Case o' The Week: Defense Appeals Acquittal - and Loses; Vela and NGI appeals

Judge Canby's decision in Vela, complains dissenting Judge N. Randy Smith (right), will allow the defense to "have its cake and eat it too," and to get a "do over" when a defense strategy does not pan out at trial.

Works for us.

United States v. Vela, 2010 WL 4188983 (9th Cir. Oct. 26, 2010), decision available here.

Players: Hard-fought appeal by San Diego AFPD Todd Burns. Decision by Judge Canby, dissent by Judge N. Smith.

Facts: Vela, plagued with delusions about persecution by the Mafia and his family, interacted with a Customs Agent – then severely injured the agent by stabbing him in the chest. Id. at *1. Vela went to trial on a count of 18 USC § 111, assault on a federal officer. Id.

The indictment didn’t allege a “willful” assault, and the court refused a pretrial challenge on that alleged missing “element.” Id. The district court also rejected a diminished capacity defense, and an Apprendi challenge. Id. Vela was found not guilty by reason of insanity at trial, then committed to a mental facility in the custody of the A.G.. Id. “Vera timely appealed the judgment.” Id.

Issue(s): “[T]he government’s contention [is that] we lack jurisdiction because there is no final judgment from which Vela can appeal.” Id. at *2. Vela “contends that the district court erred in failing to dismiss the indictment, refusing to instruct the jury that willfulness is an element of § 111, and denying him the opportunity to present a diminished capacity defense. He contends that, as a result, he was denied an opportunity for an outright acquittal rather than a verdict of not guilty by reason of insanity, which results in civil commitment.” Id. at *1.

Held: “We conclude in this matter of first impression that, when a defendant is found not guilty by reason of insanity, the lack of a sentence does not necessarily preclude appellate jurisdiction.” Id. at *2. “Vela’s arguments [that § 111 requires a heightened mens rea for conviction, and that the diminished capacity defense therefore lies], are foreclosed by our decision in United States v. Jim, 865 F.2d 211, 215 (9th Cir. 1989), where we held that § 111 is a general intent crime.” Id. at *4.

Of Note: The big new rule of Vela is the ability to appeal after a verdict of “not guilty by reason of insanity” (N.G.I.). An intriguing side issue, however, is the Apprendi challenge to the federal assault statute. In 1991, the Ninth held that Section 111 – the assault statute – has a sentencing factor within it: whether the defendant used a dangerous weapon. Id. at *6. The Ninth explained that the judge could find that fact, kicking the stat max for the crime up to twenty years. Id.

Then Apprendi came down in 2000, and required that any enhancement fact that increases the stat max to be proved to the jury. Id. Faced with Apprendi, the panel in Vela now saves the federal assault statute by suddenly converting a former sentencing factor into an element. Id. at *7-*8.

Did the language of the assault statute change since the Ninth’s 1991 decision? Nope – and the legislative history didn’t either. The analysis supporting this flip-flop on the meaning of the assault statute in Vela is precisely as compelling as it was when the Ninth similarly salvaged the federal drug statute in Buckland in 2002 – not the Circuit’s finest hour.

How to Use: Dissenting Judge N. Smith gives a great primer on how the defense can “have its cake and eat it too.” Id. at 10. As Judge Smith grumbles, Vela allows a defendant to appeal “one failed affirmative defense, while keeping his acquittal verdict as a back up.” Id. Sadly, Vela isn’t quite the defense bonanza that Judge Smith describes: counsel for a mentally-ill defendant must still worry about indefinite civil commitment whether pursuing a dim cap or insanity defense (a danger not fully acknowledged by either Judge Canby or Judge Smith).

The availability of appellate review after Vela does help us to untangle the Gordian knot we face when weighing whether to pursue a N.G.I. defense. Of course, bear in mind that while Mr. Vela won on j/x, he actually lost his appeal – taking a little of the urgency out of Judge N. Smith’s “sky is falling” dissent.

For Further Reading: Diminished capacity, and N.G.I., are two very different concepts: a point emphasized by Judge Canby in lengthy footnote in Vela. Id. at *6 & n. 11. For an interesting and detailed (though ultimately disappointing) Posnerian exegesis on just how complicated N.GI. is, see Morgan v. Israel, 735 F.2d 1033 (7th Cir. 1984) (upholding denial of federal habeas petition), decision available here.



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


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U.S. v. Redlightning, No. 09-30122 (10-25-10) (Gould with Wardlaw and Mill, D.J.). This appeal has an extensive discussion on what it takes to get in expert testimony of false confessions. The case arises from a murder and sexual assault over 20 years ago. It went unsolved for 18 years, and then the police got a lead from a witness who knew the defendant. This lead to a re-opening of the investigation. The defendant became a suspect as a result. He was a Vietnam vet, suffering from PTSD, diabetes, low IQ, and blindness or impaired vision in his eyes. He was taken from his house and questioned by the FBI, put on a polygraph, and quickly confessed. The 9th found that the confession was neither involuntary nor in violation of Miranda. At trial, the defendant tried to get in a false confession expert. The court kept the expert out, under Daubert, when the expert concluded that there was nothing in the record to support his theory that the interrogation techniques used here raised a risk of false confession. There had to be more of a foundation connection to allow the expert to testify about false confession theory than just that false confessions occur. The 9th cautioned that its ruling is not a bar on such experts, nor does the defendant have to recant. There has to be some foundational evidence that would call the confession into question and a basis to show how the techniques triggered a false statement. Among the various other challenges, the 9th found the district court erred in allowing in the defendant's previous rape to show propensity to confess. It could come in, and did, under the evidentiary rules allowing for previous sexual assault convictions. The error though was harmless. The government also did not engage in misconduct to argue that no one would confess unless it was true.

