Monday, May 31, 2010

Case o' The Week: Nontestimonial (enough) - Orozco-Acosta, Confrontation Clause, and Warrants of Removal

Because of the sheer volume of prosecutions, trials, and appeals (and the aggressiveness of defenders fighting these cases) "simple" illegal reentry cases generate a disproportionate share of federal law on evidence, criminal procedure, and sentencing. An example of this phenomenon is a disappointing new decision on the reach -- or limits -- of the Supreme Court's recent decisions on the Confrontation Clause. United States v. Orozco-Acosta, __ F.3d __, No. 09-50192, 2010 WL 2089474 (9th Cir. May 26, 2010), decision available here.

Players: Hard-fought appeal by San Diego Assistant Federal Public Defender James Fife.

Facts: Samuel Orozco-Acosta, a man of “advanced age,” was arrested in the desert near the Mexican border with women’s underwear in his pocket (a peculiar fact that the panel relies upon to uphold a high sentence). Id. at *1, *7.

At the illegal reentry trial the defense raised a number of challenges, including a Confrontation Clause objection to the government’s use of a “warrant of removal.” Id. at *1. This “warrant” is a document completed by a border agent (not called at trial), representing that Orozco-Acosta had previously physically been deported. Id. at *3.

The Ninth had previously held that these warrants are non-testimonial (and thus admissible after Crawford) because they are not made in anticipation of litigation. See United States v. Bahena-Cardenas, 411 F.3d 1067 (9th Cir. 2005). The district court overruled the defense objections, admitted the warrant, and Orozco-Acosta was convicted. Id. at *1.

Issue(s): It is “Orozco-Acosta’s contention that [the Supreme Court’s recent decision in] Melendez-Diaz has so undermined Bahena-Cardenas that we should depart from its holding.” Id. at *4.

Held: “[N]othing in Melendez-Diaz is clearly irreconcilable with Bahena-Cardena’s holding that a warrant of removal is ‘nontestimonial because it was not made in anticipation of litigation.” Id. at *5.

Of Note: The “warrant of removal” is not the only Confrontation Clause decision in Orozco-Acosta. The government also introduced – over defense objection – a “Certificate of Non-Existence.” Id. This certificate is a document prepared by an ICE official which stated that Orozco-Acosta had never applied for permission to enter the United States. Id. at *2. The good news is that the government conceded on appeal that the introduction of these certificates violates the Confrontation Clause. Id. at *2. (The bad news is that it was harmless error). Id. at *2-*3.

How to Use: Orozco-Acosta follows a circuit trend of hedging-in the Supreme Court’s recent Confrontation Clause cases of Crawford and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).

The key holding of Orozco-Acosta is that Border agents’ “warrants of removal” aren’t “prepared for litigation” – so they escape the Crawford ban on admission of “testimonial” hearsay. Note, however, that in arriving at that conclusion the Court takes judicial notice that over 280,000 aliens were removed in 2006. About 17,000 were prosecuted for illegal reentry in the same time period. Id. at *5 n.4 (about 6%). If a law-enforcement document is offered in a future case, use that very low statistic as the benchmark for evaluating whether or not the document is “prepared for litigation” while fighting the Confrontation Clause fight.

For Further Reading: It is an interesting bar argument: which is more absurdly unjust, crack cocaine or illegal reentry sentencing? Based on the sheer volume of defendants, there’s a strong argument for the latter. For a superb article on the inanity of the federal illegal reentry guideline, see San Diego AFPD Doug Keller’s recent piece, Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases Are Unjust and Unjustified (and Unreasonable Too), 51 B.C. L. Rev. 719 (2010) pdf available here.

Doug’s analysis reveals just how unfair a sentence scheme is when it is driven largely by prior convictions, and it shows how our Latino clients bear the brunt of this uniquely unjust guideline. Merits addition as Exhibit A in our Section 1326 sentencing memos.

