Monday, March 29, 2010

U.S. v. Xinidakis, No. 09-50307 (3-25-10) (Rymer joined by Wardlaw and Kennelly, D.J.). The 9th reaffirms that a district court can impose consecutive terms of imprisonment if a defendant violates concurrent terms of supervised release.

U.S. v. Maciel-Alcala, No. 09-50038 ( 3-25-10) (Wardlaw joined by Canby and Callahan). Affirming a conviction for aggravated identity theft under 18 U.S.C. 1028A, the 9th holds that the scienter for the offense requires that a defendant know that the identity he stole was of a real person, living or dead. The government does not have to prove that the defendant knew the person or knew that the person was actually living when the person's identity was stolen. In this case, the defendant used the identity of a real person, to get loans, buy a truck, secure an apartment, get phone accounts, obtain other identifications, including a birth certificate, and a Social Security card. The 9th went through what "person" meant, the statute, intent, and held that the defendant must know that it is a real person, but not that he knew him, or even if he was still living.

U.S. v. Castro, No. 09-50164 (3-26-10) (Goodwin joined by Canby and Fisher). In a reentry sentencing, the defendant had a prior under Calif. Penal Code 288(c)(1) for lewd or lascivious acts on a child 14 or 15 by a person at least ten years older than the child. The 9th considered whether this was a "crime of violence," and held was not, because it constitutes neither "sexual abuse of a minor" nor "statutory rape." The 9th compares 288(c)(1) with sexual abuse of a minor, and finds that 288(c)(1) does not contain the element of "sexual abuse." Further, lewd acts may be broader than abuse, and the age requirement does not make any sexual conduct per se abusive. As for statutory rape, the 9th finds that 288(c)(1) does not contain the requirement of a "sexual act." At a minimum, the generic definition of statutory rape requires an intentional touching not through clothing of a minor's genitalia. The sentence is vacated and remanded.

U.S. v. Dewey, No. 08-30450 (3-26-10) (Settle, D.J., joined by Kleinfeld and Tallman). The defendant was sentenced as a career offender for his part in a meth conspiracy. On appeal, he argues that his counsel was ineffective, that he was not a career offender, and that the sentence was unreasonable. Moreover, he asserts he should have been allowed to withdraw from his plea. The 9th sidesteps the IAC claim, finding that such claims need more of a record developed in post-conviction. The 9th did affirm the finding that the defendant was a career offender, because his prior drug deal sentence had imprisonment within the 15 year span. His sentence had been suspended, but he had run into trouble, and the court had reinstated the sentence and he was reincarcenated with the time frame. The defendant's sentence was also not unreasonable because the court sentenced within the guideline range, and stated that 3553 factors were considered. The defendant did not show factually why this was shocking. He argued that he was not a major drug dealer, but it was just a bare statement. He also made reference to the sentence of the codefendant, but no mention of the co-defendant's criminal history, or circumstances. Finally, the letter the defendant wrote to the court regarding the plea was not construed by the court as a motion to withdraw from the plea. At the ex parte hearing with counsel, the court so stated, and urged the defendant and counsel to talk and be prepared for sentencing. No further motion to withdraw was filed.

Friday, March 26, 2010

Case o' The Week: "Dead or Alive" - Agg ID Theft in the West: Maciel-Alcala

Players: Hard-fought case by CD Cal AFPD Alexandra W. Yates. Decision by Judge Wardlaw, joined by Judges Canby and Callahan.

Facts: Maciel was a Mexican citizen living in the U.S., under the stolen identity of Ramirez (a real human being). Id. at *1. Maciel didn’t know Ramirez. Id. Maciel used Ramirez’s identity to buy things, rent an apartment, and get loans and open cell phone accounts. Id. He also used the Ramirez identity to get identification documents. Id. One of those identification documents was a passport which Maciel used when returning from Mexico – triggering his arrest. Id.

Among other charges Maciel was indicted for agg identity theft (each count of which carries a two-year mandatory-minimum consecutive term). After his Rule 29 motion was denied, he was convicted in a bench trial. Id. at *2.

Issue(s): At trial “Maciel moved for a judgement of acquittal, contending that the government was required to prove that Maciel knew that Ramon Ramirez was a living person when he obtained Ramirez’s birth certificate and used it to obtain the passport. The district court denied the motion, and Maciel appeals.” Id. at *1. “We . . . must determine whether the word ‘person’ as used in § 1028A includes the living and the dead or whether Congress intended that the government must prove the defendant used the identification of a person he knew at the time was alive.” Id. at *2 (emphasis added).

Held: “Because we agree with the district court that the scienter element of 18 U.S.C. § 1028A requires that the government prove only that Maciel knew that Ramirez was a real person, living or deceased, when he procured the passport using Ramirez’s birth certificate, we affirm.” Id. at *1 (emphasis added).