Williams v. Ryan, No. 07-99013 (10-26-10) (Schroeder with Berzon; partial concurrence and dissent by Ikuta). This is a Brady issue. The petitioner was convicted of capital murder of his former girlfriend and given a death sentence. There was an alleged confession to a present girlfriend, but little else in the way of physical evidence due to the remote location of the killing. Two years after the sentence, the state turned over letters written by an inmate to a detective that contained information that petitioner paid another man (Fields) who actually had committed the murder. There was evidence that connected him. The issues here turn over whether this was Brady, and Brady as to what stage (guilt/sentence), and whether an evidentiary hearing was required. The 9th found that it was Brady as to sentencing, and a writ should be issued. The majority went further, holding that the Brady violation concerning another alleged perpetrator went to guilt, and that an evidentiary hearing was required to develop the record on whether it necessitated a new trial. In dissent, Ikuta would not go so far, finding no need for an evidentiary hearing in the guilt phase because the petitioner did not supposedly ask for it forcefully enough and under the facts as already developed.

McNeal v. Adams, No. 08-16472 (10-26-10) (Goodwin with Ikuta; concurrence by Berzon). The public defender missed the hearing on the prosecutor's request for a DNA sample in a sexual assault case. The petitioner argues that deprivation of counsel was at a critical stage (a Cronic stage) and IAC. Under the latter, the 9th held under AEDPA, the state court's decision that it was not IAC under Strickland was not unreasonable. Counsel appeared at a subsequent hearing, before the results came back, and did not raise an issue. Moreover. there did not seem much basis to argue against a DNA sample. Under federal due process analysis, this is not a Cronic critical stage. Concurring, Berzon believes that the court should have stopped with the Strickland analysis, and did not need to take up the critical stage issue. She also wishes to clarify that the "critical stage" standard applicable to Cronic, 466 US 648 (1984) is separate from critical stage standard applicable to Sixth Amendment claims. The Cronic stage concerns any stage at a criminal proceeding where substantial rights of the defendant is at issue. This differs from where the denial of counsel has such significant consequences that a prejudice determination is impractical. The distinction is between when a defendant gets a lawyer and a denial of a lawyer gives rise to an automatic reversal. The attempts of the majority to clarify the issue in its opinion has led to more confusion.

U.S. v. Vela, Jr., No. 08-50121 (10-26-10) (Canby with Rawlinson; dissent by N. Smith). The defendant was found "not guilty by reason of insanity" of assault on a federal officer in violation of 18 U.S.C. 111. So, does he have a right of appeal? That's the first question. The majority said "yes," because the verdict was a final order. The dissent (and government) argued that it was not, because it was an acquittal on criminal charges, and he is now transferred into civil commitment. Once the 9th found that there was a right of appeal, it denied defendant relief on his appeal issues, where he argued that the indictment should have been dismissed, the jury should have been instructed on wilfulness, and he should have been allowed to raise a diminished capacity defense. The 9th explained that 18 U.S.C. 111 was not a specific intent offense, but a general crime. Lastly, the charge itself was not facially unconstitutional under Apprendi. Dissenting, N. Smith argues that there is no conviction in this case, and no sentence. He fears that defendant's will get two bites of the apple for trial strategies.

U.S. v. Berry, No. 08-35002 (10-22-10) (Tashima with Kleinfeld and Tallman). The 9th takes this opinion to clarify that a district court may treat a 2255 motion as a Rule 33 motion for new trial. However, the 2255 must be timely; that is, with newly discovered evidence, within three years of the conviction. Rule 33 though is not jurisdictional, and can be waived, if the government does not object in a timely manner. The petitioner here was convicted of bank robberies and pipe bomb explosions back in 1997. The government in its prosecution used an "expert" on bullets and on "compositional analysis of bullet lead" (CABL) that connected the petitioner to weapons used in the robberies. Subsequently, the expert plead guilty to a false statement in connection in a Daubert hearing and the FBI stopped using CABL evidence because of doubts on its reliability. So, does petitioner get a new trial? No. The 9th concludes that while CABL evidence is suspect, and unreliable, and flawed, cross examination should have exposed it in 1997, or petitioner should have showed why he could not have exposed it then; and the evidence it is not so flawed, unreliable, and suspect to violate due process. Moreover, in this case, the expert hedged her testimony a little, and her investigation seemed to be specific to the facts on hand in this case: the buckshot used being compared to the composition of an exact manufacturer with a unique mixture of 3 percent antimony used in its manufacturing process and that percent was found in the ammunition used. Finally, the 9th, under the new trial analysis, concluded that the new evidence was really only impeachment (!) as was the expert's conviction, and the NRC report. There was also other circumstantial evidence.