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


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Thursday, May 27, 2010

U.S. v. Blinkinsop, No. 09-30120 (10-27-10)(Goodwin with Hawkins and N. Smith). The defendant pled guilty to receiving child porn and received a 97-month sentence (bottom of the guidelines) and numerous special conditions of SR. On appeal, the 9th held that the sentence was reasonable under the circumstances, and the court had indeed considered and weighed the 3553 factors. The 9th did vacate two of the SR conditions and remanded limited to the conditions. The conditions related to a bar on the use of a computer (#13) and contact with children (#4). The complete bar on computers violates U.S. v. Riley, 576 F.3d 1046 (9th Cir. 2009) and must be amended. The contact with children does not take into account defendant's request to attend his own children's school activities. This barring condition can be amended to include safeguards in such circumstances.
Congratulations to AFPD David Ness of D. Mont. (Great Falls).

Wednesday, May 26, 2010

U.S. v. Orozco-Mesa, No. 09-50192 (5-26-10) (Canby joined by Gould and Ikuta). In a 1326 prosecution, the government introduced a certificate of nonexistence of record (CNR) to show that there was no record that the defendant had sought or had been granted permission to reenter the US. The introduction of the CHR violate defendant's confrontation rights under Crawford and under Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) (lab tech affidavit). The government concedes error, but argues that it was harmless. The 9th agrees. The 9th states that the defendant could have cross-examined other agents who had seen the A-file, and so would have been aware of any permission granted to reentry. Moreover, the defendant made a statement that he never sought such permission (a bad fact), and the defendant was found in the desert, leading one to assume that he knew he did not have permission to reenter. As for defendant's other argument, that the warrant of removal required confrontation, the 9th held that the warrant was non-testimonial, because it was an administrative record made not in anticipation of litigation and was a routine cataloguing of an unambiguous factual matter. The 9th also rejected issues on jury instruction for circumstantial evidence and the sentence.

Tuesday, May 25, 2010

Ponce v. Felker, No. 08-56218 (5-24-10) (Graber joined by B. Fletcher and Pregerson). The petitioner raised a confrontation claim. The state trial court had permitted testimony under the "forfeiture by wrongdoing" exception. However, this exception was narrowed by the Supremes in Giles v. California, 128 S. Ct. 2678 (2008) to apply only if the defendant specifically intended to prevent the witness from testifying, and not simply by the act of murder of the victim. So, does the petitioner get relief? No, because Giles established a new rule that did not apply retroactively. The state's interpretation, therefore, at the time of the appeal was reasonable in not requiring specific intent, and there was no contrary federal precedent. As such, petitioner loses under AEDPA.

Lunberry v. Hornbeak, No. 08-17576 (5-25-10) (Noonan joined by M. Smith, and concurrence by Hawkins). A cold case, false confessions, and a possible "other suspect" all lead the 9th to reverse a denial of a habaes petition and grant relief. The petitioner's husband was murdered in 1992, and she was found at a mall with kids. There was evidence pointing to drugs and a drug deal, but nothing came of it. Years later (2001), the case was reopened. The police interviewed petitioner quite forcefully and, after denying shooting her husband, she eventually said "yes," she did it. She then recanted. A defense expert opined that it was a false confession. However, the defense never called the expert. The trial court precluded evidence of another suspect, including a confession. The 9th granted relief on the preclusion of the other suspect's "confession" under Chambers. This violated the established due process rights to present a defense. Hawkins concurs to state that he would find IAC because of the failure to call the defense expert on false confessions.

Taylor v. Sisto, No. 09-15341 (5-25-10) (Noonan joined by Berzon; dissent by Ikuta). The 9th grants a petition on a conviction for assaulting a peace officer. The relief was granted on a voir dire issue: the state trial court gave a pre-instruction to the prospective jurors in which he told them to take their past experiences with how people act, behave, and why, their opinions, plus biases and prejudices, and place them in a box and to not bring them into the courtroom. The image of the box came up repeatedly during voir dire, in which jurors kept saying that they had trouble not referring to their past experiences. The problem with this is that it rendered the jurors automatons. The state courts deemed the pre-instruction "odd" but found no error. The 9th did. The 9th reasoned that jurors had to bring in their life experiences, and an instruction forbidding them not to make reference to their own backgrounds was wrong. A defendant was entitled to a juror with a range of diversity of experiences. In dissent, Ikuta argues that the petitioner had not objected, and that the pre-instruction did not run afoul of Supreme Court precedent.

