U.S. v. Lightfoot, No. 09-30063 (11-30-10) (Fernandez with B. Fletcher and Bybee). The 9th holds that an appeal waiver does not bar reconsideration of a reduced guideline range as a result of a retroactive application. The defendant had plead guilty to felonies, one of which was distribution of crack. The plea had the now pervasive appeal and collateral attack waiver. The 9th reasoned that the waiver was inapplicable because it was not considered, nor anticipated, and ambiguous. The 9th agreed with the 5th Circuit on this. Yet, though defendant got to appeal, he loses on the merits. The district court was within its discretion in denying a sentence reduction based on the danger that defendant presented. The district did not abuse its discretion.

Maxwell v. Roe, No. 06-56093 (11-30-10) (Paez with Pregerson and Mahan, D.J., D. Nev.). The petitioner gets relief. A spate of killings of homeless men in the later 1970's led to the killer being dubbed "the Skid Row Stabber." The petitioner was arrested and charged capitally with ten murders. The only real evidence was his palm print on a park bench close by one of the killings, although the evidence was that he frequently hung out by that bench. Other evidence was disputed or unclear (like shoe prints). The identifications were inconclusive. However, there was an infamous L.A. jailhouse snitch (Storch) who said that petitioner had confessed. The state courts later agreed that the informant was a liar, but decided that he had not lied this time. He was supposedly just beginning his career as a perjurer. The 9th first found that the petition was timely and not barred by AEDPA. Any delay was tolled because of the voluminous record and length of time of the process. The 9th then found that informant had lied, and that it was unreasonable to conclude that he did not. His lies were all over the record, and they violated due process. The lies were not harmless. The 9th also found violations of Brady by the state as to the plea deal with the informant, and these were not harmless. The petition must be granted.

U.S. v. Johnson, No. 09-50292 (11-29-10) (Strom, Sr. D.J., D. Neb. with Fisher and Bybee). Defendant plead guilty to distributing crack cocaine. His guidelines were 57 to 71 months. His sentence, though, was for 120 months. Unfortunately, he waived his right of appeal. The 9th takes a look at the colloquy under Rule 11, and finds that the waiver was valid. The fact that the defendant asked questions did not make his understanding suspect when the court took pains to answer the queries. Moreover, the court confirmed that the defendant met with counsel and discussed the plea. The 9th also brushed aside the equal protection challenges to crack/cocaine sentencing. On the appeal as to the supervised release conditions, defendant had more success. The district court imposed conditions against gang association and wearing gang colors -- all permissible -- but crossed the line with the condition that he not associate with people who associate with gang members. Although the review was again plain error (objecting really helps with the standard of review), the 9th concluded this was far too overbroad, vague, and violative of due process and First Amendment. It swept in people who may have social contact only with gang members, family members of gang members, and even such a person as a probation officer. Other conditions can achieve the same end of restricting gang affiliation and involvement.

Case o' The Week: Ninth Steel-s Interlocutory J/x from Defendant -- Steel, Double Jeopardy and Interlocutory Appeals

There's a very short list of permissible interlocutory appeals for the defense. Challenges to sufficiency of the evidence (on remand), it turns out, aren't on that list. United States v. William A. Steel, 2010 WL 4723187 (9th Cir. Nov. 23, 2010), decision available here.

Players: Decision by Judge Graber (right).

Facts: Steel successfully challenged his Hobbs Act conviction on appeal, due to an improper Allen charge. See United States v. Williams, 547 F.3d 1187, 1195-97 (9th Cir. 2008). Id. at *1, see also blog available here.

(Note: Williams is an interesting and useful Allen opinion that is worth adding to a trial binder).

In Williams, the Ninth remanded for new trial based on this procedural error. When Steel hit the district court he moved for a judgment of acquittal on Count One and alleged a double jeopardy bar to any retrial. Id. After the district court denied Steel’s motion, he took an interlocutory appeal. Id.

Issue(s): Should the Ninth Circuit “exercise interlocutory jurisdiction over an appeal from a pretrial order denying a motion to dismiss on double jeopardy grounds”? Id. at *1.

Held: “In summary, Gutierrez-Zamarano and Sarkisian require dismissal of this interlocutory appeal. As in those cases, Defendant received a new trial on procedural grounds, while the district court rejected his sufficiency-of-the-evidence claim. In those circumstances, Defendant’s original jeopardy has not terminated; consequently, his double jeopardy claim is not colorable.” Id. at *2.

Of Note: Both the district court and the Ninth considered – and rejected – Steel’s challenge to the sufficiency of evidence on Count One on the first go-around. Because that challenge had been considered during after the first trial, the equities weren’t with him as he argued appellate jurisdiction for this interlocutory review this second time around. Nonetheless, the Steel case seems to embrace an unfair rule: a defendant could win on procedural error on appeal, could be forced to go through a retrial, and could conceivably never get appellate review of the original sufficiency-of-the-evidence challenge from the first conviction?

Could a defendant still preserve a Rule 29 appeal from the first trial, after being forced to go through a second trial? Probably not.