Case o' The Week: Goodwin Finds Gold in Corner of Seventh Circuit - Mitchell and Kimbrough Policy Variances

A district judge looks at a guideline range, and knows in his or her gut that it is unfair -- it is based on bad policy, and would create unwarranted disparities in sentencing. Can that judge vary from the guideline under Section 3553(a), after Kimbrough?

Yep, if the guideline in question is Career Offender. (And, we think, the same logic must apply to the "fast-track" guidelines for illegal reentry cases as well). United States v. Mitchell, 2010 WL 4105220 (9th Cir. Oct. 20, 2010), decision available here.

Players: Decision by Judge Goodwin (right).

Facts: Mitchell, a Career Offender, pleaded guilty to distributing over fifty grams of a mixture containing crack. Id. at *1. The district court varied downward 43 months from Career Offender, id., because of its disagreement with the crack/powder sentencing disparity. Id. at *3.

Issue(s): Mitchell “challenges . . . the district judge’s consideration of the crack/powder disparity in his sentence.” Id. at *1.

Held: “We . . . join other circuits that have clarified that, even in cases where a defendant is being sentenced under the Guidelines as a career offender, the sentencing court may depart downward to account for the disparity between treatment of crack cocaine and powder cocaine in the Guidelines.” Id. at *1.

“Acceding to the [Supreme] Court’s confirmation of the advisory only use of the Sentencing Guidelines, the circuits that have recently addressed the crack/powder differential in sentencing a career offender have concluded that ‘district judges are at liberty to reject any Guideline on policy grounds – though they must act reasonably when using that power.’ United States v. Corner, 590 F.3d 411, 415 (7th Cir. 2010) (en banc) . . . . We agree with this analysis and now follow it in this circuit.” Id. at *4 (emphases in original) (footnote and citations omitted).

“Because the sentencing judge carefully considered and explained his downward adjustment of Mitchell’s imprisonment term to account for the crack/powder differential, even though Mitchell was a serial offender, the judge was entitled to disagree with the policy behind the advisory Sentencing Guideline and did not abuse his discretion in sentencing Mitchell.” Id. at *5.

Of Note: What, exactly, was Mitchell’s beef? It isn’t clear from the opinion. The original fight in the opening brief was over the judge’s failure to fully vary down to a 1:1 crack / powder ratio. See Appellant’s Opening Brief, 2009 WL 3760268. This argument obviously pre-dated the Fair Sentencing Act of 2010 (“F.S.A.”) – which changed the crack / powder ratio needed to trigger the mandatory minimums from 100-to-1 to 18-to-1. See general summary here.

Along the course of briefing the dispute veered into the power of the district court to vary from Career Offender based on a policy dispute with the crack laws: a happy diversion for defendants generally, though it didn’t do much for Mitchell himself.

How to Use: Those brainy folks at the San Diego FPD (and, in particular, AFPD Steve Hubachek) have seized on a broader impact of Mitchell: a sub-silencio rejection of a previous, unfortunate Ninth Circuit decision, United States v. Gonzalez-Zotelo, 556 F.3d 736 (9th Cir. 2009).

In Gonzalez-Zotelo, the Ninth reversed a § 3553(a) variance by a district judge who rejected the government’s refusal to give fast-track to one illegal reentry defendant when it had given the deal to another, more-culpable defendant the same day. Id. at *738. See blog describing decision here. Judge Silverman wrote that Kimbrough didn’t permit § 3553(a) variances for policy disagreements with Section 1326 fast-track disparities. Id. at *740.

Zip forward a year to Mitchell, and the Ninth now relies on the Seventh Circuit’s en banc decision in Corner to hold that a court can use Kimbrough for a § 3553(a) variance based on policy disagreements with the crack laws. 2010 WL 4105220 at *4.

The Seventh has since recognized that Corner changes everything – it has just held that Corner overrules its own limitations on Kimbrough variances for fast-track disparities. United States v. Reyes-Hernandez, 2010 WL 3911336, *10-*13 (7th Cir. Oct. 7, 2010). And, the Ninth has just adopted Corner - ergo, the Ninth appears to have rejected its own regrettable Gonzalez-Zotelo decision.

Like the more-enlightened Seventh, the Ninth should now take Gonzalez-Zotelo en banc and get rid of a decision that cannot be squared with Kimbrough and post-Booker sentencing.

For Further Reading: The Fair Sentencing Act of 2010 changed the crack/powder ratio for mandatory-minimums. The Sentencing Commission just adopted “emergency amendments” that affect the guidelines for these drugs. For a summary of this new amendment, see the Sentencing Resource Counsel brief here.


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


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Sipai And Administrative Law In The Criminal Context

On September 30th in Sipai, the Ninth Circuit amended an earlier opinion that had found the district court lacked jurisdiction to reduce a sentence based on crack retroactivity. Although the amendment is an improvement, both opinions are based on a simple mistake of administrative fact, presenting a case study on the importance of administrative law in criminal cases. In the original opinion, the Ninth Circuit applied part of the amended crack retroactivity policy statement that appeared generally to bar reductions for post-Booker crack defendants. On the contrary, the Commission intended to disapprove reductions only where the original sentence entirely disregarded the Guidelines. Because the Commission violated administrative law norms in promulgating this part of the Guideline, the Commission’s intent was not adequately communicated, leaving the parties and the courts unaware that the Commission did not intend to restrict the remedy for overlong crack sentences.

