Thursday, April 29, 2010

U.S. v. Franklin, No. 09-30041 (4-29-10) (Clifton with Kleinfeld and Alarcon). The 9th affirms denial of a motion to suppress. The defendant absconded from state probation. The probation officer heard through a CI that defendant was in a motel, with weapons. The CI had proven trustworthy in the past. The probation officer got a police officer to verify that the defendant had indeed checked in. The probation and officers knocked on the door, the defendant answered, was arrested, and the room searched. A weapon was found. The 9th had no trouble finding probable cause for the warrant to search. The defendant had taken up residence in the motel room, and there were sufficient facts to get a warrant.
Moor v. Palmer, No. 07-16045 (4-29-30) (Wallace joined by Hug and Clifton). The petitioner was convicted of a sexual offense. He got paroled, was revoked, and then denied parole again. The 9th held that this was not double jeopardy. The petitioner also challenged the requirement that he pass a psychological screening for parole. This requirement was passed by the state legislature after his conviction. The 9th held that the state supreme court finding that this was not ex post facto and was not unreasonable, and so affirmed the petition's denial.
U.S. v. Lee, No. 09-10126 (4-28-10) (D. Nelson with Farris and Bea). The defendant was charged with fraud in connection with a false identification conspiracy. The defendant got a driver's license using a fake tax I.D. number. The district court suppressed the driver's license because the government official that gave it to the defendant did not know it was forged at the time, and he would have to for a conspiracy. This was reversed by the 9th, stating that a defendant can use an innocent or unknowing person to effectuate the fraud. This was done here. The official that produces the document that is false need not know it was fake at the time.

Saturday, April 24, 2010

Case o' The Week: Aptly-named Strickland Case Sets New IAC Traps - Modified Categorical / Taylor Analysis

Strickland v. Washington is, of course, the lead Supreme Court case on the ineffective assistance of counsel. Now, ironically, an en banc court of the Ninth Circuit creates a new trap for ineffective assistance in another "Strickland" case, in the context of the Taylor modified categorical analysis. United States v. Strickland, 2010 WL 1529414 (9th Cir. April 19, 2010) (en banc), decision available here.

Players: Hard-fought appeal by Tony Gallagher, demoted in the opinion from the Montana Federal Defender to a Federal Defendant, id. at *1, and AFPD Michael Donahue. Id.

Decision by Judge Callahan (right), concurrences by C.J. Kozinski and (Supreme Court candidate) Judge Thomas. Dissent by Judge Berzon joined by Judges Schroeder, Reinhardt and in part by Judge Thomas.

Facts: Strickland pleaded guilty to possession and receipt of child porn. Id. at *1. The weird procedural history is poorly explained in the opinion – the PSR seems to have come out before the plea, yet there’s no mention of a pre-plea PSR. Id.

In any event, at sentencing a prior conviction for a Maryland sex-crime dramatically increased Strickland’s sentence. Id. Because that Maryland offense was not categorically a predicate offense, the district court undertook a modified categorical analysis. Id. Among the documents the government relied upon in the modified categorical analysis was a docket sheet that stated, “Defendant is a child sex offender.” Id. The district court relied upon this Baltimore docket sheet to deem the Maryland prior a predicate offense, and over the defendant’s objection sentenced him to 240 months. Id. at *2. A three-judge panel affirmed. Id.

Issue(s): “On appeal, Strickland argues that the government failed to produce judicially noticeable documents sufficient to prove that his Maryland conviction for child abuse was a predicate offense . . . He contends that the court misapplied the modified categorical approach and improperly relied on the PSR, [and] the Maryland docket sheet . . . when determining that his prior conviction was a predicate offense.” Id. at *2.

Held: “We determine that the docket sheet . . . clearly establishes that Strickland pleaded guilty to sexual abuse of a minor, and thus the district court properly gave him an enhanced sentence. In reaching this conclusion we determine that: (1) pursuant to our decision in Snellenberger, the district court properly considered the docket sheet; (2) in this instance, there was no need for the docket sheet to be certified; and (3) the docket sheet clearly indicates that Strickland pleaded guilty to sexual abuse of a minor.” Id. at *3.