Of Note: Judge Wardlaw undertakes an admittedly extensive statutory analysis in Maciel-Acala and concludes that conflicts within identity statutes that would arise from the defense interpretation must mean that Congress intended that a “person” is someone either living, or dead. Id. at *2 - *7. She concedes, however, real ambiguity in the term – and our guru and fellow blogger Steve Sady has taught us that ambiguity means the Rule of Lenity.

The ROL, however, gets short shrift in Maciel: the opinion dismisses it in two paragraphs, quoting language that the statute must be “grievously ambiguous” for the Rule of Lenity to apply. Id. at *8. As much as we admire Judge Wardlaw, we respectfully disagree with this particular holding. Notably, the exact same statute was ambiguous enough to trigger the Rule of Lenity in an earlier Ninth Circuit decision by Judge Silverman. See United States v. Miranda-Lopez, 532 F.3d 1034, 1040 (9th Cir. 2008). Granted, Miranda-Lopez referred to another word in § 1028A (“knowingly”), but that term doesn’t seem anymore “grievously ambiguous” than the statute’s use of the term, “person.” Notably, Judge Silverman’s analysis was later vindicated in the Supreme Court in Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009).

How to Use: Three Circuits have considered this “dead or alive” issue: the First, Eighth, and Ninth. Id. at *5. So far we’re 0-3. Nonetheless, this may be a “live” issue in an agg ID case that is going to trial anyway, to preserve for possible Supreme Court review. After all, the Flores-Figueroa case involved a 3-3 split. 129 S. Ct. at 1889-90. Who knows how the next three Circuits will swing?

For Further Reading: How long are aggravated identity theft sentences? 309 years, in one recent case (with some other charges thrown in for good measure). See article here.

(Although the defendant, Mr. Thompson, will get 46 years off with the “good time” reduction . . .)

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

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Wednesday, March 24, 2010

U.S. v. Christensen, No. 08-30120 (3-24-10) (Paez joined by Rawlison and Jenkins, D.J.). As a result of an undercover operation, the defendant was convicted for enticement of a minor to engage in sexual activity. He received an enhancement of +2 for unduly influencing a minor under the Guidelines, even though the "minor" was a FBI agent posing as an underage female. He objected to this enhancement. After the case was submitted, the Sentencing Commission amended the application note to 2G1.3(b)(2)(B) to reflect that an adjustment should not be given when the "minor" is actually an undercover agent. The 9th finds that the application note applies, and that it should apply retroactively. The 9th holds that the amendment resolved a circuit split, and that in such a case, the clearing up of conflicting interpretations should be considered a clarification, and held retroactive. The case is remanded for resentencing.

U.S. v. Denton, No. 09-50253 (3-24-10) (Bea joined by Gould and Molloy, D.J.). The defendant violated his supervised release. He physically abused his girlfriend. The state (California) did not charge the defendant but the district court found that the connduct could have been charged under California Code Sec. 273.5. A violation of this section could either be a felony or a misdemeanor. This alternative felony/misdemeanor is known as a "wobbler." If a felony, the SR violation would be a Grade A violation; if a misdemeanor, then a Grade C violation. Under California law, if charged, the wobbler is presumed to be a felony unless reduced or sentenced as a misdeamor. Here, the conduct was uncharged. The 9th holds that uncharged conduct is not presumed to be a felony. Again, this is only for "uncharged" conduct. Charged conduct is considered a felony. To "grade" the character of the uncharged conduct, the district court has to determine whether (1) a prosecutor would have charged a felony or a misdemeanor; and then (2) whether the state court would have imposed a misdemeanor rather than a felony. The factors to consider are set out in People v. Superior Court (Alvarez), 14 Cal. 4th 968, 978 (1997). Evidence can consist of affidavits from prosecutors and defense lawyers as to the nature and circumstances of the offense, results from other similar cases, and so forth. This determination focuses on the actual conduct and how it should be characterized.

Congratulations to Michael Tanaka, AFPD, from the C.D. Ca (Los Angeles).

Saturday, March 20, 2010

Case o' The Week: New Herring Too Much for Ninth To Swallow - Gonzalez

The Ninth holds back another expansion of Chief Judge Robert's Herring rule, in a denial of rehearing en banc that sparks a heated debate between the concurrence and dissent. United States v. Gonzalez, __ F.3d __, 2010 WL 917204 (9th Cir. Mar. 16, 2010) (Ord. denying rehearing en banc), (order available here).

Players: Judge Betty Fletcher concurring in denial of rehearing en banc; Judges Bea dissenting. Big win for Yakima AFPD Rebecca Pennell.