Let’s start back at the November 13, 2007, hearings on crack retroactivity. Lisa Freeland and I testified for the Federal Public Defenders on the question then before the Commission: Whether the partial remedy passed by the Commission lowering the crack guideline by two levels should apply retroactively. The Commission has been tenacious in trying to correct the over-incarceration resulting from the 100 to 1 crack to powder sentencing disparity. After open hearings on the question of retroactivity (available here), the Commission voted 7-0 to make a partial remedy available.

But embedded in the accompanying restrictive amendments to § 1B1.10, p.s., which were never published for comment and which no defender had ever seen, was the statement that caused the Ninth Circuit’s confusion in Sipai. The Sentencing Reform Act calls for participation of all criminal justice players – including Federal Defenders – in the amendment process under 28 U.S.C. § 994(o) and (p). Congress also required compliance with the notice-and-comment provisions of the Administrative Procedure Act, 28 U.S.C. § 994(x), and required rational and data-based decision-making under the APA and 28 U.S.C. § 991(b)(1)(C), (2), and § 995(a)(12)-(16). While the notice-and-comment provision applies by its terms only to “guidelines,” and not “policy statements,” the Court held in Dillon that § 1B1.10, p.s. was mandatory. By including language that set standards upon which sentencing courts would rely in deciding time the prisoner would serve, the Commission violated the basic administrative law standards for promulgation of substantive rules.

The Sipai case presents a classic example of the need for administrative law compliance. The surface of the policy statement section seems to foreclose relief to post-Booker defendants:

"[I]f the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v Booker, 543 U.S. 220 (2005), a further reduction generally would not be appropriate."

However, at the crack summit in Charlotte on January 17-18, 2008, Commission Chairman Ricardo Hinojosa disclaimed the reading that Booker sentences were not subject to the sentence reduction. He unequivocally stated that the statement quoted above was only supposed to apply where the sentencing judge entirely disregarded the Guidelines at the original sentencing. This position was confirmed at the St. Louis crack summit on January 24, 2008, where Allan Dorhoffer, the principal legal training officer of the United States Sentencing Commission, explained that this phrase was not intended generally to disqualify sentences imposed under Booker from the two-level reduction. He stated that the disqualification was intended to apply only where the judge decided a number of months “and didn’t look to the guidelines at all.” “[T]here are some judges who might not have paid as close attention to the guidelines range in sentencing, and just said, ‘you know, I think in general, 20 months is appropriate.’ In those situations – if you were a judge that did that – a further reduction is not going to be appropriate. Is that going to be the normal set of cases? Probably not.” The entire exchange with Mr. Dorhoffer is available here.

The original Sipai opinion shockingly upheld the district court's determination that it lacked jurisdiction to reduce a post-Booker crack sentence (here). Through the diligent advocacy of Joyce Leavitt and Robin Packel of the Oakland federal defender office, the opinion was amended. Instead of affirming the sentence, the Court remanded the case for the exercise of district court discretion. The FPD attorneys successfully argued that a general policy statement discouraging reductions did not deprive the sentencing court of jurisdiction to exercise discretion whether to reduce the sentence.

That leaves a potential administrative law challenge to the policy statement itself. The rule is legislative because it decides whether a reduction should be granted. Based on the lack of notice-and-comment, and the failure to articulate a supportable rationale, the portion of the policy statement at issue should be stricken as invalid. In Bureau of Prisons litigation, the Ninth Circuit has stricken regulations regarding sentence reduction under 18 U.S.C. § 3621(e) for successful completion of RDAP for violation of notice-and-comment (Paulsen) as well as for violation of APA § 706's requirement of rational rule-making (Arrington and Crickon). The same administrative law should apply to this aspect of the policy statement.

The application of administrative law can assist our clients in other contexts. For example, in the Fox case involving the degree of reduction on crack retroactivity, the Ninth Circuit initially granted the government’s request to rehear the case directly en banc. In Hicks, the Ninth Circuit had upheld the district court’s discretion to impose a reasonable sentence when considering a sentence reduction based on retroactive amendment. The government challenged the district court’s decision to reduce Fox’s sentence by more than two levels based on mere commentary to the crack retroactivity guideline. The issue may sound familiar because the Supreme Court granted certiorari on the constitutional issue in Dillon. Despite FPD Freeland’s heroic efforts, we lost the constitutional issue in the Supreme Court. But in the Ninth Circuit, Mr. Fox raised the administrative law claims that were not resolved in Dillon. Just as in Lopez v. Davis, where the Supreme Court denied RDAP statutory relief but left the administrative law questions open in footnote 6, the Dillon decision leaves unresolved the administrative law validity of the relevant policy statement. On September 9, 2010, the Ninth Circuit denied the government’s motion to summarily reverse Fox's sentence based on Dillon – “because the arguments raised by this appeal are sufficiently substantial to warrant further consideration by the merits panel” – and set the case for panel argument.