“[W]e hold that even without certification, a docket sheet, which Maryland law requires be prepared and maintained by a court clerk, and which defendant has a right to review and correct, is of sufficient reliability under
Shepard and Snellenberger.Id. at *5.

Of Note: An en banc opinion, proofread eleven times by eleven Ninth Circuit judges and eleven Ninth Circuit law clerks, has a glaring typo in its first line, at the expense of a respected Federal Defender. Given this unfortunate nit, it is richly ironic that the majority vests such confidence in the accuracy of a single harried Baltimore court clerk churning out an uncertified docket sheet that no one actually reads.

Judge Berzon has the far better argument in her persuasive dissent, when she vigorously questions the reliability of the docket sheets and disputes their use after Shepard. For us in the trenches, Snellenberger and Strickland have created, out of whole cloth, a duty of professional responsibility that no one ever knew existed – reviewing and correcting a frazzled court clerk’s often-erroneous docket.

The good news? This line of authority opens up a whole new world of IAC and habeas claims when defense counsel didn’t review the docket.

How to Use: Also in the mix during the modified categorical analysis were two sex registration forms signed by Strickland. Id. at *1. The Ninth did “not reach the question of whether the district court could consider Strickland’s sex offender registration forms.” Id. at *1. Beware, however, when evaluating a client’s exposure that these sex-registration forms may someday be enough to qualify a prior as a predicate offense.

In his concurrence, Chief Judge Kozinski certainly thinks they would qualify, id. at *8, though the dissenters persuasively argue that registration forms don’t fall within the ambit of Shepard, id. at *9.

For Further Reading: Just to assure you that poor Tony is in fact a Defender, not a Defendant, take a look at his impressive creds here.

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

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Monday, April 19, 2010

Case o' The Week: A "Glock"-en-schpeal - Alderman and Crime of Violence after Begay

Does taking someone's car and necklace at gunpoint sound like a violent felony? It does to Judge Kleinfeld (left) in a new categorical analysis decision, United States v. Alderman,__ F.3d __, 2010 WL1490832 (9th Cir. April 15, 2010), decision available here.

Of course, fair to ask why the facts of a prior conviction are floating around a categorical analysis at all . . . .

Players: Decision by Judge Kleinfeld, joined by Judges O'Scannlain and Berzon.

Facts: In a videotaped episode, a man named Montgomery pulled up on Alderman, attacked him, and beat him thoroughly with his fists. Id. at *1. Alderman regrouped, pulled out a Glock, and let nine shots fly at Montgomery and his car – largely missing the assailant, thankfully. Id.

Alderman pleaded guilty to being a felon-in-possession, and at sentencing suffered two enhancements: an upward adjustment of the offense level for having had two previous “crime of violence” convictions, and an upward adjustment for using the Glock in the course of another felony (shooting at Montgomery). Id. The prior conviction at issue was a Washington theft prior.

Despite having pleaded guilty in a plea agreement, Alderman appealed (Seattle, apparently, has an enlightened USAO that allows sentencing appeals from plea agreements – a progressive policy that will hopefully make its way south).

Issue(s): “Alderman argues that his prior theft conviction could not properly be counted as a “crime of violence” under the guidelines, and that shooting at Montgomery could not properly be deemed a felony.” Id. at *1.

Held: “We hold that the first degree theft crime under Washington law of which Alderman was convicted is a ‘crime of violence’ for purposes of the guidelines enhancement, and that the shooting in this case was an assault under Washington law. Id.

Of Note: There were two Ninth Circuit cases essentially on point on the issue of whether the theft prior was a “crime of violence:” Jennings and Wofford. Id. at *2. The real question in the case was whether the Supreme Court’s 2008 decision in Begay narrowed the definition of “violent felony” and thus undermined that authority. Id. at *2.

Sadly, not. Id.