Judge Graber notes than in the previous Gutierrez-Zamarano decision, as well as here in Steel, the Circuit had already considered the sufficiency of evidence claim on the first appeal. Id. at *2. (In both cases, the defendants had apparently raised new Rule 29 challenges on remand). That appellate review of the Rule 29 claim is a critical aspect of the Steel rule on interlocutory jurisdiction and mitigates the Double Jeopardy problem: be aware of that component if litigating this type of interlocutory appeal.

How to Use: Judge Graber reluctantly concedes that there is one tiny exception to this bar on interlocutory appeals – though she does her level best to distinguish a good Ninth Circuit case out of existence. Id. at *3 (discussing United States v. Szado, 912 F.2d 390 (9th Cir. 1990). If you’re fortunate enough to have earned a remand on procedural error after trial, Szado would be worth a close look.

For Further Reading: It seems that the logical approach to the problem described above would be to require an appellate court to always consider a defendant’s sufficiency-of-the-evidence claim on the first go-around, even if the Circuit finds reversible procedural error as well. Such a rule would ensure that the sufficiency claims don’t get lost in the jurisdictional cracks if the case is remanded for retrial. For a thoughtful argument in favor of that rule, and a careful explanation of this complicated intersection of Double Jeopardy and appellate jurisdiction, see Sara O. Wang, Insufficient Attention to Insufficient Evidence: Some Double Jeopardy Implications, 70 Va LR 1381 (1993).


Image of the Honorable Susan P. Graber from http://ylr.law.yale.edu/photos/100210_ylsaoregon/picture2685.aspx


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

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Judge Smith, The Fourth Amendment, And Technological Innovations In Surveillance

Judge Stephen Smith from the Southern District of Texas filed an opinion on October 29th that continues his important role in engaging on the issues deferred by the Supreme Court in City of Ontario v. Quon, 130 S. Ct. 2610 (2010). In Quon, Justice Kennedy identified but ultimately avoided the big Fourth Amendment questions implicated by technological innovations in communications such as, in that case, examination of text messages on a government pager. The Court found the city’s review of text messages on a government issued pager with text message capability was reasonable because the search was motivated by a legitimate work-related purposes.

While reiterating that individuals do not lose Fourth Amendment rights merely because they work for the government, the Court in Quon declined to elaborate fully on the Fourth Amendment implications of "emerging technology before its role in society has become clear." The Court stated, "rapid changes in the dynamics of communication and information transmission are evident not just in technology itself but in what society accepts as proper behavior." In finding that it was unnecessary to reach the scope of reasonable expectations in Quon, the Court contrasted the pervasive use of cell phones and text messaging as "essential means or necessary instruments for self expression, even self identification," with, on the other hand "the ubiquity of those devices," which makes private use much easier for government employees.

Strangely enough, the front lines of the struggle regarding technologically advanced surveillance and the Fourth Amendment are not being filled by defense counsel so much as by magistrate judges. And there is a good reason for this: Most of the innovations are occurring behind closed doors through sealed warrants, court orders, and administrative subpoenas that include gag orders. Judge Smith gave a taste of the pervasive and intrusive monitoring that goes on – with no adversary testing of Fourth Amendment boundaries – in his testimony before the House subcommittee on crime and homeland security (available here).

Following up on his careful study of technology and privacy, Judge Smith issued a critically important opinion in the evolution of Fourth Amendment protections regarding electronic surveillance. The government had been requesting warrants under the Stored Communications Act to compel service providers to produce cell phone records, including historical information regarding the cell sites contacted, covering 60 days. The information would provide the government with continuous location data regarding the target phone, whether the phone was in active use or not. Although he had previously signed such warrants, his opinion in In re Application For Historical Cell Site Data (available here) reversed course because “important developments in both technology and caselaw rais[e] serious constitutional doubts about such rulings.”

The major new case was the ground-breaking decision in United States v. Maynard, 615 F.3d 544 (D.C.Cir. 2010), which held that continuous Global Positioning System surveillance of a vehicle required a search warrant. The court distinguished the old Supreme Court case of Knotts because that case expressly reserved the question of 24/7 surveillance. The Maynard court rejected the Ninth Circuit’s decision in Piñeda-Moreno, which found no Fourth Amendment violation is long-term around-the-clock GPS monitoring (and generated this spectacular dissent by Chief Judge Kozinski on the denial of rehearing en banc). As reported by Lyle Dennison at Scotusblog here, the D.C. court of appeals denied rehearing en banc in Maynard, and certiorari has been filed on Piñeda-Moreno.

The new legal decisions also showed the importance of magistrate judges and the absence of adversary proceedings. In light of Maynard, Magistrate Judge James Ornstein issued an opinion finding that historical cell site information constituted a search that implicated the Fourth Amendment’s warrant requirement (available here). Judge Smith also referenced the Third Circuit’s response to unprecedented collective action by magistrate judges in requiring probable cause before issuing warrants for historical cell site information, which resulted in a remand for factual findings (available here).