We criminal defense lawyers often view administrative law as blessedly beyond the scope of our normal advocacy. But the administrative validity of governmental action can have a decisive effect for our clients. In such cases, administrative law should be aggressively asserted keeping two principles in mind. First, in Arrington’s footnote 6, the Ninth Circuit left open the question whether “the promulgation of agency rules that restrict human freedom should be reviewed with ‘special vigor.’” Second, in footnote 9 of Chevron, the Court limited agency action based on the construction of the governing statute as elucidated using the “traditional tools of statutory construction,” which should include such defense-friendly principles as the rule of lenity and the doctrine of constitutional avoidance. If you have cases at the intersection of criminal and administrative law, such as the effect of Guidelines amendments or schedule decisions under the Controlled Substances Act, the briefing in Fox is available here (opening at 30-39; amicus at 17-27; opp to reversal)and you can feel free to contact our office or Amy Baron-Evans at the Sentencing Resource Counsel.

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

U.S. v. Mitchell, No. 08-50429 (10-20-10) (Goodwin with Canby; concurrence by O'Scannlain). The 9th clarifies that "even in cases where a defendant is being sentenced under the Guidelines as a career offender, the sentencing court may depart downward to account for the disparity between treatment of crack cocaine and powder cocaine in the Guidelines." (17306). The district court departed 43 months for the distinction; the defendant wanted more. It was not unreasonable that he did not get it; and the amount was within the court's discretion. The 9th did find that the prior convictions qualified him as a career offender. Even as a career offender, the court could depart based on the crack differential. Concurring, O'Scannlain stresses that this decision does not establish the standard of review applicable to the claim that the district court has varied too greatly from the Guidelines. O'Scannlain indicates that the greater the variation (here it was 43 months for the crack.cocaine differential), the closer the review.

In re Gonzales: Gonzales v. US District Court, No. 08-72188 (10-20-10) (Reinhardt with Berzon and M. Smith). The 9th grants a mandamus and orders a competency (Rohan) hearing to determine if the petitioner can assist counsel in his capital habeas proceeding. The district court had held that the proceedings were record based, and resolvable as a matter of law. The 9th reversed, holding that under Nash v. Ryan, 581 F.3d 1048 (9th Cir. 2009), even a habeas appeal that is record-based and resolvable as a matter of law can benefit from communication between counsel and client.

Congratulations to AFPD Tim Gabrielsen and Letty Marquez of the Capital Habeas Unit (Tucson), FPD Arizona.

Earp v. Cullen, No. 08-99005 (10-19-10) (Tallman with Farris and Nelson). In this death penalty case, the 9th remands on the issue of prosecutorial misconduct. The district court had the case back on a remand to hold an evidentiary hearing on the matter of misconduct and IAC. In the former, the petitioner argued that a witness favorable to him had been intimidated by the prosecution. The petitioner wanted to call the victim's mother to relate the pressure she felt from the police. Appointed counsel, she invoked the Fifth, and the court allowed a blanket invocation. This was error. The 9th precludes blanket invocations of the Fifth, and the invocation here denied the petitioner a full and fair opportunity to develop the facts. The witness did not, as the State argues, face perjury; the statute had run. The 9th remanded to a different judge given that the court had made findings of credibility already, had sought to cut the hearing short, and was critical of the 9th having issued a stay so that petitioner could bring in witnesses. On the IAC claim, the 9th affirmed the denial. It held that trial counsel was not ineffective in its psychological evidence and in not presenting evidence of organic brain damage, if it existed, at that time. Counsel also was not ineffective in its mitigation investigation of the petitioner's background.

Congratulations to AFPDs Robert Gerstein, Statia Peakheart and Dean Gits of the FPD Office, C.D.Ca (Los Angeles) for the remand.

U.S. v. Lozano, No. 09-30151 (10-18-10) (Per curiam with Schroeder, O'Scannlain, and Clifton; concurrence by O'Scannlain).

Things NOT to ask the postmaster: (1) whether postal workers screened mail?; (2) whether detection dogs were brought into the post office?; and (3) whether postal workers could open packages to look for drugs? It is better just to ask if the new stamps have been issued yet. In this case, the defendant asked the first three questions, which made the post master in the Barrow Alaska post office a tad suspicious. Lo and behold, a month or two later, a package comes to the post office, heavily taped, with an incomplete return address, and addressed to "Bill Corner" at the P.O. box for defendant. The post master sent the package to another site, where the ever-friendly postal dog, Hershey, alerted. The inspector got a warrant. The package (11 lbs. of pot) came back (22 hours later) and a controlled delivery took place. It was picked up by defendant, and although the tracking device was found in the dumpster, $2000 was found on defendant, which had drug residue. The defendant faced possession with intent charges. The defendant argued that the delay of mail was a seizure, but the 9th affirmed the district court in hold that it was not. It was a slight delay, and there were suspicions about the package. Moreover, the previous questions justified having it sniffed by Hershey. The 9th has upheld delays of up to 5 days given the remoteness of postal offices in Alaska. Once Hershey alerted, there was probable cause. The 9th also held that the court did not err in allowing in evidence under 404(b) of a prior search, conducted by state probation officers (defendant's son was on state probation) of defendant's house, which uncovered baggies of marijuana and weapons. It was not too remote in time (8 mos.) and it did not violate 403 either. O'Scannlain specially concurred, arguing that defendant had no standing to contest the mail because it was addressed to "Bill Corner" and not to him. If the mail is addressed to someone else, and not to a the person raising the challenge, there should be no standing because no expectation of privacy. Defendant here argued that the package was not sent to him.