Facts: Before the Supreme Court’s decision in Arizona v. Gant, a car in which Gonzalez rode was searched; ammo was found, Gonzalez’s suppression motion was denied, he was convicted of Section 922(g), and the Ninth affirmed. See Gonzalez, 578 F.3d 1130, 1131 (9th Cir. 2009).

Cert. was sought, and the Supremes then decided Gant (limiting vehicle searches of cars when the passengers and driver are safely cuffed). The Gonzalez cert. petition was g.v.r.’ed (granted, vacated, and reversed).

On remand, the three-judge panel lead by Judge Betty Fletcher reversed the denial of the suppression motion in light of Gant. The panel also refused to let the search slide under Herring - the Supreme’s recent “good faith” case – holding that to do so would violate the Circuit’s retroactivity precedent. Id. at 1132-33. Rehearing en banc was sought.

Issue(s): (As framed by dissenting Judge Bea): “[Does the panel’s decision] disregard[ ] the Supreme Court’s decisions in Herring . . . and Krull . . . regarding when police misconduct justifies suppression of relevant evidence in a criminal trial, and [does the] panel’s decision create[ ] a split among the circuits?” 2010 WL 917204, *6 (Bea, J., dissenting). Or, as alternatively put by Judge Bea, “Does the good faith exception to the exclusionary rule apply despite the Supreme Court’s retroactivity precedents?” Id. at *15.

Held: (As stated by Judge B. Fletcher, concurring in the denial of the rehearing en banc): “Judge Bea’s dissent presents a distorted view of what this case is all about.” Id. at *1. “The panel’s decision is compelled by the Supreme Court’s retroactivity precedents and dictated by Gant. The court was right to deny en banc rehearing.” Id. at *6.

Of Note: The narrow holding of Gonzalez is that the government can’t use Herring to salvage a search that was legal under (incorrect) case law at the time of the search, but is later determined to have been unconstitutional because that case law was wrong.

The much bigger – and heated – fight is the general impact of Herring on the Ninth’s Fourth Amendment precedent. So far, so good: just last week we trumpeted a great Herring decision by Judge Beezer in Song Ja Cha. And last December some nasty Herring bits were fished out of the Monghur decision.

Sadly, as Judge Bea emphasizes in his dissent, the Ninth doesn’t always have the last word. He predicts, “If there is a silver lining to the panel’s decision to flout Supreme Court case law in Herring and Krull, it is that the panel has set the stage for the Supreme Court to review the scope of the exclusionary rule.” Id. at *8.

How to Use: The rule of Gonzalez, on the application of Herring to retroactive Fourth Amendment decisions, is so narrow it will apply to few cases (despite Judge Bea’s “sky-is-falling” laments). The lesson of Gonzalez, however, applies to any Fourth Amendment case: beware of Chief Judge Robert’s Herring rule. The government (and many judges) are anxious to extend Herring far beyond the narrow confines of the (5 - 4) case.

For Further Reading: All was not rosy, in en banc land last week. We had previously touted the great win in Nevils, where a panel lead by Judge Paez reversed a felon-in-possession conviction for insufficient evidence.

Last week Judge Ikuta lead an en banc panel that reversed that decision, and that “clarified” the Ninth Circuit’s approach toward “sufficiency of evidence” review in the process. See United States v. Nevils, __ F.3d __, 2010 WL 986790 (9th Cir. Mar. 19, 2010) (en banc), decision available here.

The Nevils en banc decision is, unfortunately, now a must-read for any Rule 29 appeal.

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


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Friday, March 19, 2010

U.S. v. Nevils, No. 06-50485 (3-19-10) (en banc) (Ikuta). In an en banc opinion, the 9th affirmed the conviction and sentence of a prohibited possessor defendant found sleeping with guns on and near his body. A panel had reversed, finding insufficient evidence because the evidence was that the defendant had passed out on the couch, and when he did, there were no guns around. In this unanimous opinion, the 9th emphasized the two-part test of Jackson v. Virginia, 443 U.S. 307 (1979), which requires an appellate court to determine whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319. The en banc opinion chides the 9th for straying from the "in the light most favorable" in the sense that it cannot re-weigh facts. All facts and conflicts must be considered in the most advantageous light for the government. It is only after all facts are resolved in favor of the government, does an appellate court consider whether any rational trier of fact could have found the elements met. In construing the evidence here, given the actual weight of the weapons, the officer saying that the defendnat reached for the weapon upon awakening, and the circumstantial evidence, a jury could have found the defendant guilty of being a prohibited possessor. The opinion does cite a line of cases where being just near or around weapons or drugs without a tie has been deemed insufficient. The 9th also found that the sentence was not unreasonable.