In keeping with the Third Circuit’s emphasis on the need for factual development, Judge Smith carefully set out the manner in which the technology operates in the real world, the information that is collected and retained, and the pervasiveness of cell phone use. With four-part harmony, Judge Smith then reached the three conclusions of law that supported his denial of the warrants:

• Cell site historical data reveals non-public information about constitutionally protected spaces;
• Under the prolonged surveillance doctrine of Maynard, historical cell site records are subject to Fourth Amendment protections;
• Because the government failed to demonstrate that the user voluntarily conveyed location data, the case law on information voluntarily conveyed to third parties does not apply.

The lack of adversary proceedings has led to a procedurally unique litigation pattern. For example, in the Third Circuit case, no party could oppose the government’s appeal of the magistrate judges’ decisions. Instead, the magistrate judges’ position was defended by amici, including the Federal Public Defender, the American Civil Liberties Union, and the Electronic Frontiers Foundation. Similarly, in Oregon, Magistrate Judge Dennis Hubel refused to authorize an indefinite gag order regarding warrants for emails, holding that after 180 days, the government should provide notice to the email user that the seizure of records had occurred, absent a special showing of need. The government appealed with no party opposing. The Federal Public Defender was appointed to file an amicus brief in support of Judge Hubel’s decision. The district court reversed, approving no notice to the persons whose emails were examined on the basis that emails do not receive the protection of seized property and should be treated analogously to items left in the custody of third parties. In the absence of a party who could appeal, the district judge’s opinion (available here) is the last word in this District, never receiving the appellate review it deserved.

Magistrate judges are alerting the defense bar to massive intrusions on our clients and the general public that are occurring without proper judicial review, often without the knowledge of the person whose privacy has been breached. This means that, in order to protect our clients, and by doing so protect the public, we need to identify issues involving technological intrusions on privacy and use the available discovery and pretrial mechanisms to advocate for compliance with traditional Fourth Amendment standards. Judge Smith has provided an important template for the factual and legal predicates to litigate privacy rights back on the books.

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

Douglas v. Jacquez, No. 08-17478 (11-24-10) (Bea with Callahan; Graber dissenting).

This is an interesting decision as to whether a court, granting habeas relief, can order the state court to enter judgment on a lesser included offense. This California state habeas was filed regarding a conviction for first-degree murder during a robbery and a conviction for arson of an inhabited structure. The sentence of the arson conviction was consecutive. As the facts played out, the arson occurred hours after the murder when the petitioner returned to destroy the evidence. The victim was dead by then. The district court granted relief because of the victim's prior demise, and ordered a judgment on the lesser included of arson of an uninhabited structure. On appeal, the petitioner argued that the district court could not so order because it violated double jeopardy. The 9th found no double jeopardy violation, but that the court could not order the lesser entered; it was up to the state to so resentence. The court's habeas power is limited to vacation or postpone of vacation for a reasonable period to allow the state to resentence. The state could resentence because of state law as to sentencing for lesser included offenses when the trial evidence indicates that the defendant is not guilty of the greater crime but is guilty of the lesser. Although the jury was not instructed on the lessers here, the jury had to find the lesser offense to convict on the greater. The district court should grant the relief and let the state resentence. Graber, dissenting, argues that double jeopardy is implicated. The jury was not instructed on lesser offenses here. As such, the district court could only grant the unconditional habeas. Double jeopardy is implicated because the petitioner may have gone with an all or nothing strategy.

U.S. v. Steel, No. 09-50335 (11-23-10) (Graber with Wallace and Mills, Sr. D.J., C.D.Ill).

"Wait, wait, before retrial, I get an appeal on the sufficiency of evidence." That is essentially the position of the defendant, who got a remand for an Allen instruction error on his first appeal from a Hobbs Act conviction. The case went back to the district court, where the defendant asked the court for a judgment of acquittal for insufficiency of evidence on the conspiracy count. The court denied the motion, and the defendant then sought this interlocutory appeal, arguing that the ruling placed him in double jeopardy. The 9th acknowledged that insufficiency of evidence may be intertwined with a double jeopardy appeal. However, there has to be a terminated jeopardy. Here, though, the remand and the ruling on a procedural issue (jury instruction) had not terminated the defendant's original jeopardy. The district court ruled against the defendant, and that ruling can be later reviewed.

Gollehon v. Mahoney, No. 09-99011 (11-22-10) (O'Scannlain with Farris and Wardlaw). The petitioner was convicted and sentenced to death in a Montana prison murder. He was convicted of "deliberate homicide by accountability," as a way of the jury convicting him and a co-defendant without having to find who struck the victim with baseball bats. The issue was whether the statute lacked the fair notice that essentially aiding and abetting could subject the defendant to the death penalty. The 9th found that the Montana statute did not state a separate offense, with the catch-all penalty of 10 years, but rather was a form of accountability, referencing the substantive offense of first-degree murder. The 9th used canons of statutory construction and the trend toward model penal codes to so hold.