Case o' The Week: Ninth Suffers from Weakened Immunity -- Flores-Blanco and Court-Ordered Use Immunity

A slow week for criminal decisions in the Ninth (as new clerks hit their stride?) lets us reach back a bit and consider the interesting, though disappointing, use-immunity decision in United States v. Flores-Blanco, 2010 WL 3835220 (9th Cir. Oct. 4, 2010), decision available here.

Players: Decision by Judge Canby.

Facts: Flores-Blanco and his co-defendant, Fernandez, were guides/ look-outs for aliens that hopped the border fence in Calexico. Id. at *1. Both men were charged with a number of counts of alien-smuggling offenses. Id. Fernandez pleaded guilty to one count as part of a plea agreement; Flores-Blanco went to trial. Id. at *2. Before trial Flores-Blanco listed Fernandez as a defense witness. At a proffer of Fernandez’s testimony “counsel for Flores-Blanco informed the district court that Fernandez had exculpatory evidence to offer in her client’s favor. In response to the district court's request for an offer of proof, counsel claimed that Fernandez would testify ‘[t]hat [it] was his job and [Flores-Blanco] had nothing to do with it.” Fernandez then interjected, “[Flores-Blanco] had nothing to do with it.” Id. at *3 (emphasis added).

The district court then interjected and had a little talk with Fernandez’s counsel and Fernandez – after which Fernandez promptly took the Fifth. Id. at *3. Flores-Blanco sought use immunity from the government and Court. Both refused, Fernandez never made the witness stand, and Flores-Blanco was convicted at trial. Id. at *3.

Issue(s): “Flores-Blanco . . . challenges the district court’s refusal to compel the government to grant Fernandez use immunity.” Id. at *3.

Held: “We conclude that there was no error [in the refusal to compel the grant of use immunity.” Id. at *3. “There was also no plain error in the district court’s failure to conduct additional inquiry into the propriety of Fernandez’s invocation of his Fifth Amendment privilege.” Id. “For similar reasons, the district court did not plainly err by not inquiring into the scope of Fernandez’s assertion of his Fifth Amendment privilege.” Id. at *4.

Of Note: This brief opinion is a disappointing outcome in a case where a central, percipient witness planned to offer directly exculpatory evidence. The outcome hinged on the Ninth’s lead use immunity case, United States v. Straub, 538 F.3d 1147, 1157 (9th Cir. 2008). Id. at *3. More specifically, the Achilles heel of this challenge was Straub’s requirement for one of two showings: that the government intentionally caused the exculpatory witness to invoke the Fifth “with the purpose of distorting the fact-finding process,” or, that the government gave use immunity to a prosecution witness, but denied use immunity to a defense witness who would have rebutted the government witness’s testimony. Id. at *3. No government witnesses at trial received use immunity, and Flores-Blanco didn’t show that “the government deliberately caused Fernandez to invoke his Fifth Amendment rights.” Id. at *3. For better or worse, Flores-Blanco is an accessible little case for evaluating chances at dodging Straub’s barriers and obtaining court-ordered use immunity in your own trial.

How to Use: There is one interesting tidbit in Flores-Blanco that may be the seed for a future argument. On appeal, Flores-Blanco argued that the district court intimidated Fernandez into asserting his Fifth Amendment rights. Id. at *3. The court’s role at triggering an assertion in the Fifth isn’t strictly in the Straub factors – Straub talks about the government’s involvement. Nonetheless, Judge Canby in Flores-Blanco doesn’t reject the “court” argument as outside of Straub’s parameters. Instead, he concludes that this particular claim “has no [factual] support in the record.” Id. at *3.

When a district court is too aggressive in “advising” an exculpatory defense witness on the dangers of testifying – effectively forcing the Fifth – remember the Flores-Blanco loophole and focus on building the record for a use-immunity challenge based on the court’s role in creating the situation.

For Further Reading: The U.S. Attorney’s Manual is a good starting point for seeking use immunity: Section 9-23.000 covers witness immunity generally, and Section 9-23.214 discusses use-immunity for a defense witness (“As a matter of policy, 18 U.S.C. § 6002 will not be used to compel the production of testimony or other information on behalf of a defendant except in extraordinary circumstances where the defendant plainly would be deprived of a fair trial without such testimony or other information.”). Section 9-23.000 available here.


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

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Case o' The Week: Timing is Everything - "Paper" and "Recency" Points in Garcia-Jimenez

Deferential "clear error" review, a low preponderance standard, and a crabbed application of the "rule of lenity" combine for a disappointing decision in the context of Section 1326 sentencing. United States v. Garcia-Jimenez, 2010 WL 3895696 (9th Cir. Oct. 6, 2010), decision available here.

