generally United States v. Moll, 988 F.2d 124 (9th Cir. 1993) (discussing jurisdictional challenges after a guilty plea). The downside of pretrial jurisdictional challenges? They invite the government to simply cure the problem by superceding or introducing facts at trial – without triggering the double jeopardy protections now enjoyed by Bennett from his appellate victory (see warnings in “How to Use” below).

How to Use: Is Bennett that elusive defense that we’ve been hunting in the recent deluge of mortgage fraud cases? Not so much. First, Judge Wardlaw observes that if Bennett was tried today, he would have been nailed by the newly amended statute which expands the definition of “financial” institution to include mortgage lending businesses. See id. at *6.

Moreover, even the old statute included the phrase “property in the custody and control.” If the government had bothered to prove that BOA actually had “custody and control” of Equicredit’s assets in the Bennett trial, the conviction might have survived. Id. at *7. Bennett is a good case for an intellectually-honest analysis of a sufficiency-of-evidence challenge, but the specific legal issue of wholly-owned subsidiaries may not give us much milage.

For Further Reading: The amendment referenced by Judge Wardlaw in Bennett was part of the Fraud Enforcement and Recovery Act of 2009 (“FERA.”) If you’re currently defending a federal white collar case, there’s a fair chance that FERA is playing some role in the prosecution. For a thoughtful and accessible summary of this new law, see the article here.


Image of the Honorable Judge Kim Wardlaw from http://thomas.loc.gov/cgi-bin/bdquery/z?d111:SN00386:@@@L&summ2=m&



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

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Thompson v. Runnel, No. 08-16186 (9-8-10) (Berzon with Goodwin; Ikuta dissenting). The police lie, cheat, and evade the Constitution -- interrogating the petitioner about a murder without Miranda warnings, lying to him, and then giving him the warnings after he is exhausted and emotionally distraught, and making him walk through the confession. In habeas, the state (California) shrugs and says, "hey, Seibert wasn't decided yet, and so we get a pass." "No," says the 9th Circuit. First, petitioner raised the Fifth Amendment issue, preserved it, and it is to be considered. Precedent from the early sixties that would require a filing of a new habeas in light of precedent is very narrow, and probably overturned by Teague. Besides, the police were conducting a policy to evade Elstad, and the giving of Miranda after the confession, and before the second set of statements, was also ineffective. The statements were undoubtedly prejudicial. Ikuta dissents, arguing that AEDPA requires the "look" at reasonableness at the time, and not in light of subsequent decisions (like Seibert). She would find the actions not deliberate; and the giving of warnings adequate.

Heishman v. Ayers, No. 07-99016 (9-8-10) (Per curiam -- Silverman, Fisher and M. Smith -- with Silverman concurring). The prosecution lies, cheats, and evades the Constitution -- withholding evidence of a star witness having sex with law enforcement, getting a break on misdemeanor charges, police reports on thefts, and funds for upkeep during trial. But hey, concluded the 9th Circuit, the cross examine at trial was pretty good, and there was no evidence because the petitioner was really really bad, convicted of murdering one of his rape victims to prevent her from testifying. The 9th Circuit also finds that mitigation started a mere two months before trial was excusable under the 1980's standards, and was not ineffective. The 9th Circuit finally upholds the district court's denial of expanding the record to include a mitigation expert's report of petitioner's childhood abuse. The failure of counsel, or experts, to uncover such abuse was not by itself IAC. Concurring, Silverman emphasizes the interplay between FRE 703 (experts) and evidence relied upon by the expert to render her opinion. In this case, the issue was whether the petitioner's assertion of childhood abuse becomes evidence and part of the record. The petitioner is the only one who was a witness to the abuse, but he never testified, nor submitted a declaration. FRE 703 permits experts to render opinions based on hearsay so long as it is the type of evidence usually relied upon by those working in the field. The Rule, though, does not perform evidentiary alchemy and transfer inadmissible hearsay into admissible evidence; it is only the expert's opinion that becomes admissible. The district court did not err in denying the petition.