Saturday, May 22, 2010

Case o' The Week: Maxwell, Mental Illness, & Murder - Sua Sponte Competency Evals

Maxwell, mental illness, and murder. Makes for a catchy Beatles' tune, and for a great habeas decision. Maxwell v. Roe, __ F.3d __, 2010 WL 1997700 (9th Cir. May 20, 2010), decision available here.

Players: Decision by Judge Paez, joined by Judges Pregerson and Noonan.

Facts: Maxwell and three armed men confronted and killed a car thief. Id. at *1. Defense counsel expressed doubts about his client’s competency, so before trial a judge had five shrinks conduct competency evaluations. Id. Four shrinks found Maxwell to be feigning or embellishing mental illness, while the fifth found him incompetent. Id.

The court found him competent; a year later he went to trial. Id.

During the trial defense counsel said Maxwell’s condition was worsening. Before trial even started the court had Maxwell removed for dangerous and erratic behavior. Id. at *2. Reviewing the earlier psych reports, the trial judge concluded Maxwell was feigning – the trial continued. Id.

Maxwell then tried to commit suicide with a razor blade; the trial judge concluded Maxwell was feigning – the trial continued. Id.

With Maxwell off on a psych hold, the trial continued in his absence and a jury that never saw the defendant convicted him of first degree murder. Id. He was sentenced to 25 years to life. (A co-D was acquitted, another convicted of second-degree murder). Id.

The California appellate court and Supreme Court denied his appeals and habeas petitions. Id. Maxwell sought federal habeas relief; the district court denied the petition. Id.

Issue(s): “Maxwell argues that at the time of his . . . state court trial for first degree murder he was incompetent to stand trial and that the state court denied him due process in failing to hold, sua sponte, a competency hearing. At the time of trial, Maxwell had a history of mental illness, frequently refused to take his prescribed antipsychotic medications, was unable to verbally or physically control himself in the courtroom, and exhibited increasingly paranoid and psychotic behavior that impaired his communication with defense counsel and reasoning regarding his defense. Furthermore, during the trial, Maxwell attempted suicide and spent a substantial portion of the trial involuntarily committed to a hospital psychiatric ward. Despite these circumstances, the trial judge never doubted Maxwell’s competence.” Id. at *1.

Held: “Because we conclude that the state appellate court's decision to affirm the trial court's finding that Maxwell was not entitled to a hearing on his competence was based on an unreasonable determination of the facts in light of the evidence known by the trial judge at the time of trial and an unreasonable application of federal law as established by Drope, and Pate v. Robinson, 383 U.S. 375 (1966), we reverse and remand.” Id.

Of Note: The heart of Maxwell is the principle that a defendant has “a constitutional due process right not to be tried or convicted while incompetent to stand trial.” Id. The real value of Maxwell, however, is that a trial court must be an active player in guaranteeing that right. It doesn’t matter that defense counsel didn’t ask for a hearing – “where the evidence raises a bone fide doubt as a defendant’s competence to stand trial, a trial judge has an independent duty to conduct a competency hearing on his own motion.” Id. at *10 (internal quotations and citation omitted) (emphasis in original). These holdings have particular punch for a “normal” trial case, because they arise out of the very deferential AEDPA standards required of a federal habeas petition.

How to Use: After Maxwell a smart trial judge will always err on the side of caution and have a competency hearing despite defense counsel’s silence. What if defense counsel doesn’t want a competency hearing, though? Maxwell sharpens the sticky wicket defense counsel face when trying to steer a (marginally) competent client through criminal proceedings to try to snag a good deal or minimize exposure. This scenario is the Kobayashi Maru for federal defense counsel – and Maxwell, inadvertently, makes this delicate dance even more difficult.

For Further Reading: For an interesting discussion of these condundrums, see Josephine Ross, Autonomy Versus a Client’s Best Interests: The Defense Lawyer’s Dilemma When Mentally Ill Clients Seek to Control Their Defense, 35 Am. Crim. Law Report. 1343 (Summer 1998), on Westlaw at 35 AMCRLR 1343.