Players: Hard-fought appeal by CD CA AFPD Kathryn Young, decision by Judge Bybee (above).

Facts: Garcia-Jimenez pleaded guilty to illegal reentry. Id. at *1. The issue was whether he’d get hit with the “paper” and “recency” points in the calculation of his criminal history category. The “paper” increase adds two points if the new offense is committed while a defendant is under a criminal justice sentence - including parole. Id. at *2. The “recency” points are added if the new offense is committed within two years of imprisonment on a previous offense. Id. at *3.

The chronology was complicated: Garcia was convicted of a robbery in 2001, paroled and removed in 2004, got a US parole violation in 2005, was released and removed a second time in 2006, arrested in the US again in 2006, paroled in 2007, then started working in the U.S.. Id. at *1. He was returned to the CDC in 2008, finished his stat-max parole term, then returned to work in 2008. He was prosecuted for illegal reentry in 2009.

At sentencing, the defense argued that the government failed to prove that Garcia hadn’t left the US and reentered voluntarily during these intervals (which would have “stopped” the continuing offense of illegal reentry and blocked additional criminal history points). The district court disagreed, applied the extra points and increased the Criminal History category.

Issue(s): “Garcia [argues] that the government’s evidence failed to prove that Garcia did not leave the country on the dates between his contacts with law enforcement, and that the government cannot meet its burden by showing that Mr. Garcia-Jimenez was in the United States on specific dates after . . . 2007. He argues that such a line of reasoning amounts to mere speculation and conjecture. He also notes the frequency with which individuals cross the border to Mexico and back undetected.” Id. at*5 (internal quotations omitted).

Held: “It is true that the government’s evidence does not account for Garcia’s presence in the United States at every moment since . . . 2007, and it is indeed conceivable that Garcia could have returned to Mexico at some point in between the dates of his contacts with law enforcement. However, the government did not need to prove with absolute certainty that Garcia had been in the country continuously since . . . 2007; the government’s burden
was only to demonstrate continuous presence by a preponderance of the evidence. By accounting for Garcia’s presence in the country for a major portion of the time since his return to the CDC [in] 2007, by demonstrating that Garcia had no reason to leave the United States during that time, and by showing that it would have been illogical for Garcia to leave the United States, the government satisfied its burden, particularly since Garcia offered no evidence at all to counter the government’s evidence other than general findings regarding Mexican aliens frequently crossing the border.” Id. at *5.

Of Note: This is an important (and disappointing) Section 1325 case. The criminal history points at issue are a frequent problem for our illegal reentry clients, and can bump a defendant up an entire Criminal History category. While conceding that the government bears the burden in proving the timing for these points, id. at *4, Judge Bybee’s very deferential review of the district court’s decision and emphasis on the low preponderance standard will make this issue a tough sentencing fight. The only solace is that on Nov. 1, an amended guideline deletes the “recency” hit.

How to Use: Don’t throw in the towel after Garcia-Jimenez: there were some unique and potentially distinguishable facts in this case. Garcia-Jimenez had been in the States since he was five, had U.S.-citizen children, a U.S.-citizen fiancé, and had returned twice after being removed. Id. at *5. These deep ties to the States made it “illogical” that he would have voluntarily returned to Mexico then re-entered (breaking the “continuous offense” of illegal reentry). For clients with fewer ties, the government’s “speculation” that there was no exit and reentry might be less compelling.

For Further Reading: “It has been observed by even strong defenders of the guidelines that the sentencing ranges called for under the guidelines for unlawful reentry cases are often unreasonably harsh and disproportionate to the seriousness of the offense.” So says the Seventh, in a great new decision. Read it here.


Image of the Honorable Jay Bybee from http://www.cbsnews.com/stories/2009/04/19/opinion/courtwatch/main4955353.shtml


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


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U.S. v. Garcia-Jimenez, No. 09-50304 (10-6-10) (Bybee with Noonan and Clifton). The defendant was sentenced under 1326 for illegal re-entry. The appeal concerns the criminal history calculation. The defendant, who was in and out of California prison because of parole violations (he was remarkably unlucky when it came to his burglary attempts), argues that he should not get +2 for committing this offense while under parole. He argues that between one release from prison and a subsequent arrest, he could have gone to Mexico. This would mean that he was not here while under parole and this was not a continuing offense. The district court found by preponderance that he had not and adjusted under 4a1.1. The 9th affirmed. The defendant had ties to California (he had come when he was five), had family here, and tended to get jobs, and commits crimes, quickly upon his release. The 9th also upheld that point adjustment for committing this offense within two years of release from imprisonment, holding that parole terms arising from the original offense counted as imprisonment.