You can see which way the wind is blowing when the Court begins its categorical analysis with a description of Alderman’s prior felony, where he had used a gun to steal a man’s necklace and car at a K.F.C. Id. at *1. Of course, the facts of the prior conviction have precisely nothing to do with the question of whether the Washington theft offense is categorically a crime of violence, but their prominence in the opinion illustrates a common problem: a threshold, sub-silencio (or here, not-so-silencio) exploration of the specific facts of a prior conviction before the objective, “categorical” first step of the Taylor analysis. Add to Alderman a reference to the horrible, recent, and not-final Terrell decision, and the case joins the list of Ninth Circuit decisions that seem to be veering from the Supreme Court’s trend in the analysis of the definition of “crime of violence.”

How to Use: At the Aguila Montes de Oca en banc argument, the judges’ attitudes ranged from bafflement to frustration to conspicuous annoyance when the AUSA arguing the case was not prepared to address the Supreme Court’s recent decision in Johnson – a decision that discusses the crime of violence analysis at length. As Chief Judge Kozinski quipped, “as much as we may want to ignore the Supreme Court, we are, unfortunately, expected to follow its decisions.”

It is deja vu all over again when reading Alderman, which makes not even a passing reference to Johnson. It is a peculiar omission in a new circuit “crime of violence” opinion, as is the failure to identify any statistical support for the Court’s theories on the “risk” associated with the Washington theft crime (data arguably required after Chambers). Keep slugging at these post-Begay challenges: Alderman may warrant a second-look, and Terrell certainly does – the dust hasn’t settled on this area of litigation.

For Further Reading: In a decision that surprised many, the comparatively-young Judge Kleinfeld recently announced that he is taking senior status – permitting the northernmost Obama appellate appointment. See article here.

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


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Thursday, April 15, 2010

U.S. v. Velasquez-Bosque, No. 09-50126 (4-15-10) (Ikuta with Canby and Gould). The 9th holds that carjacking under Cal. Penal Code 215 is a categorical crime of violence. The 9th looks to its decision in U.S. v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008) which held that the state code for robbery under 211 was a crime of violence because it tracked both generic robbery and extortion in its elements. The distinctions drawn in this case, that the carjacking might be temporary or the victim not conscious at the time, were unavailing.
U.S. v. Alderman, No. 08-30322 (4-15-10) (Kleinfeld with O'Scannlain and Berzon). The 9th holds that first degree theft under Washington State law was indeed a crime of violence for the sentencing enhancement as a felon-in-possession. The defendant tried to distinguish prior precedent that so held because of the intervening decision in Begay, 128 US 1581 (2008). The 9th held that theft "from the person" is an aggressive element. The assault here was also a felony (the defendant shot at the victim 9 times).

Wednesday, April 14, 2010

Mora-Meraz v. Thomas, No. 09-35413 (4-14-10)(Tallman with Paez and M. Smith). Petitioner asked to be admitted into the BOP's drug abuse program. BOP said "no" because he did not meet the requirements for admission; namely, he had not used the same substance within 12 months of incarceration. He had been convicted of possession with intent, but his PSR indicated that he had not used substances within a year. He challenged the decision, arguing that BOP's requirements did not comply with the regulatory notice and comment and that it was not rational. The 9th affirmed the denial of the petition, holding that BOP's unwritten 12-month rule was not inconsistent with BOP regulations, was interpretive, and was exempt from notice and comment. The 9th also held that the requirement, based on DSM-IVR, was rational in requiring a verified documented drug abuse problem.

Tuesday, April 13, 2010

Hein v. Sullivan, et al., No. 07-56277 (4-12-10) (Trager, D.J., joined by Kleinfeld and Tallman). In a murder case, the state prosecutor failed to disclose a Brady immunity letter and committed misconduct in closing. The 9th, however, holds that over a 2-month trial, such prosecutorial missteps did not undermine the fairness of the trial. The 9th adopts a "reasonable probability" of a different result to analyze the misconduct and Brady and found that the result would have been the same. The 9th reasons that the prosecution presented the only theory or theme that fit. The impeachment from an immunity letter, and the misconduct of attacking counsel, defendants, and evidence misstatements were, well, regretable, but the petitions were denied.