U.S. v. Spangle, No. 09-50508 (11-19-10) (Tallman with Clifton and Bea). The 9th affirms the judgment and sentence in a SR proceeding. Of interest is that Kozinski, Chief Judge, sat by designation as a district court judge on this matter. The defendant, with prior bank robberies and mailing threatening letters, had a long history of SR violations. The most recent had indicia of his going to threaten a former probation officer. He was found in violation, and sentenced to 24 months with SR to follow. On appeal, he argued that he should be allowed to represent himself under Faretta. The 9th held that SR was like parole revocations, and so there was no Sixth Amendment right to representation. Any right to representation, and thus self representation, arises from statute, 28 U.S.C. 1654. The court had denied the defendant his self representation because it was too late and what he wanted (to see certain documents) was deemed not relevant. The 9th did not address whether there was error, finding that the whole thing would have been harmless anyhow. Of interest, too, was whether the court erred in failing to recuse itself because the defendant had personal information on the judge in his possession. The court said that such information could easily be gleaned from the internet, and that he did not feel at risk. The 9th noted that, and also stated that if possession of information about a judge, even threatening, could get a judge to recuse him or herself, it would lead to a rash of judge shopping. Under both an objective (what others would think) and subjective (actual bias) test, set out in Holland, 519 F.3d 909 (9th Cir. 2008), there was no plain error to require recusal. The sentence was also not unreasonable.

Case o' The Week: Booker and the Bard - Todd and Mens Rea

"As William Shakespeare said of time in Sonnet 115, its 'million'd accidents creep in' and nothing is completely stable, no plan is beyond alteration." United States v. Todd, 2010 WL 4596380 (9th Cir. Nov. 15, 2010) (as amended on denial of rehearing and rehearing en banc), decision available here.

To illustrate the Bard's wisdom, who would have predicted that a great Apprendi decision from last year would get flipped by the same panel upon the government's petition for rehearing? Id.


Players: Decision by Judge Noonan joined by Judge Pregerson, concurrence by Judge M. Smith.

Facts: Todd gently wooed women into prostitution; once recruited, he beat them to maintain control. Id. at *1. He was convicted after trial of sex trafficking in violation of 18 USC § 1591(a)(1) (the “Trafficking Victim’s Protection Act” (“TVPA”)). Id. at *1.

Under the TVPA it is a crime to recruit a prostitute “knowing that fraud, force, or coercion will be used.” Id. at *3 (quoting 18 USC § 1591(a)(2) (emphasis added). The TVPA dictates an enhanced sentence of fifteen years to life, “if the offense was effectuated by force, fraud or coercion.” Id. at § 1591(b)(1) (emphasis added).

Last year this Ninth Circuit panel found that, under Booker, there was an unconstitutional “hole in the statute.” It accordingly reversed three, twenty-six year sentences under the TVPA. Todd, 584 F.3d 788, 793 (9th Cir. 2009). The panel so held because the jury had not been required to find that Todd had actually “effectuated” the offense “by fraud, force or coercion.” 18 U.S.C. § 1591(b)(1).” Id. at 793. The government petitioned for rehearing.

Issue(s): Was Todd’s statutory maximum sentence for the TVPA counts unconstitutionally raised above ten years, based on an enhancement fact not alleged in the indictment or found by the jury beyond a reasonable doubt – namely, that he recruited women to engage in a commercial sex acts and actually effectuated the offense by fraud, force, or coercion?

In other words, is there a “hole in the statute” that allowed Todd’s higher statutory maximum sentence without a jury finding that he actually used force?

Held: “As I read 18 USC § 1591, there is no ‘hole in the statute.’” 2010 WL 4596380, *6 (M. Smith, J., concurring). “The phrase, “will be used” in subsection (a) does not leave open the possibility that force, fraud, or coercion was not eventually used in committing the offense.” Id. “By using the phrase, ‘will be used’ as opposed to something more speculative such as ‘could be used’ or ‘might be used,’ the statute describes definitive conduct.” Id. “Had force, fraud, or coercion not actually been used to cause the victim to engage in a commercial sex act, Todd could not have been prosecuted under 18 U.S.C. § 1591.” Id. (emphasis added).

Of Note: With all respect, the panel's first decision was far more persuasive. Despite Judge Smith’s assurances, under this statute a defendant can be prosecuted and can receive a higher sentence under the Trafficking Victim’s Protection Act even if no force, fraud, or coercion was actually used. The Todd Court has just effectively held that this fact isn’t an element, the jury isn’t required to find this fact, and there presumably wouldn’t be any bar to indicting a case where this fact is missing. Judge Smith assures us that a defendant can seek a special defense instruction if there is no actual force used, id. at *7 & n.3, but that remedy turns Apprendi on its head – converting a Sixth Amendment right into, essentially, an affirmative defense.

The decade since Apprendi has produced a number of strained legal analyses as courts stretch to save statutes from Sixth Amendment attack. See, e.g., Buckland, 289 F.3d 558 (9th Cir. 2020) (en banc); Booker, 125 S.Ct. 738, 757 (2005) (remedial opinion). Todd, unfortunately, now joins this list.

How to Use: Given the language in Judge Smith's concurrence, it is hard to imagine that any prudent prosecutor or district court would not insist on an instruction, after Todd, that requires the jury to find actual use of “force, fraud, or coercion.” The defense can seek such an instruction as well. 2010 WL 4596380, at *7 & n.3. If this instruction isn’t given, preserve the Apprendi challenge – the Supreme Court still hasn’t weighed-in on this Sixth Amendment issue.