Case o' The Week: Ninth's Had its Fill of "Harmless" Sentencing Error - Munoz-Camarena

Judge Susan Graber has been an important figure in the Circuit's development of post-Booker sentencing law: first, with the very good Menyweather decision, and this week with the equally good Munoz-Camarena opinion (finding Menyweather overruled!) United States v. Munoz-Camarena, 2010 WL 3448100 (9th Cir. Sept. 3, 2010), decision available here.

Players: Admirable win for SD Cal AFPDs Erica Zunkel, Steve Hubachek, and Kristi Hughes. Per curiam by Judges B. Fletcher, Pregerson, and Graber.

(Note that Judge Graber wrote the Ninth Circuit's very good Menyweather decision, which this panel holds has been overruled by intervening Supreme Court authority).

Facts: After being convicted for attempted illegal re-entry, Munoz-Camarena was sentenced under 2008 guidelines. Id. at *1. The district court equated Munoz-Camarena’s three prior drug possession felonies as being equivalent to a conviction for federal recidivist possession (which is an aggravated felony). Id. As a result, the court gave an eight offense-level bump at sentencing, and imposed a sentence of sixty-five months. Id. (It is only a four-level bump if the priors don’t constitute an “aggravated felony").

Between sentencing and the appeal, the Supreme Court decided Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), which held that a second possession conviction does not become an “aggravated felony” when the “state conviction is not based on the fact of a prior conviction.” Id.

Issue(s): “The Government argues that a remand is unnecessary because the district court’s error was harmless. The district court stated that it was going to sentence Munoz-Camarena to 65 months regardless of whether the four- or eight-level enhancement applied and also stated that it would apply the same sentence if the Ninth Circuit were to order resentencing. In United States v. Menyweather, 447 F.3d 625 (9th Cir 2006), we held that it was not an abuse of discretion for the district court to depart downwards from the Guidelines sentence . . . . We further held that, even if the district court erred, ‘any error was harmless . . . in view of our belief that the court would impose the same sentence again, having steadfastly maintained its position in the face of two opportunities to revise its sentence.’” Id.

Held: “Since Menyweather was decided, the Supreme Court has made clear that the district court must correctly calculate the recommended Guidelines sentence and use that recommendation as ‘the starting point and the initial benchmark.” Id. . . . Therefore, subsequent Supreme Court authority has effectively overruled application of the harmless error analysis employed in Menyweather to the miscalculation of a Guidelines sentence.” Id. (quotations and citation omitted)

Of Note: Belts & suspenders: we predicted it when § 3553(a) got in full swing, and many district court have since resorted to it to insulate their sentences. The idea is for a district court to stave off reversal by building-in harmless error with the trope, “I’d give the same § 3553(a) sentence regardless of the guideline calculations.” We liked that tactic when the defense was protecting a favorable sentence, see Menyweather blog here, but it was frustrating when a court was imposing a (high) incorrect or unfair guideline sentence.

From a neutral, policy perspective, this cynical approach was bad judging and made for sloppy sentencing for all: why bother really getting the guidelines right or engaging in a meaningful § 3553(a) analysis, when a district court could effectively immunize a sentence from appellate review by intoning the “same result regardless” mantra? This brief little Munoz-Camarena gem puts a definitive end to that bad habit: if the district court gets the guidelines wrong, the case is coming back for resentencing despite the court’s assurances that it would impose the same sentence under Section 3553(a). This is a big win with important ramifications for both trial and appellate sentencing practice.

How to Use: Munoz-Camarena ups the value of a sentencing appeal for guideline error, because a district court can no longer insulate an incorrect guideline sentence by rubber-stamping an identical § 3553(a) term on top. For cases with novel or disputed guideline issues, this decision just increased the value of an open plea with no appellate waiver.

For Further Reading: Five Justices have stated that Almendarez-Torres is wrong, and that Booker should apply to sentences increased by virtue of prior convictions. So when will A-T be reversed, already? Carachuri-Rosendo, the Supreme Court case at the heart of this week’s Munoz-Camarena decision, may have put the kibosh on that dream, for now. See Prof. Berman’s blog, here.