Sunday, April 11, 2010

Case o' The Week: Not the "End of story as far as" Ninth is Concerned - Andrews and Restitution

Judge Alarcón (left) gives us a good restitution holding within a well-written decision; a useful primer for litigating the restitution issues. United States v. Andrews,__ F.3d __, 2009 WL 1338138 (9th Cir. April 7, 2010), decision available here.

Players: Nice win for ED Wa. & Idaho AFPD Matthew Campbell.

Facts: Andrews pleaded guilty to assault resulting in serious bodily injury. Id. at *1. By the time of sentencing the victim had already been reimbursed for medical expenses and lost income by a state victim-compensation agency. Id. at *1. At the restitution hearing the district court ordered Andrews to reimburse this state agency over $54,000 for its payments. Id.

The defense objected, arguing that the victim’s disabilities were not, in fact, proximately caused by the injuries from the assault. Id. at *2. In support of this argument, the defense attempted to call an expert to testify regarding the actual reason for the victim’s cognitive disorder: was it the head injury from the assault, or another pre-existing condition? Id.

The district court refused to permit the expert testimony, concluding that the state agency had already made that determination about the causal link and had paid the bills: “End of story as far as I am concerned.” Id. at *3. Andrews appealed the restitution order.

“Andrews . . . maintains that the district court erred in not allowing him to present an expert witness at the restitution proceeding in an effort to demonstrate that his actions were not the proximate cause of [the victim’s] disability.” Id. at *2 (internal quotations and citation omitted).

Held: “[The hearing transcript] demonstrate that the district court apparently found that Andrew’s conduct was the sole cause of [the victim’s] mental and physical condition without considering contrary evidence proffered by Andrews. The district court’s finding violated the court’s duty to resolve any dispute concerning the cause of [the victim’s] ailments by a preponderance of the evidence . . . . Thus, the district court abused its discretion in rejecting the expert witness’s testimony. Upon remand, the district court should permit Andrews to present any evidence indicating that his criminal conduct did not cause [the victim’s] mental and physical condition.” Id. at *3 (citation omitted).

Of Note: There is an interesting side issue in Andrews: can a federal district court order that restitution be paid directly to a third party – in this case, the state victim-agency? Id. at *4. Judges Clifton and Fernandez think so – they specially joined to argue that the controlling federal statutes permit such payment. Id. The defendant and dissenting Judge Alarcón disagreed with the majority. Id. at *9-*10. The panel’s decision has now created a circuit split on this issue. Id. at *10 (Alarcón , J., dissenting) (discussing United States v. Speakman, 594 F.3d 1165, 1174-77 (10th Cir. 2010)).

The majority rejects this whole dispute as an ‘angels on the head of a pin’ argument - after all, if the victim directly received the restitution he’d just have to cough it up to reimburse the state agency anyway. That argument, however, ignores the reality that a district court will tend to explicitly (as here in Andrews) or implicitly defer to the findings of a third party (like a state agency) who is already out-of-pocket to reimburse a victim. Judge Alarcón has the better argument - preserve this challenge with an eye towards some future en banc action on the brewing circuit split.

How to Use: Andrews is a clean, well-written opinion on restitution - Judge Alarcón recites the standards for determining restitution, explains the burden of proof, and recites the degree of causation required for a victim to obtain restitution. Id. at *2. It is a good “primer” case for how to determination restitution in the Ninth Circuit and is a useful starting point for restitution briefing and litigation.

For Further Reading: Attorney James Marsh, of the Marsh firm, has made a cottage industry out of suing for restitution on behalf of child pornography victims. See New York Times article here. The firm has replicated filings in many federal districts, seeking restitution claims for the same victim. Federal courts, the DOJ, and the defense bar have taken notice: there are some very good orders regarding the litigation that question the causation link. See order here. Andrews could be a welcome case for the defense in the Marsh restitution litigation.