For Further Reading: Here’s Todd’s novel, new mens rea state: a pimp is guilty of this heavy crime when he sweetly woos potential prostitutes, if he knows that fraud, force, or coercion will be used later. In a most curious analogy, Judge Noonan compares this to federal judges who “know” that their clerks will use Westlaw in the future. Id. at *4. Without supporting citation, the Court asserts that “When an act of Congress requires knowledge of a future action, it does not require knowledge in the sense of certainty as to a future act.” Id.

Huh?

For a persuasive bipartisan attack on the endangered federal mens rea element, see Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, available at the Heritage Foundation, here, and at the National Association of Criminal Defense Attorneys, here.


Image of William Shakespeare from http://hrsbstaff.ednet.ns.ca/engramja/projects&evals/mag_1/Shakespeare.jpg


Steven Kalar, Senior Litigator, N.D. Cal. Federal Public Defender. Website at www.ndcalfpd.org


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U.S. v. Anderson, No. 09-50559 (11-16-10) (Per curiam with Pregerson, Ripple from the 7th Cir., Graber). "Hey, I only plead nolo...I didn't say I was guilty." How many times has a defendant said that when faced with a past conviction being used against him? In this case, the district court dismissed an indictment for being a prohibited possessor of a firearm because the defendant's two predicate California felonies were each a result of a nolo contendere plea. The 9th held that such a dismissal was clearly erroneous. The state statute, Calif. Penal Code 1016(3), clearly states a nolo contendere plea is equivalent to a guilty plea. The federal statute, 922(g)(1), looks to the state definition. The dismissal was reversed.

Case o' The Week: Detrimental, reliance - Schafer and Equitable Estoppel

What will repeated assurances by two California law enforcement officers that your grow is legal, get you? Federal charges and five years in a federal prison. United States v. Schafer, 2010 WL 4400052 (9th Cir. Nov. 8, 2010), opinion available here.

Players: Hard-fought case argued by our ND Cal CJA comrade Barry Morris. Decision by Judge Tallman.

Facts: Marion Fry was a medical doctor diagnosed with breast cancer in ‘97. Id. at *1. She and her husband, attorney Dale Schafer, grew marijuana to help alleviate the side effects of her chemotherapy. Id. The pair informed the local sheriff, and a detective and sergeant visited their residence and inspected their marijuana plants. Id. In ‘99, the marijuana grow, grew - and the two cops continued to visit and tolerate it. Id.

In 2000 DEA started investigating, in ‘01 the feds searched the business and home, and by ‘05 the couple were charged federally with a count of conspiracy to grow and manufacture marijuana, and a count of manufacturing at least 100 plants. Id. at *2.

The defense theory was entrapment by estoppel, alleging that the detective and sheriff were affiliated with the feds, and had blessed the grow as legal. Id. That theory was asserted as a pretrial motion to dismiss, was intended to be a defense at trial, and was argued in mitigation at sentencing. Id. at *2-*3. The district court rejected the theory at each turn. The court also refused to hold an evidentiary hearing on whether the two state law enforcement officers were acting as feds and had “said Appellants’ conduct was legal.” Id. at *2.

Each defendant got five years after conviction. Id. at *3.

Issue(s): (Among others): “Appellants’ first challenge focuses on the district court’s denial of their request for an evidentiary hearing on the motion to dismiss. They argue that they were entitled to an evidentiary hearing because the filings submitted in support of and in opposition to the motion to dismiss presented significant factual disputes.” Id. at *3.

Held: “[T]he questions raised by Appellants’ motion to dismiss establish the viability of Appellants’ defense; the factual disputes were not segregable from the issue that was to be decided at trial – Appellants’ guilt. Pursuant to [Federal Rule of Criminal Procedure] 12, the district court could not resolve these disputes before trial, and therefore it did not abuse its discretion when it denied Appellants’ request for an evidentiary hearing.” Id. at *4.

Of Note: In rejecting the motion to dismiss, Judge Tallman explains that “the district court was precluded from holding that Appellants were entitled to an entrapment by estoppel defense as a matter of law until the jury resolved the truth of the factual dispute.” Id. at *5 (emphasis added). He then immediately concludes that the jury shouldn’t hear this issue, and that the district court properly excluded the entrapment by estoppel defense as a matter of law. Id. at *5. (Tricky business, that: tough for a jury to resolve a factual question it never hears . . . .)

Schafer’s discussion on the right to an evidentiary hearing is a troubling limitation on a district court’s ability to hear pretrial motions, and relies heavily on United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452-53 (9th Cir. 1986). Shortt – and now Schafer – perpetuate a tough reality when defending drug cases: to assert a defense of entrapment, a defendant has to run the huge risks of taking a case to trial and can’t rely on a pretrial motion to dismiss. Because of the federal system’s steep mandatory-minimum sentences, in most cases this principal effectively insulates agents from judicial review of entrapment by estoppel or sentencing entrapment.