U.S. v. Hofus, No. 09-10076 (3-19-10) (Hawkins joined by M. Smith; dissent by Noonan). The defendant was using texts to supposedly entice an underage girl to have sexual activity with him. The girl had "sexted" some photos to a friend, and the defendant had somehow learned this and was threatening exposure unless sexual activity took place. The FBI became involved, and the defendant was eventually arrested on a park bench while waiting to rendezvous with the girl. On appeal, the defendant argued that the court erred in its "substantial step" instruction. The court used the model instruction; the defendant wanted an instruction that formulated the substantial step as being an action of such substantiality that, unless frustrated, the crime would have been committed. The 9th found no error; nor did the 9th find error in the failure of the court to require a unanimity instruction for the substantial step. The 9th fractured though on the issue of the defense expert. The defendant called an expert that testified that the acts of the defendant were not grooming; about fantasy based communications; and that he did not have abnormal interest in youthful women with some secondary sexual characteristics. The court barred, and the 9th affirmed, testimony about the actual intent of the defendant at the time or whether he would have engaged in a sexual act. The 9th reasoned that the testimony would have been irrelevant, because the statute only required an intent to persuade the minor under 2422. Noonan, dissenting, would have found the testimony relevant and would have permitted it.

U.S. v. Rocha, No. 08-50175 (3-18-10) (Bybee with T. Nelson and M. Smith). Defendant assaulted another inmate at FCI-Victorville during a prison brawl. As caught on videotape, the defendant grabbed the ankles of the victim, pulled them, causing the victim to fall to the concrete fall. The victim later died from knife wounds. The defendant was charged with assault to commit murder, assault with a dangerous weapon, and with an assimilated crime of assault by means of force to cause great bodily injury. He was acquitted of assault to commit murder, but convicted of the other two charges. The 9th reverses the conviction. The 9th holds that the defendant could not be tried under the Assimilative Crime Act, because Congress had defined assault, and had pretty much precluded application of state law by its comprehensiveness. The 9th examined the structure of the federal assault statute, 18 U.S.C. 113, and determined that it had a graduate degree of seriousness, and that Congress had seemingly covered the acts. The fact that a state offense might have a different focus, or formulation, does not permit it to wedge its way into a scheme structured by Congress. The 9th also, importantly, holds that hands cannot be considered a dangerous weapon. The 9th looked at previous decisions, that recognized that objects of seemingly innocuous use could have latent danger when put to bad use. However, the dividing line is that they are objects. The 9th considered other circuits' decisions, dealing with teeth, and HIV, as well as state precedents. The majority of states hold that a dangerous weapon must be some object. The 9th reasoned that if the weapon could be hands, or a body part, then basically all assaults would be with a dangerous weapon. The 9th also was not willing to let the jury decide the issue on a case-by-case basis. The requirement is an object for it to be a dangerous weapon.

Wednesday, March 17, 2010

U.S. v. Maggi / U.S. v. Mann, Jr., Nos. 08-30223 / 09-30052 (3-16-10) (McKeown joined by Hawkins and Bybee). These are interesting, and important, cases when it comes to crimes arising from Indian jurisdiction, the Major Crimes Act, and the element of whether the defendant is an Indian. Under the Major Crimes Act, 18 U.S.C. 1153, federal jurisdiction requires that the defendant be an Indian because jurisdiction is premised not on tribal self-regulation but on federal regulation of criminal conduct involving Indian interests. U.S. v. Antelope. There is no definition of who is an Indian; rather, the 9th has developed a framework for evaluating Indian status involving (1) the presence of some Indian blood; and (2) tribal or government recognition. The leading 9th cases are U.S. v. Bruce, 394 F.3d 1215 (9th Cir. 2005) and more recently, U.S. v. Cruz, 554 F.3d 840 (9th Cir. 2009).

The case here involved an aggravated sexual assault (Mann) and an assault with a dangerous weapon (Maggi). Each was separate. Each defendant argued that he was not an Indian. The 9th agreed for each, but for different reasons.

In Mann's case, Mann was a member of a tribe NOT recognized by the federal government. The tribe has a history; the tribe was recognized by the state; but unless the federal government recognizes the tribe, he is not considered an Indian for federal jurisdictional purposes. The reasoning is that under Antelope, the determination of who is an "Indian" is political, not racial or ethnic.