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


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Friday, May 21, 2010

Maxwell v. Roe, No. 08-55534 (5-20-10) (Paez with Pregerson and Noonan). The petitioner had a history of mental illness, exhibited strange and bizarre behaviors during trial, and even attempted suicide. The trial court still thought he was feigning and refused to hold a competency hearing. This refusal, in light of the evidence, was unreasonable. A defendant has the due process right not to be tried nor convicted while incompetent. The state courts failed to determine if he was competent. As such, because 12 years has elapsed, the remedy is for a new trial rather than trying to look back and make a competency determination.

Thursday, May 20, 2010

U.S. v. Gallaher, No. 09-30193 (5-19-10) (Fisher with Berzon; dissent by Tashima). Is a capital crime a capital crime for statute of limitations purposes if the defendant cannot jurisdictionally get the death penalty? "Yes," holds the majority, in an Indian Major Crimes Act prosecution under 18 U.S.C. 1153. The defendant chocked the victim in 1991 after the victim had earlier urinated in the defendant's shared house. The defendant was indicted on first degree murder 14 years later, in 2005. The statute of limitations under 18 U.S.C. 3282 is five years unless otherwise explicitly stated otherwise. Under 3281, there is no statute of limitations if the offense is punishable by death. Congress enacted the federal death penalty in 1994, and delegated to Indian tribes an "opt in" provision for those eligible offenses occurring under the Major Crimes Act. The tribe in question here -- the Confederated Tribes of the Colville Reservation -- has not opted in (only one tribe has, the Sac and Fox). The defendant plead to involuntary manslaughter, but conditionally appealed the statute of limitations issue. The 9th reasoned that "capital offense" denotes the seriousness of the offense, and just because capital punishment cannot be imposed, it does not mean that the offense cannot be categorized as capital. This was the precedent for bail determinationsin so catagorized capital offenses after Furman imposed a moratorium on capital offenses. Moreover, the plain text of 18 U.S.C. 1111 states that first degree murder may be punishable by death, and so the offense should be so categorized, even if there is a jurisdictional bar. Policy matters also weigh in finding no statute of limitations, because the tribes should not be forced to decide between opting in to get the no limitations period and the death penalty, to which they are opposed. States do not have limitations periods for first degree murder, and so to put the tribes on equal footing with the states, and to harmonize criminal justice among the jurisdictions, there should be limitations period. The bottom line: although there is a jurisdictional bar to the death penalty under the Major Crimes Act here, first degree murder is still punishable by the death penalty, and so there is no limitations period. Tashima, dissenting, argues that since the possibility of the death penalty is not available jurisdictionally, the offense is not punishable by death, and hence there should be a five year statute of limitations. This is a part of the delegation responsibility.

Saturday, May 15, 2010

Case o' The Week: Left, Right, and Scienter -- Castagana and Mens Rea in Threats Statute

What do Jon Stewart and the Honorable Speaker of the House Nancy Pelosi have in common? One thing they'd rather not have shared: they both were the recipients of "threat" letters containing white powder from a mentally-ill defendant, Chad Conrad Castagana. Unfortunately, his prosecution results in an opinion that is another blow to meaningful mens rea standards in federal criminal statutes. United States v. Castagana, __ F.3d __, 2010 WL 1930231 (9th Cir. May 14, 2010), decision available here.

Players: Hard-fought appeal by CD Cal AFPD Elizabeth Newman.

Facts: Castagana sent fourteen letters containing threatening notes and a white powder (a soap mixture). Id. at *1. These letters were sent to comedians like Jon Stewart and Letterman, politicians like Nancy Pelosi, and others. Id. “The letters threatened their recipients and expressed hostility to their assumed left-wing political views.” Id. at *1.

He was charged with a violation of the federal threats, or “hoax” statute: 18 USC § 1038(a)(1). Id. At trial, “Castagana defended on the ground that his mental disorders prevented him from forming the intent required for a violation of § 1038(a)(1). He introduced evidence of a long history of a severe mental condition.” Id. at *2. Castagana sought an instruction “that required the government, in order to convict, to prove that Castagana intended his targets, as reasonable persons, to believe that the envelopes contained anthrax.” Id.