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


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Thursday, April 08, 2010

U.S. v. Juarez, No. 09-50323 (4-8-10) (per curiam with Schroeder, Fisher and N. Smith). Fugitive! The word itself conjures running from the law. It also means tolling the chain gang of supervised release. That is what this case is about. Defendant was convicted of bank robbery in 1989. He was deported in 1992. His supervised release was due to expire in 1995. Ah, but the defendant came back to the U.S. in 1993. We know because he applied for a state driver's license in a false name. He was arrested in 1994 and again in 1995, the later for robbery, for which he got 15 years. After he served his time, he was released to the federal detainer. He argued that his SR expired in 1995, before the court issued a warrant. "No," said the 9th, "because you were a fugitive." The 9th explained that he became a fugitive when he came back to the US (illegally) and failed to inform the probation officer of his change of address. Yes, that is the reasoning. The defendant had 72 hours to notify the probation office of his whereabouts when he returned. Fugitive tolling begins when the defendant absconds from supervision, making it impossible for the probation officer to supervise his actions, and ends when federal authorities are capable of resuming supervision. Direct supervision is not possible when the defendant was in Mexico, but was triggered when he returned, and then was tolled three days after it could be verified he was back in the U.S. and had not contacted his PO. The SR term does not toll only when a bench warrant is issued, but from the moment of absconding.

Wednesday, April 07, 2010

U.S. v. Andrews, No. 09-30072 (4-7-10) (opinion by Alarcon joined by Fernandez; concurrence by Clifton; dissent by Alarcon). This appeal revolves around restitution. The defendant pled guilty to assault resulting in serious bodily injury. The court ordered restitution, but refused to allow the defendant to present an expert witness as to causation for some of the victim's mental and physical diabilities. The court could not simply adopt a social agency's determination. The 9th also found that the restitution amounts for loss of function by one agency and disability by Social Security were separate and not "double-dipping." The panel fractured on whether the restitution could be paid to a third party, since the victim had already received compensation from the agency. Judges Clifton and Fernandez both thought this was permissible under the victim statutes (VWPA and MVRA). Alarcon, dissenting, would find that restitution can only be ordered to the actual crime victim.

Congratulations to Matt Campbell of the Federal Defenders of Eastern Washington & Idaho (Spokane) for the win.

U.S. v. Tello, No. 08-50579 (4-7-10) (Gould with Ikuta and George, Senior D.J.). The defendant was convicted under 18 USC 2422(b) of using means of interstate commerce to knowingly persuade a minor to engage in a sexual activity for which he can be criminally charged. The defendant lived in Arizona, and communicated with a 13-year old girl in Los Angeles. The "13 year old girl" was the usual FBI undercover agent. The defendant drove to LA and was arrested outside a bookstore, where he was to meet the girl, and take her back to Arizona for sex. He argued on appeal that the intent to commit the crime was formed in Arizona, and therefore the referenced California "criminal activity" did not meet the element of "sexual activity for which he could be charged." He contended that the sexual activity would be out of state. The 9th held that California law applies because the state law is interpreted to apply when any partial execution of the offense occurs with the state's jurisdiction.
White v. Martel, No. 08-16387 (4-7-10) (per curiam with Wallace, Graber and McKeown). Under AEDPA and section 2244(d)(2), the statute is not tolled when a petitioner's state PCR is deemed untimely. Equitable tolling also does not apply because of the petitioner's delay in not filing a federal petition, or at least a protective petition.

Tuesday, April 06, 2010

U.S. v. Valencia-Barragan, No. 09-50018 (4-6-10) (Goodwin joined by Canby and Fisher). A 1326 appeal of sentence, where the main issue is whether Wash. Rev. Code 9A.44.076(1)(rape of a child who is 12 or 13) is a crime of violence. The 9th finds that the statute is a COV. While the statute is overbroad as to statutory rape, it is a COV of sexual assault of a minor because it covers the generic offense of sexual abuse of a minor. The state statute meets the generic elements because of there is (1) sexual conduct,(2) with a minor, and (3) abuse is found per se because of the young age. The 9th also finds that the sentence imposed was not unreasonable, and that court did, in fact, consider the 3553 factors.