In Maggi's case, the defendant argued that he only had 1/64 Indian blood. This meant that only one great-great-great-great-great-grandparent was a full-blooded Indian, and the other 63 had no Indian blood. The 9th considers what quantum of blood is required to be an Indian, a determination the court obviously had not taste for. Previous 9th cases had gone as low as 1/8th. The 1/64th was a cause of concern. The 9th, however, sidestepped this issue because it looked at the second prong, which was tribal and government recognition, and found this was wanting. The 9th compared the contacts to Cruz, where the recognition was found to be so weak as to fail. Here, the defendant had status as an attenuated limited descendant from a tribe; had one instance of using the Indian Health Services; had been prosecuted in tribal court but with no evidence of the results, or the determination of status; and second hand testimony that he had participated in some tribal rituals. This sparse collection, which did not include enrollment, employment, education, or further involvement, could not support the second prong.
The 9th, therefore, vacated the convictions and reversed the denial of the motions to acquit.

U.S. v. Gonzalez, No. 07-30098 (3-16-10). The 9th denies a request for a rehearing. Usually this would not be noted in an opinion summary. However, the denial led to a spirited concurrence, and a roaring dissent. The case involved a remand from the Supremes concerning a Gant issue (search of vehicle incident to arrest). The panel found that the search was not incident to arrest, and that Gant applied. First, the dissent is examined. The dissent, written by Bea, and joined by O'Scannlain, Kleinfeld, Gould, Tallman, Bybee, and Callahan, accuses the panel and 9th of disregarding Herring and imposing the exclusionary rule on a good faith mistake by the police. The costs, bemoans the dissent, are too high, and that reliance on a line of cases permitting searches of cars when there was an arrest should not be taken out on the officers. The concurrence to the denial of en banc review, lashes out against the dissentt to make sure that the public does not get a distorted view of the panel's decision. The concurrence, authored by B. Fletcher, and joined by Paez, and N. Smith, accuses Judge Bea (named!) of presenting "a distorted view" of the decision, and that his use of Herring and Illinois v. Krull "is wrong." It is rare that such calling out occurs, but the issues are engaged here. The concurrence points out that the dissent re-argues the losing minority in Gant and that its reliance on Krull concerned reliance on a statute and not the misreading of precedent that was the basis of Gant. Moreover, the panel followed established precedent in applying new Fourth Amendment decision to appeals in the pipeline.

Sunday, March 14, 2010

Case o' The Week: Ninth Provides Valuable Herring-Aid, Song Ja Cha

Judge Beezer authors a good case on what constitutes an unreasonable delay of execution of a search warrant. United States v. Song Ja Cha, __ F.3d __, 2010 WL 775238 (9th Cir. Mar. 9, 2010), decision available here.

Cha is a great case, however, on Herring and its application (or rather, on when this unfortunate new Supreme Court rule doesn't apply).

Players: Decision by Judge Beezer.

Facts: Guam police investigated the “Blue House Lounge” on reports that the owners had refused to return an employee’s passport. Id. at *1. Suspecting prostitution, the police arrested one owner, Ms. Cha, and “seized” the place. Id. at *2. Mr. Cha returned home (attached to the Blue House Lounge) but was denied entrance by the police – even to get his diabetes medicine. Id. at *2. The police worked on a warrant, searched around for a magistrate, and finally got around to executing the warrant 26 hours later. Id. at *2-*3. The Chas were charged with sex trafficking and prostitution-related crimes. Id. at *1.

Issue(s): “The magistrate judge concluded that, although the police had probable cause to seize these premises while they obtained a warrant, the warrantless seizure was unreasonably long in violation of the Fourth Amendment of the U.S. Constitution. The district court agreed . . . and the United States brought an interlocutory appeal . . . .” Id. at *1.

Held: “We conclude that the seizure of the Cha residence, which lasted a minimum of 26.5 hours, was constitutionally unreasonable and that suppression of the evidence was warranted. We therefore affirm.” Id.

Of Note: The core holding of Song Ja Cha balancing test for unreasonable length of seizures clearly favors the defense. is good, but not surprising: the Supreme’s McArthur balancing test clearly favors the defense. See id. at *3. Of greater interest is the Court’s rejection of Herring – Chief Justice Robert's regrettable new rule tolerating “negligent” police conduct that results in Fourth Amendment violations. Id. at *7.

The Ninth explains that Herring “only applies to isolated police negligence,” and here the conduct of the Guam police was “deliberate, culpable, and systematic.” Id. Judge Beezer emphasizes that the case involves a mistake of law, not a mistake of fact: mistakes of law are exactly what suppression is meant to deter. Id. at *7-*8. He also finds that the cops’ reckless conduct precludes application of the Herring rule. Id. at *8. Finally, the Court chides the government on its request for remand to develop facts for the Herring analysis, despite a controlling Ninth Circuit case on the issue: “Herring does not require this Circuit to reanalyze and re-balance each category of cases to which it has applied the exclusionary rule over the past decades.” Id. at *9.