Image of Judge Graber's chamber's door from http://abovethelaw.com/susan-graber/


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

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U.S. v. Millis, No. 09-10134 (9-2-10) (Thomas with McKeown; dissent by Bybee).

Here is no water but only rock
Rock and no water and the sandy road
The road winding above among the mountains
Which are mountains of rock without water
If there were water we should stop and drink
Amongst the rock one cannot stop or think
Sweat is dry and feet are in the sand
If there were only water amongst the rock
Dead mountain mouth of carious teeth that cannot spit
Here one can neither stand not lie nor sit
There is not even silence in the mountains
But dry sterile thunder without rain

T.S. Eliot. The Waste Land (1922)(V. What the Thunder Said).

This case is about leaving water in the desert for undocumented immigrants crossing. The organization, "No More Deaths" places gallon-sized plastic water bottles at various points along crossing trails to alleviate the immigrants' exposure and prevent deaths. The water was placed in the Buenos Aires National Wildlife Refuge. The defendant admitted to U.S. Fish & Wildlife Service agents that he had placed the gallons and the reason. The agents explained that littering was a problem, and that water drums had been set up two miles way. The agents also explained that special use permits were required to allow such resources. The defendant picked up the bottles his organization had left. The agents then instructed the defendant to meet them at the next trail to retrieve other bottles. The defendant thought the agents said the next trail that had water that was hard to retrieve. The agents waited at the next trail, and when the defendant did not show up, the agents decided to issue a citation for "disposal of waste" under 50 CFR 27.94(a). The defendant argued before the court that humanitarian aid is never a crime. The magistrate court convicted, and the district court affirmed. On appeal, the defendant argued that the water was not garbage, refuge, sewage, or debris as defined under the CFR regulation as "disposal of waste." The government argued that plastic bottles were indeed garbage, and that littering was a serious problem. The 9th, using the rule of lenity, reversed the conviction. It held that whether bottles of water on trails were garbage was sufficiently ambiguous to invoke the rule of lenity. The water left was for human consumption and so arguably was not garbage. It was ambiguous. The defendant could have been charged with abandonment of property or failure to get a special use permit under that regulatory scheme, but he was not. In dissent, Bybee argues that the majority tortures the rule of lenity to reach that result, because the plastic water bottles could be clearly defined as garbage. Such bottles were a problem on the refuge, was littering, and constituted a danger to wildlife. The water bottles were for "illegal immigrants" but it would not matter if what was left were sleeping bags by an inattentive Cub Scout troop. Litter is litter. There is nothing ambiguous about it. Bybee would not invoke the rule of lenity.

Alert as to Stops & Warrants: Here is a heads up from AFPD Edie Cunningham, FPD Arizona (Tucson). If the police discover an outstanding warrant during an unlawful detention and find contraband in a search incident to arrest, the exclusionary rule might not apply. Some federal circuits and state courts have found the warrant to be an intervening factor that purges the taint of the illegality. See, e.g., United States v. Green, 111 F.3d 515 (7th Cir. 1997); United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006); People v. Brendlin, 195 P.3d 1074, 1081 (Cal. 2008); State v. Hummons, --- P.3d ----, 2010 WL 2951468 (Ariz. App. 2010).

Unfortunately, this issue is on the Supreme Court’s radar. At oral argument in Brendlin v. California, in 2007, some of the justices questioned whether the illegality of a traffic stop makes any difference when evidence is uncovered only after the discovery of an outstanding warrant during the stop. Brendlin, which held that a passenger is seized by virtue of a traffic stop and can therefore challenge its lawfulness, remanded to the state courts to "to consider in the first instance whether suppression turns on any other issue." 551 U.S. 249, 263 (2007). The California Supreme Court subsequently held that suppression was unnecessary because discovery of the unlawful warrant purged the taint of the illegal traffic stop, but it emphasized that a finding of attenuation is appropriate only in the "unusual case" where a questionable stop results in the "chance discovery" of an outstanding warrant. Brendlin, 195 P.3d at 1081.