How to Use: There’s little that’s good in Schafer, but there are lessons on things to avoid. One such pitfall is briefing that doesn’t present facts in sworn declarations. Schafer at *4 & n.3. Although Eastern District of California rules require it, the defense moving papers in Schafer did not have supporting declarations. Id. Judge Tallman warns, “The district court would have been well within its rights to reject the request for an evidentiary hearing on this ground alone.” Id. Because the appellate challenge was denied anyway, the panel “overlook[ed] the procedural defect in the case . . . .” Id. “Trial counsel, however, would be well advised to follow the rules.” Id.

For Further Reading: However you felt about the merits of the measure California’s Prop 19 would have sharpened the divide evident in Schafer, between the state’s tolerance of marijuana and the feds’ prosecution of the drug. For an interesting article dissecting the proposition’s defeat, and discussing plans to it to the 2012 ballot, see SF Chronicle article here.


Cartoon from http://www.veiled-chameleon.com/weblog/httpdocs/images/blogcontent/doobius.jpg

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


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U.S. v. Diaz-Lopez, No. 09-50604 (11-9-10) (Gould with O'Scannlain and M. Smith). It is not every day we come across an extended discussion of "the best evidence" in a criminal prosecution. We do here, along with an interesting foray into foundation, arising from a 1326 (illegal reentry) appeal. The agent testified at trial that he searched a computer database for evidence of the defendant getting permission to return. There was none. However, the agent did not testify as to how the database was maintained. This was the subject of a foundation attack. The 9th held it was not necessary for the agent to be an expert in the creation and maintenance of the database; it was enough that he was familiar with it, how data was entered, and the record-keeping practices. As for "best evidence," the 9th accepts that this is an issue: an original has to be produced when or if the document's terms are in question (not the interpretation). The 9th reviews the history of the doctrine, the gnashing of evidence professors' teeth over the meaning, and the extension of the doctrine in the 21st century. The 9th finds it is not applicable here because the agent's testimony was a negative one: there was no record of a request to come back or action upon it. Thus, Rule 1002 (best evidence) is inapplicable to his search of a database that revealed no record.

U.S. v. Schaffer, No. 08-10167 (11-8-10) (Tallman with B. Fletcher and Rawlinson). The defendant and his co-defendant (and wife) were convicted of conspiracy to grow and distribute marijuana plants. They were growing marijuana for medical purposes (the co-defendant has cancer) and the government prosecuted on the fact that the operation expanded to be a distribution undertaking. The defense at trial was entrapment by estoppel because the county deputy sheriffs dropped by to check out the medical dispensary operation and gave it their okay. The deputies were also working with the federal task force. The 9th affirmed the convictions and sentence, affirming the district court's rulings precluding the defense and a medical necessity defense. The 9th reasoned that the defendant knew distribution was illegal under federal law (it was on the pamphlets they distributed with the product). The defendant's argument that his actions were sanctioned by the government were not supported by any evidence. The Supremes decision in Oakland Cannabis Buyers' Cooperative precluded the medical necessity defense, and could be applied to the operation retroactively because the issue was unsettled, and the drugs had been illegal at least since 1970. The 9th also found that the defendant was not entitled to an evidentiary hearing on the motion to dismiss given that the issue of estoppel was intertwined with the general issue of guilt.

U.S. v. Grob, No. 09-30262 (11-10-10) (Wardlaw with Gould and Mills, Sr. D.J., C.D. Ill). What "mischief" is the 9th up to in this opinion? Not much, because the 9th finds that a Montana criminal mischief conviction is like disorderly conduct, and meets the requirements not to be counted under USSG 4A1.2(c). The defendant had been convicted of cyberstalking. The district court counted the conviction, placing the defendant in Criminal History Category III. The 9th vacates and remands for new sentencing for procedural error in counting the prior. In holding that the "mischief" was like disorderly, the 9th first notes that criminal mischief is not listed in the enumerated offenses that are not counted if the sentences fall short. If the offense is like one of the enumerated offenses, then it is not counted. Is mischief like disorderly conduct? The offense is not defined in the federal criminal code. In doing the comparison, the 9th applies application note 12 of the Guidelines, which states that the court should use a "common sense" approach. This common sense approach is for Guideline comparisons under app. note 12. The test considers (1) a comparison of punishments; (2) the perceived level of seriousness by the punishment imposed; (3) the elements of the offense; (4) the culpability involved; and (5) whether the offense indicates a likelihood of recurring criminal conduct. Using this test, the 9th comes out that mischief is very much like disorderly conduct, even with a higher stat max and some other differences. A new sentencing is in order.

Congratulations to Tony Gallagher, John Rhodes, Andrew Nelson, and Jessica Weltman of the Federal Defenders of Montana.

Case o' The Week: The Ninth Gets it Wright -- Federal Jurisdiction in Child Pornography Cases

Does a statute that makes it a federal crime to transport child pornography across state lines, require that the images actually cross state lines?

Um, yes. United States v. Wright, 2010 WL 4345670 (9th Cir. Nov. 4, 2010), decision available here.

Players: Important victory for D. Az. AFPDs Heather Williams and Brian Rademacher. Decision by Judge Milan Smith, concurrence by Judge Hug.