The Herring analysis in Song Ja Cha joins Gonzalez, 578 F.3d 1130 (9th Cir. 2009) in the line of great Ninth Circuit decisions limiting the expansion of the dangerous Herring decision into Fourth Amendment jurisprudence.

How to Use: Song Ja Cha reminds us of a great rule for “seizure delay” cases – it isn’t relevant “whether the evidence is the ‘product’ or ‘fruit’ of the unconstitutional delay.” Id. at *6. For example, in this case the Court agrees with the government that the evidence suppressed isn’t fruit of the poisonous tree, because the evidence seized wasn’t the “fruit” of the unlawful seizure. Id. at *5. The defense still wins, though, because “Although not excludable as fruit of the poisonous tree, the evidence must be suppressed as a direct result of the constitutional violation.” Id. at *6. Not the most intuitive of distinctions. Here’s the gist: for suppression, it doesn’t matter that the government didn’t gain any advantage from the unconstitutionally-delayed seizure. If there is a unconstitutional seizure due to delay, the defense gets to skip the poisonous tree analysis and go straight to suppression. Id. at *5.

For Further Reading: When Herring came out, one commentator described it as “one of the most important rulings in that field in the last quarter century.” See Scotusblog article here. That could be right – Herring is a developing into a hot fight in the Ninth. The government has filed a p.f.r. in the Gonzalez case mentioned above, and the Court has asked (unfortunately) asked for responsive briefing.

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


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Thursday, March 11, 2010

Stanley v. Schriro, No. 06-99009 (3-10-10) (Rawlison; concurrence by B. Fletcher; partial concurrence and partial dissent by Kleinfeld). The 9th grants a remand for an evidentiary hearing on an IAC sentencing claim in this capital murder petition. The petitioner murdered his wife and young child in 1986. He got life on his wife's murder and death for the child's. The 9th affirms the denial of his guilt phase claims, holding that the state court's determination that he was not in custody during his confession was not unreasonable. There was a question as to the aggressiveness of questioning by the police -- but not enough to overturn the determination under AEDPA. As for sentencing, though, the 9th held that counsel's seemingly failure to make use of psychological evidence of a disassociative state could have had a prejudicial impact on mitigation. This evidence could well have gone to negate premeditation. The opinion also chides dissent's focus on the gruesome facts of the case as opposed to the legal standards, and rebukes the dissent for implying that the claims are too old, despite the fact that the petitioner met all his AEDPA deadlines, and it was the courts that held this case in deciding. B. Fletcher, concurring, would expand the remand to include a hearing on the failure to call any mental health experts at sentencing. In dissent, Kleinfeld argues that the issue is really about the supplementing of mental mitigation evidence already before the sentencing judge from the guilt trial. He also bemoans the length of time this case has taken, and recounts the factual basis of the offense at length.
Congratulations to AFPD Paula Harms and AFPD Sylvia Lett of the Arizona FPD (CHU Unit).

Wednesday, March 10, 2010

Valdovinos v. McGrath, No. 08-15918 (3-10-10) (B. Fletcher with Kleinfeld and Duffy, D.J.). The petitioner was convicted of first-degree murder for a shooting outside of a San Jose nightclub. Several witnesses identified the petitioner as the shooter. Their identifications had inconsistences as to clothes and build. At trial, it was revealed that the witnesses had been presented with a photo line-up of the petitioner, one had failed to identify him, and the other expressed doubts. Later, it also came to light that prosecutors had an anonymous letter which tied the victim into a drug debt, and there was evidence of cocaine baggies found close by. The prosecutor also had a statement that one of the witnesses interviewed admitted he lied to the police to cover for himself. The 9th found that these were Brady violations, and that they were prejudicial. As the opinion concludes: "A pattern of non-disclosure permeated the proceedings against [petitioner]." The prosecution deprived petitioner of due process.

Tuesday, March 09, 2010

U.S. v. Arias-Ordonez, No. 08-10259 (3-8-10) (Schroeder with Berzon and Shadur, D.J.). The defendant was mislead and misinformed by the government as to his administrative remedies for a relatively minor misdemeanor offense of possession. As the opinion states:

This government appeal arises in the context of an apparently routine prosecution for re-entry after removal under 8 U.S.C. § 1326 that turned out to be anything but routine. The alien did everything he was instructed to do to effectuate his removal, after it had been ordered in absentia. He even sent his mother to report for removal in his place while he obtained proper identification. But the order instructing him to report for removal misinformed him that he had no administrative remedies and he was never told that he had a right to re-open to seek voluntary departure. The government does not contest the district court’s ruling that the flaws in the underlying removal prejudiced the alien. The government argues, however, that the subsequent summary reinstatements of the flawed removal can support the criminal indictment for illegal re-entry. We think not and affirm the district court’s dismissal of the indictment.
The 9th makes clear that the original removal order was flawed because of the government's prejudicial and affirmative misleading of the defendant. The seven subsequent reinstatements of the removal could not provide an independent basis because they reinstated the removal that had not complied with due process.