The instruction was denied; Castagana, convicted. Id.

Issue(s): “On appeal, Castagana challenges the district court’s rejection of his requested jury instruction, which would have required the jury, in order to convict, to find that he specifically intended the recipients of his letters reasonably to believe that they contained anthrax.” Id. at *1.

Held: “We conclude that § 1038(a)(1) contains no such specific intent element, and we accordingly affirm Castagana’s conviction.” Id.

Of Note: Castagana is a heavy statutory interpretation case, and as such, is arguably limited to the uniquely broad language of this threats statute. Unfortunately, the real sting of Castagana is Judge Canby’s refusal to “read the scienter requirement to each of the statutory elements that criminalize otherwise innocent conduct.” Id. at *3 (discussing X-Citement Video). Future mens rea fights will have to distinguish Castagana, arguing that this hoax statute only escaped X-Citement Video’s higher scienter requirements because its language was unambiguous.

How to Use: Judge Canby dodges a First Amendment attack by finding that the issue was waived for failure to bring it in the district or appellate court. Id. at *5. Hence, that very interesting constitutional challenge survives. An issue for a future threats case is whether a “proscription of expressive conduct or speech was a violation of the First Amendment in the absence of a requirement of intent to intimidate, which intent would render their conduct or speech an unprotected threat.” Id. at *5.

(It is a wonderful irony that some federal Public Defender will almost certainly be the lead champion of the sacred First Amendment right to harshly criticize liberals, in a future case that involves a mentally-ill client threatening “left-wing” politicians).

For Further Reading: What do the (conservative) Heritage Foundation and the (liberal) National Association of Criminal Defense Lawyers have in common? Well, among other things, they share a healthy distrust of government and an unshakable belief in individual rights.

The latest illustration of their common views is a thought-provoking study by Brian Walsh and Tiffany Joslyn: “Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law,” available here . This report is an exhaustive analysis of the devolution of the mens rea requirement in federal criminal statutes.

Read this May 5th report alongside Castagana’s recital of the legislative history of the threats statute (and Congress’s rejection of a real mens rea requirement in 1038(a)(1)), for very recent proof of a legislative trend that both conservatives and liberals agree is disturbing.

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


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Friday, May 14, 2010

U.S. v. Castagana, No. 08-50057 (5-14-10)(Canby joined by Wardlaw and Callahan). The defendant sent letters to politicians and celebrities that were threatening and contain a white powdery substance. The jury convicted on 18 U.S.C. 1038(a)(1) (threats). On appeal, defendant argued that he should have gotten an instruction that required the defendant to specifically intend the recipients to believe that the letters contained anthrax. His argument was that he did not so intend, but to him it was like a gimmick or political speech to indicate that liberals had become "toxic." The 9th rejected the argument, holding that the statute's use of "intent" went to intending to convey false or misleading information; it did not extend to the subjective belief of the defendant of what the recipient may have reasonably believed. This is an objective standard.

Monday, May 10, 2010

Dawn Eagle v. Yerington Paiute tribe, No. 08-16786 (5-7-10) (Thompson with Kozinski and McKeown). This is a habeas case from a tribal conviction for child abuse. The petitioner argues that the tribe failed to prove that she was an Indian, and that was an essential element of the offense. The 9th concluded that Indian status was a requirement for jurisdiction, but was not an element of the offense. The petitioner failed to raise the Indian status prior to trial, as was required by the tribe.

Reynolds v. Thomas, No. 08-35810 (5-7-10)(Ikuta with Bea and a concurrence by W. Fletcher). This is a habeas case on the issue of whether and how the BOP considers whether a state sentence runs concurrently with the federal when the federal sentence was imposed first. The 9th affirmed the denial, holding that the BOP has broad discretion to determine what counted and what did not, and that its methods were sound. In a concurrence, Fletcher is troubled with a separation of powers issue, where the BOP gets to determine whether a sentence runs concurrently or consecutively. It did not matter here because BOP asked the federal judge, who did not respond at first, and so the sentence ran consectively (until he reconsidered a third time, when it was deemed concurrent). BOP should not be making the decisions. Fletcher stresses that Congress should step in and clarify the powers. He joins the 2nd and 8th in so asking.