Saturday, April 03, 2010

Case o' The Week: Taylor-Made Analysis -- Castro and Cal Penal Code Sec. 288(c)(1)

A slow week in the Ninth lets us reach back to discuss the strong decision by Judge Goodwin in United States v. Castro, __ F.3d __, 2010 WL 1135786 (9th Cir. Mar. 26, 2010), decision available here.

(Note: decision by sitting Judge Goodwin, not by (we sincerely hope) future Judge Goodwin (Liu), above (getting some pointers from Justice Breyer)).

Decision by Judge Goodwin, joined by Judges Canby and Fisher.

Facts: Castro was convicted of attempted illegal reentry and was hit with the +16 offense level increase for having a prior “crime of violence” conviction before removal. Id. at *1. The prior was for California Penal Code § 288(c)(1), “which criminalizes lewd or lascivious acts on a child of 14 or 15 years by a person at least ten years older than the child.” Id. He was sentenced to 46 months. Id.

Issue(s): “Castro argues that a conviction under section 288(c)(1) does not constitute a ‘crime of violence’ warranting a sixteen-level increase under United States Sentencing Guideline § 2L1.2(b)(1)(A).” Id.

Held: “We hold that a conviction under California Penal Code section 288(c)(1) categorically constitutes neither ‘sexual abuse of a minor’ nor ‘statutory rape’ and therefore does not qualify as a crime of violence warranting a sixteen-level increase. We therefore vacate Castro's sentence and remand for resentencing.”Id. at *1.

Of Note: On March 25 San Diego AFPD Steve Hubachek did an masterful job defending the important Aguila-Montes de Oca decision in a Ninth Circuit en banc argument. At issue was far more than the status of California burglaries in illegal reentry sentencing: the Court is clearly looking at its own Navarro-Lopez rule barring the use of state priors that are missing an element of the “generic” federal definition of a crime. See blog describing case here.

How does Aguila-Montes de Oca relate to Judge Goodwin’s Castro decision? At the en banc argument Judge W. Fletcher’s only questions pressed Hubachek on the impact of the Navarro-Lopez rule on the line of California sex-crime decisions. The en banc argument made it clear that the Ninth is in the midst of a fight over its Taylor approach, the most important sentencing issue since Booker. Hopefully the Estrada-Espinoza line of sex-crime cases (including Castro) will survive whatever the Court decides in Aguila-Montes de Oca.

How to Use: Castro is the latest in a line of admirable Ninth Circuit decisions undertaking an intellectually-honest categorical analysis in an admittedly difficult context: sex crimes involving minors. See, e.g., Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008) (en banc). Judge Goodwin’s opinion is a good example of the “first step” of the Taylor analysis, carefully comparing the California statute to both the generic offense of “sexual abuse of a minor” and to “statutory rape.” Castro, 2010 WL 11135786, *3. It is a good, short, clean and well-written case to read and cite as a primer on how to undertake this “first step” of the Taylor analysis: the categorical approach. (Though note that the Castro opinion does not involve the Navarro-Lopez “missing element” question at issue in Aguila-Montes de Oca).

For Further Reading: Interestingly, during the Aguila-Montes de Oca en banc argument even a very strong panel of judges were occasionally as confused as us mere mortals as they wrestled with this complicated area of law. One example was some judges' worry that Aguila-Montes de Oca would “immunize” California burglaries from use in any federal sentencing statute.

Sadly (for us) a Taylor analysis for a state crime as to one federal guideline or statute does not necessarily control the result for a different federal guideline or statute. The illegal reentry guideline, for example, is a different beast than the Career Offender guideline because the latter has a “residual clause” – hence a conviction that isn’t a “crime of violence” for illegal reentry may be for Career Offender (or other federal offenses). Beware of that unfortunate reality when advising clients about sentencing exposure – a good decision like Castro may not travel well. For a recap of the Ninth’s struggle with the categorical approach, hit the link here.

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


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