Congratulations to AFPD Elizabeth Falk, N.D. Ca. FPD (San Francisco) for the win.
U.S. v. Cha, No. 09-10147 (3-9-10) (Beezer with Graber and Fisher). The 9th holds that a 26.5 hour seizure of a house was constitutionally unreasonable, and the evidence must be suppressed. In Guam, the defendants were investigated and the wife was arrested on charges of sex trafficking, conspiracy, and travel for prostitution for running a brothel. The police caught wind of the activities when they investigated a report that women were being held against their will. The investigation led to due process, and Song Cha was arrested and taken to the police station. The house was seized. The husband (and later co-defendant) was not allowed back in. Over the next day, the police leisurely prepared the application for warrant, taking their time and not displaying any rush. In the meantime, the husband was barred for hours from getting his medication, and then only with an escort. He had no place to go. He called his lawyer, who was also unable to get the police to allow him back in. The 9th agreed with the district court that the seizure was too long. Although there was probable cause, the police had no other reason to excuse such a delay. The 9th looked at the systematic failure of the police to prepare the warrant quickly, and described the police conduct as systematically unreasonable and reckless. Herring does not excuse the actions, because that was a one-time negligent act of not checking if the warrant was quashed, while here, the police conduct was sufficiently culpable to warrant suppression. Although probable cause did exist before the seizure, an unreasonable seizure can lead to suppression for deterrence, and that was the case here.

U.S. v. Molina, no. 09-10066 (3-8-10) (Hug with Wallace and Clifton). The 9th affirmed the admission of hearsay as a result of stipulation. The defendant was charged with alien smuggling. He had counsel, and entered into a plea with a stipulation that the agents could offer hearsay as to what mat-wits stated, and that the mat-wits could be released. The defendant entered into a plea, and was sentenced, only to protest after pronouncement that he had "not done that much" and asserted a defense of duress. The plea and sentence were vacated and the case set for trial. At trial, the defendant was convicted, with the evidence coming in through the agents of what the mat-wits said about the defendant's role. On appeal, the 9th affirmed the convictions, reasoning that the defendant had counsel, and had voluntarily entered into the agreement, with full understanding. He could not receive the windfall of entering into a stipulation, and once the mat-wits were gone, of backing out.

Rhoads v. Henry, No. 07-99203, 07-99022, 07-35808 (3-8-10) (Rymer with Gould and Bybee). The 9th affirmed the denial of the petition of these two capital petitions, and one non-capital petition. The 9th found no Brady violations, no Miranda violations, and no IAC as to mitigation.

Monday, March 08, 2010

Smith v. Mahoney, No. 94-99003 (3-5-10) (Thomas joined by McKeown; dissent by B. Fletcher). The petitioner has been on death row since 1984 for a double murder. He turned down a plea agreement that would have resulted in a 17-year actual sentence, and instead chose to plead guilty and ask for death. He received a death sentence, but then reconsidered. He argued that he had ineffective counsel, and that his mental state at the time, deep depression, rendered his decision questionable. Over the years, he had resentencings. The 9th considers both his IAC claim and his challenge to the sentence. The 9th finds clearly that his counsel had been ineffective in advising him as to defenses, whether to go to trial, investigation, and mitigation. And yet, the 9th finds that it was without prejudice! As to the sentencing claims, the 9th denied the claim that the sentencing judge failed to consider mitigating evidence of proportionality, bias of the sentencing judge, and a Lackey claim asserting that length of incarceration violated the 8th amendment. The majority did end by praising petitioner's rehabilitation and change of life, but said that it was for clemency. In dissent, B. Fletcher argues that there was prejudice in the ineffectiveness, and that it permeated every aspect of the case up to and including the guilty plea and request for death. Fletcher also makes the case that a Lachey claim was viable here.

Sunday, March 07, 2010

Case o' The Week: Ninth Won't "Stand" for Late-Raised Issues (Usually): Fourth Amendment Standing & Reyes-Bosque

The party didn't raise a Fourth Amendment issue in the district court, didn't offer opposing facts or testimony putting the issue in play, and didn't get around to litigating the issue until it finally hit the Ninth Circuit. Waived?

Nope. (The party was the government). United States v. Reyes-Bosque, __ F.3d __, 2010 WL 681839 (9th Cir. Mar. 1, 2010), decision available here.