U.S. v. Flores-Blanco, No. 09-50040 (10-4-10) (Canby with Hall and O'Scannlain). Fences may make good neighbors, but they are obstacles when it comes to alien smuggling. Here, the defendant was convicted of alien smuggling for gain, conspiracy, and encouraging an alien to come across. The defendant was outside his house in Calexico, right up against the border. As agents watched him from a concealed location, he and another man (co-defendant) appeared to be talking on a cellphone to others across the border. They made hand gestures, waves, and moved in unison. They then had an undocumented alien jump the fence, with instructions to go to the person wearing what the defendant was described to have been wearing. The defendant, though, had spied the agents and hurriedly walked away. Not for long, though, as he, the co-defendant, and the alien were arrested. At trial, the defendant subpoenaed co-defendant to testify, arguing that he had exculpatory testimony that it was essentially all his doing. The co-defendant invoked the Fifth, even though he had plead guilty under a plea agreement. Defense counsel asked the court to grant him immunity or order the government to. The court did not, and the government refused. The Ninth found this not to be error. It was open whether the co-defendant would have relevant testimony, and he still faced other possible charges. The government did not give other witnesses in the same shoes immunity. The 9th also found that the court did not err in allowing in under F.R.E. 404(b) other evidence of a prior alien smuggling in the same general area. This was to prove intent, knowledge and plan. There was also sufficient evidence that defendant helped to aid and abet the bringing in of the alien, although he did not physically transport him. Here, the defendant was sufficiently connected to helping the alien come in before he crossed the fence as shown by the phone and actions. There was also sufficient conspiracy evidence.

Case o' The Week: The Webster Definition - Money Laundering Proceeds in US v. Webster

Q: What is the most frustrating thing about the "rule of lenity," where a defendant catches a rare break thanks to an ambiguous term in a statute?

A: The courts' and Congress' eagerness to limit and clean up the ambiguity as quickly as humanly possible (in ways that never help the defense).

This week's decision is a case study for this phenomenon. In United States v. Webster, the Ninth Circuit further whittles down a righteous application of the rule of lenity by the Supreme Court in Santos -- and notes that Congress has done the same. United States v. Webster, 2010 WL 3784829 (9th Cir. Sept. 30, 2010), decision available here.

Players: Decision by Judge Thompson.

Facts: [On June 2, 2008, the United States Supreme Court decided United States v. Santos, 553 U.S. 507 (2008). The plurality decision in Santos required that the term, “proceeds” in money laundering jury instructions refer only to “profits,” and not to all gross receipts (at least in some cases).]

Six months later, Lamar Webster went to trial in Montana. 2010 WL 3784829, *1. Four cooperators testified against Lamar Webster on federal meth and money laundering charges. Id. at *1. The jury instructions for the money laundering counts referred to “proceeds,” but did not further define that term. Id. The jury returned guilty verdicts on all counts. Id.

Issue(s): “In instructing the jury on the money laundering counts, the district court did not define ‘proceeds’ as ‘profits,’ a failing which Webster now challenges for the first time. Because Webster did not raise a timely objection to the instructions, we review for plain error. . . . . Webster contends our decision in Moreland compels the conclusion that the district court's failure to define ‘proceeds’ as ‘profits’ in the jury instructions constitutes plain error. See Moreland, slip op. at 14319-320 (discussing and applying United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020 (2008)).” Id. at *3 (some internal quotations and citations omitted).

Held: “We disagree.” Id. “We . . . read Santos as holding that where, as here, a money laundering count is based on transfers among co-conspirators of money from the sale of drugs, ‘proceeds’ includes all ‘receipts’ from such sales. . . . Because the broad ‘receipts’ definition of ‘proceeds’ was permissible, the district court did not err in its jury instructions by failing to define ‘proceeds’ narrowly to mean ‘profits.’” Id. (internal quotations and citations omitted).

Of Note: Santos was the great 2008 Supreme Court victory, which reigned in the money laundering statute by refusing to allow all receipts of a crime to be deemed “proceeds” and subject to laundering prosecution. That victory was immediately whittled down – first, because it was only a plurality of the Supreme Court that arrived at that a narrow decision.

Then, in the 2009 Van Alstyne case, the Ninth Circuit held that this plurality opinion was limited to money laundering from offenses presenting the danger of “merger” between the laundering and the substantive crime (like pyramid schemes, where there was the “merger” danger that every fraud crime creating income would automatically become money laundering if “receipts” weren’t distinguished from “profits). See blog here.

To make matters worse, on May 20, 2009 Congress amended 18 USC § 1956 (the money laundering statute) by gutting Santos with a new definition of “proceeds.” The new definition is terrifically broad: “the term ‘proceeds’ means any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of such activity.” PL 111-21, May 20, 2009, 123 Stat 1617.

In sum, Santos had a short run.

How to Use: There are probably ex post facto problems with applying the new § 1956 definition of “proceeds” to fraud cases with conduct before May 20, 2009 (the effective date of the statute). For these pipeline cases with money laundering charges and “merger” problems, Santos should still control and modified jury instructions are in order.

For Further Reading: For a thoughtful and concise summary of the very confusing Santos tangle, the new definition of “proceeds” in the money laundering statute, and ideas how to use all of this wonderful mess to defend criminal and forfeiture charges, see Carlos F. Gonzalez and Regan Kruse, U.S. Anti-Money Laundering Laws in the Wake of U.S. v. Santos, Nov. 6, 2009, .pdf available here.



Money laundering image from http://www.tesionline.com/intl/img/focus/money-laundering.jpg

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


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