Facts: An FBI agent got onto a mIRC (Internet Relay Chat) and directly hooked into a a computer server later traced to Wright’s address. Id. at *1. The agent downloaded child porn, and Wright was charged with the “advertisement, transportation, and possession of child pornography.” Id. at 2. Because the FBI agent’s computer (in Arizona) linked directly to Wright’s computer (in Arizona), (albeit over the internet) the images did not move across state lines. Id. at *3.

Wright beat seven counts at trial. Id. (!?! - a remarkable victory - seven acquittals in a child porn trial!). One of the counts of conviction was transportation of child porn under 18 USC § 2252A (as it existed in 2003). Id.

Issue(s): “Whether section 2252A(a)(1)’s ‘in interstate . . . commerce’ language requires the government to prove that the images themselves traveled across state lines appears to be a question of first impression in this circuit. Wright’s principal argument is that the statute does so require.” Id. at *3 (emphasis added).

Held: “[O]ur precedent indicates that criminal statutes punishing the transmission of the relevant material ‘in interstate or foreign commerce’ require the material itself to cross state lines. Yet here, as the government concedes, none of the images Wright transported to Andrew’s computer left the state of Arizona. Indeed, none traveled outside the city of Tuscon.” Id. at *6. “[W]e hold that an interstate predicate act - here, Wright’s connection to the IRC network - does not provide a sufficient basis for federal jurisdiction under section 2252A(a)(1).” Id. at *9.

Of Note: Judge Milan Smith pens a terrific analysis of the legislative history of the federal child porn statute, and the jurisdictional requirements of the precise language used. The case is a huge win and should be required reading for anyone mulling a challenge to the “jurisdictional hook” of any statute. Note, however, that this is not a broad invalidation of the federal child porn statutes – Wright presents some pretty unique facts. The agent in Wright accessed the images using “mIRC:”a very specific file-sharing client that “linked” the two machines. That is a very different system than, for example, downloading images off of a web page, or e-mailing porn. Both of these methods would have almost certainly created a jurisdictional hook under the Wright analysis.

How to Use: AFPDs Williams & Rademacher are formidable defense duo, and this lengthy opinion wades through their many additional challenges – with some good language and results. On the jurisdictional front, Judge Smith rejects the government’s argument that any use of the internet is always enough provide the jurisdictional hook for a charge. Id. at *11. Along the way he also scolds the government that the mere use of a computer is also insufficient: “Whether the defendant transported child pornography by mail, by sea, or by computer, the government must still prove it crossed state lines.” Id. at *8.

Moreover, while the defense didn’t win on this argument, Judge Smith provides a very sympathetic and quotable discussion of the defense right to introduce FRE 404(b) evidence – even against absent witnesses. Id. at *20.

Finally, Wright will be the go-to case to reverse those tight-lipped D.J.’s who summarily deny defense motions with contested evidentiary issues, with no factual findings. Id. at *13. Silence may be golden, but it’ll earn a district court a quick remand when it means that the Ninth can’t conduct a meaningful review. Id. at *12-*13.

For Further Reading: The biggest practical impact of Wright is a disappointing discussion at the end of the opinion on the financial and time limitations on computer forensic review. Id. at *24-*25. Anyone undertaking defense computer forensic review – or paying for it – should read this section, and should worry about the costs that it will generate. The defense, it appears, was sandbagged on the eve of the Wright trial, and didn’t get a needed continuance to counter a new forensic theory. Id. Their complaint fell on deaf ears on appeal. How do we avoid this situation in future cases? Empty CJA coffers, pay for scorched-earth forensic analysis, and salt the appellate record when money and time is unfairly restricted. For an interesting article worrying about electronic evidence in criminal cases, see Daniel B. Garrie, & Daniel K. Gelb, E-Discovery in Criminal Cases: A Need for Specific Rules, available here.


Image of mIRC logo from http://www.mirc.com/



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


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U.S. v. Wright, No. 08-10525 (11-4-10) (M. Smith with Hogan, Sr. D.J. for DC; concurrence by Hug). This is a child porn case that went to trial and is now appealed. Defendant was arrested and charged with numerous counts related to child porn. Defendant said he did not know it was on his computer and pointed at his roommate, whom had motive, opportunity, and intent. Upon arrest, defendant made some statements (equivocal) that the court let in. Defendant also argued for greater access to discovery. At trial, the prosecutor committed misconduct in argument and came close in other spots. As for the roomate, the court kept out 404(b) evidence that went to the roomate's expertise, motive, intent, and some damning stuff (i.e. the roomate's on-line identity was "Presumed Innocent."). The jury acquitted on most counts, but found the defendant guilty of possession of child porn under 18 U.S.C. 2252A(a)(1) and (a)(5)(B). On appeal, the 9th reversed the conviction for 2252A(a)(1) because the photos did not travel interstate; the transportation was all intra-state (the images never went over state lines). The statute has since been expanded to include interstate means of transportation, but here, the jurisdictional element was not met. On the second count, the 9th remanded as to statements. The district court failed to make the necessary factual finds of whether the defendant was or was not in custody, asked for counsel, and was coerced. The 9th acknowledged error by the government in argument but said that defense counsel's rebuttal to it was so effective that it was harmless. The 9th sidestepped the whole issue of access to discovery under the Adam Walsh Act because, in this instance, it found that the defense had ample time to review the evidence. It does not need to be equal access, just ample. As for the 404(b) evidence, the 9th stressed that a witness need not testify for 404(b) to be introduced. However, due to some equivical and confusing rulings, the review was for plain error. This was not met because. it seems, a lot of other evidence of the roomate was introduced, and so the 404(b) evidence was cumlative. Concurring, Hug would find that the district court had implicitly made rulings in denying the motion to suppress because it was a credibility determination.