Players: Decision by visiting Senior Sixth Cir. Judge Eugene Edward Siler, Jr. (right), joined by Judges Shroeder and Ikuta.

Facts: After smuggled aliens escaped out of a stash house they were discovered by the Border Patrol. Id. at *1. The agents took the aliens back to a two-bedroom unit where they had been staying (“Unit 4") and conducted a warrantless search. Id. at *1-*2. They found evidence of alien smuggling. Id. at *2. A “sweep” of the adjacent unit (“Unit 3") revealed Reyes-Bosque, and a (hiding) Mexican national, Ramirez-Esqueda, who later admitted that he was working in Reyes-Bosque’s alien-smuggling operation. Id. at *3.

Both men’s Fourth Amendment motions were denied, and they were convicted at separate trials of a variety of alien-smuggling offenses. Id. at *1, *5.

Issue(s): “Ramiriez-Esqueda argues that he has standing to challenge the search of Unit 3, because he was an overnight guest of Unit 3.” Id. at *6.

Held: “Because Ramirez-Esqueda has not presented sufficient evidence to prove that he was an overnight guest at Unit 3 and has not argued that he has standing to challenge the search on any other grounds, we conclude that he does not have standing to challenge the search of Unit 3.” Id. at *7.

Of Note: Defendant Ramirez-Esqueda did present evidence that he was an overnight guest: his own statement. Id. at *6. That evidence was undisputed – there were no contrary declarations and no opposing testimony from government witnesses. Id. at *6. Nonetheless, visiting Judge Siler here finds that Ramirez-Esqueda lacked standing – because, among other things, the defendant wasn’t “resting” inside the Unit around “8:30 or 9:00 a.m.” Id. at *6.

The panel here admittedly relies on the Ninth’s 1995 Armenta decision in reaching its standing decision, but the result is nonetheless a frustrating swipe at Fourth Amendment protections. The defense is tasked with not only establishing standing, but disproving alternate theories for the defendant’s presence in Unit 3 despite the government's failure to present evidence opposing the defendant's statement. Id. at *6.

How to Use: What exactly did the government argue in the district court, when it contested Ramirez-Esqueda’s standing? Well, turns out “the government did not raise the issue of standing before the district court.” Id. at *6 n.3 (emphasis added).

If the government didn’t contest the defendant’s standing during the suppression litigation, how in the world did Ramirez-Esqueda lose on “standing” on appeal? Because, assures the Ninth, “we may consider it now.” Id.

Here’s Judge Siler’s explanation of the rule: “So long as the government did not rely on acts contrary to its standing argument before the district court, the standing issue is properly before us on appeal.” Id. The (curious) rule on the government’s ability to first challenge standing on appeal seems to hinge on whether the defense, or the government, won the suppression litigation in the district court. Id.; see also United States v. Taketa, 923 F.2d 665, 670 (9th Cir. 1991) (“Sherwin and Spilotro involved government appeals of suppression motions that had been granted. It was proper that in that circumstance the appellate courts declined to consider government arguments untimely raised. In this case, by contrast, we consider a defendant’s appeal of a suppression motion that was denied, when the question was raised in the district court. The burden of demonstrating that the evidence should have been suppressed is upon the appellants.”)

The punch line is to remember Reyes-Bosque when developing the appellate record on a motion to suppress. Even if an AUSA or district court doesn’t bother about “standing” while below, worry about the Ninth reaching out and snagging the issue on appeal (particularly troubling when, as here, it is on an under-developed factual record).

For Further Reading: Poet Ruth Stone would not be granted standing by the Ninth – she was up too early, didn’t have a key, and felt “isolated like a rabbit” in the home. See Ruth Stone, “Overnight Guest,” Poetry Magazine, June 1998, available here.

Image of the Hon. Eugene Edward Siler, Jr. from

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


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Tuesday, March 02, 2010

U.S. v. Reyes-Bosque & Ramirez-Esqueda, No. 08-50253; 08-50330 (3-1-10) (Siler joined by Schroeder and Ikuta). The 9th affirms alien smuggling convictions and denials of motions to suppress searches and statements. The case presents interesting discussions of what constitutes "standing" to challenge a search given that defendant Ramirez-Esqueda contended that he was an "overnight guest" in the unit searched. The 9th affirmed the lack of standing because the evidence was insufficient to show that he was a guest; rather, he was likely scouting locations for safe houses. The statements were found not to be in violation of Miranda, Edwards, and Seibert. The defendant Ramirez-Esqueda did not allege a deliberate two-step approach. The 9th also found that the admission of hearsay testimony was not plain error. Defendant Reyes-Bosque asked for a new lawyer at the end of the trial, but his displeasure was not from a breakdown in the relationship, but from the defendant's unhappiness with the outcome of the trial.