Accordingly, some courts have maintained that suppression is necessary when an officer detains a person solely to check for warrants because application of the exclusionary rule is the only way to deter the police from randomly stopping people for that purpose. People v. Mitchell, 824 N.E.2d 642 (Ill. App. 2005); State v. Soto, 179 P.3d 1239 (N.M. App. 2008); see also United States v. Hudson, 405 F.3d 425, 440 (6th Cir. 2005) (when police make an illegal stop for the very purpose of arresting the person stopped, they are thereby exploiting the illegal stop and evidence obtained must be suppressed). And some courts that have held the exclusionary rule inapplicable when an unlawful detention results in discovery of a warrant have stressed that, although ultimately mistaken, the officer honestly believed that he or she had lawfully seized the suspect. Simpson, 439 F.3d at 492, 496; Brendlin, 195 P.3d at 1076-77, 1080; Jacobs v. Oklahoma, 128 P.3d 1085, 1087, 1089 (Okl. App. 2006).

We can only hope that other courts will apply this limitation of the exclusionary rule narrowly, if at all. But, as some of these cases illustrate, it is all too easy for courts to downplay the gravity of police misconduct and ignore the far-reaching implications of arbitrary warrant checks. See, e.g., Hummons, 2010 WL 2951468, ¶11 (finding no flagrant violation, and therefore no grounds for suppression, even if officer unlawfully detained and ran a warrants check on an African-American defendant because he was carrying a weed-eater and extension cord down the street at 9:00 A.M. despite officer’s admitted lack of reasonable suspicion); Green, 111 F.3d at 523 (no evidence of bad faith, and no suppression, where police stopped car in hope of finding fugitive but continued to unlawfully detain and run a warrants check on car’s occupants after confirming that fugitive was not present).

U.S. v. Munoz-Camarena, No. 09-50088 (9-3-10) (Per curiam with B. Fletcher, Pregerson, and Graber). The Supremes in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) held that a second or subsequent conviction for simple possession does not qualify as an aggravated felony when the state conviction is not based on the prior conviction. Prior to Carachuri-Rosendo, the district court in this 1326 appeal had treated the defendant's prior state possessions as being equivalent to the federal recidivist statute, and therefore adjusted for an aggravated felony. This resulted in an erroneous Guideline calculation and the sentence must be vacated and remanded. The 9th rejected the government's argument of harmlessness, based on the district court stating that it would sentence the defendant to the same term regardless of the characterization, by emphasizing the need for the district court to start with the right calculation, and then assess the sentencing factors.

Congratulations to San Diego Federal Defenders Erica Zunkel, Steve Hubachek, and Kristi Hughes.

McCormick v. Adams, No. 09-15546 (9-3-10) (Wallace with Kozinski and Clifton). Be careful what you wish for under Faretta. The petitioner was facing child molestation charges, and elected to represent himself. He signed a waiver form, and went through a colloquy with the court. The petitioner was adamant he did not trust attorneys, and never wavered pretrial in his desire for self-representation. At the end of the state's case, the petitioner asked for a continuance because he seemed "over his head," had memory lapses from a prior surgery, and wanted to find a lawyer. the court, despite having told him he could change his mind about counsel prior to trial, denied the request. The state and district courts all upheld the conviction and the Faretta representation, basically saying "too bad and too late." The 9th essentially did likewise. Although the trial court had said that the petitioner could withdraw his waiver at any time, and this might be error, this statement did not induce petitioner to waive counsel. His Faretta waiver itself was valid, and was knowing and voluntary. As to the petitioner asking for a continuance to look for counsel, the 9th considered this, and concluded that he never really asked for counsel, just the chance to look for one. He never explicitly revoked his Faretta waiver. A continuance, moreover, would have caused a delay. At this late time, in trial, the court was within its discretion in denying a continuance.

U.S. v. Melchor-Meceno, No. 09-10012 (9-1-10)(N. Smith with Schroeder and Moody, D.J.). This is another case dealing with whether a prior Colorado conviction for "menacing" is a "crime of violence" for enhancement purposes under 2L1.2. The 9th holds that Colorado's felony menacing statute, C.R.S. 18-3-206, is a categorical crime of violence. The Colorado felony statute requires a threat of imminent serious bodily injury and it requires a general intent to do so.