Congratulations to AFPDs Heather Williams and Brian Rademacher, Arizona FPD (Tucson) for the win.

U.S. v. Hantzis, No. 05-50507 (11-4-10) (M. Smith with O'Scannlain and Gould). The 9th found that the Faretta colloquy for self representation was adequate. Moreover, the court does not have to repeat the Faretta colloquy at every hearing or at every stage (pretrial, trial stages, and sentencing).

Smith v. Mitchell, No. 04-55831 (10-29-10) (per curiam: Pregerson, Canby and Reed, D.J. D. Nev.). This is a remand (again) from the Supremes asking the 9th to reconsider its holding that, under Jackson, no rational trier of fact could have found the defendant guilty in this shaken baby prosecution. The case had come back twice before. The 9th, this third time, still said that taking all the evidence in the light most favorable to the state, and assuming the jury was rational, the evidence simply didn't prove guilt.

U.S. v. Krane, No. 10-30247 (10-29-10) (Thomas with M. Smith and Ezra, D.J. D. Hi.) This was an interlocutory appeal of a subpoena in this tax fraud case. An investment group that got served (but not charged) was ordered to turn over materials that it asserted were protected by the attorney-client privilege. The court said it was not. Up it went to the 9th, who considered whether the Perlman rule, which allows interlocutory appeals of a disinterested third party custodian of records, still survives after the Supremes decision in Mohawk Industries. The 9th said it does. Mohawk concerns the Cohen rule in collateral interlocutory appeals. Post-judgment appeals are usually sufficient to protect rights and privileges, and Cohen appeals are disfavored in light of other approaches, including contempt. Perlman deals with disinterested third parties, which will cave rather than litigate or be found in contempt. With that distinction made, the 9th then finds the issue is moot (what a disappointment) because the defendants entered a plea.

U.S. v. Leal-Felix, No. 09-50426 (11-1-10) (Goodwin with Rawlison; dissent by Bennett, D.J., N. D. Iowa).

What is a "citation"? Use of a legal precedent? A very fast horse? An award or commendation? A minor civil infraction? What about a reason to add two criminal points? The latter is the case here, where the 9th considers whether a citation for a traffic violation is akin to an arrest countable for criminal history under the guidelines. The citation was for a traffic violation on November 17, 1998. Defendant was sentenced on that and a subsequent one on November 19 to 180 days. If the citation is not an arrest, then the two violations are related under 4A1.2(a)(2). The defendant, facing sentencing under 8 U.S.C. 1326, would be in criminal history Category V and not VI. This issue has only been dealt with, surprisingly, by the 7th Circuit in U.S. v. Morgan, 354 F.3d 621 (7th Cir. 2003). Using the facile reasoning in Morgan, that the defendant there could have been taken to a stationhouse for a full custodial arrest, the 9th reasons that a traffic stop, leading to a citation, bear the hallmarks of an arrest. The person is not free to go. As such, under the guidelines, it should be intervening. Moreover, and disappointingly, the 9th reasons backwards, looking at the fact that he received imprisonment for the two traffic violations, and so were more than mere citations. The imprisonments did result in criminal history points (2) but one should not assume its nature given the related sentence. Dissenting, Judge Bennett takes the slight opinion to task, writing an 18-page dissent (with a table of contents) arguing that a "citation" does not mean an "arrest."

U.S. v. Lazarenko, No. 08-10185 (11-3-10) (Graber with Callahan and Bea). File this under "Primes Ministers, Ukraine, representation of." The defendant, the aforementioned former Ukrainian Prime Minister, was convicted on a slew of fraud counts (53), of which only a handful money-laundering and conspiracy to commit money laundering, survived appeal. This appeal concerns restitution, and the very odd stance of a co-conspirator saying he was a "victim." The so-called victim here, Peter Kiritchenko, benefitted from the defendant using his political power to crush Kiritchenko's business competitors. Kiritchenko though had to pay kick-backs to the defendant. These kick-backs, it was argued, made Kiritchenko a victim. The district court so found under the MVRA, 18 USC 3663A, and the VWPA, 18 USC 3663. The 9th looked askance at this, concluding there may be exceedingly rare situations where a co-conspirator is also a victim, but this was not one of them. As a general rule, a participant in a crime cannot get restitution. The acts of the so-called victim tainted him. The statutes do identify a victim as some who has been "harmed," but Congress surely did not intend for criminals to so profit. To be a co-conspirator and a victim, the victim has to have a minimal role, and at some point has to pass from being a participant to an object of criminal acts, such as in sex trafficking. See Sanga, 967 F.2d at 1334-35.