Sunday, May 09, 2010

Case o' The Week: Ninth Takes Pot-Shot at Marijuana Conviction -- Stever, Brady, and Sixth Amendment Right to Present a Defense

The Oregon FPD earns an important victory this week in a great case illustrating the interplay of Brady and the Sixth Amendment right to present a defense. United States v. Stever,__ F.3d __, No. 09-30004, 2010 WL 1757926 (9th Cir. May 4, 2010), decision available here.

Players: Big win by D. Or. AFPDs Bryan Lessley and Tonia Moro.

Facts: Officers discovered a 7,000-plant marijuana grow on rural property on which Stever lived. Id. at *1. Some of the plants were found on adjoining Forest Service land, along with gear to support the grow. Id. Two Hispanic men fled when the officers arrived, leaving behind guns, a phone, an alien ID card, and a wallet that had Stever’s business card and Stever’s mother’s cell number. Id. Stever told the police that he had hired one of the fleeing aliens to work on a generator. Id.

Before trial, Stever moved for discovery on Mexican drug trafficking organizations (DTOs) growing marijuana in Eastern Oregon. Id. The government refused, and the district court refused to compel disclosure. Id. at *2. Moreover, the court prohibited the defense from arguing that it was actually a Mexican DTO that was (solely) responsible. Id. Stever was convicted.

Issue(s): “Stever sought to defend on the ground that the marijuana growing operation found on an isolated corner of his mother’s 400-acre property was the work of one of the Mexican drug trafficking organizations . . . that had recently infiltrated Oregon. He was prevented from doing so by two district court rulings, the first denying him discovery related to the operations of DTOs and the second declaring that defense off-limits. We consider whether these rulings violated Rule 16 of the Federal Rules of Criminal Procedure, Stever’s rights under Brady v. Maryland, . . . and Stever’s Sixth Amendment right to make a defense.” Id. at *1.

Held: 1.Discovery:The district court’s conclusion was illogical. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” FED. R. EVID. 401 (emphasis added). The requested evidence, if it existed, tended to show that a Mexican DTO planted the marijuana. It also tended to make it more probable that Stever was not involved, as there would then be an alternative explanation for the grow that would not entail the consent, much less the participation, of any of the Stevers.Id. at *4.

2. Sixth Amendment / Right to Present a Defense: Having denied Stever the opportunity to explore this discovery avenue, the district court declared a range of defense theories off-limits, without considering in any detail the available evidence it was excluding. [I]ts reason for doing so—that any such evidence was necessarily irrelevant—was deeply flawed. Stever was not only prevented from putting on evidence important to his defense . . . ; he was prevented from making his defense at all. We must conclude that Stever’s Sixth Amendment rights were violated.Id. at *7

Of Note: One of many notable aspects of Judge Berzon’s excellent opinion is her systematic rebuttal of the government’s discovery arguments. For example, she rejects the government’s whine that evidence of the Mexican DTOs may have simply meant that Stever conspired with the Hispanic men. Id. at *4. That conclusion is “certainly possible,” she concedes, but “Stever correctly argues that his guilt is less likely with Mexican DTO involvement than without it . . . . “ Id. at *4. That’s great language – Brady doesn’t only apply to evidence capable of one, exonerating interpretation. If evidence is material and makes guilt less likely, that’s enough to trigger Brady.

How to Use: Constitutionalize! That mantra, drilled into us by our instructors in training seminars, is borne out in Stever. Judge Berzon observes that the case would have simply been remanded if this was just discovery error, but the combination of Brady error and the restraints on the Sixth Amendment right to present a defense meant the conviction is reversed. Stever is a textbook example of how to preserve and constitutionalize trial objections to win on appeal.

For Further Reading: Stever was right: pot is now a common sight, nestled among the desert sagebrush. (photo above right). See, Remote Oregon Counties Gearing Up for Another Busy Pot-Growing Season”, article available here.

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


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Thursday, May 06, 2010

Collins v. Runnels, No. 08-17299 (5-5-10) (Hug with Kozinski and Clifton). The 9th concludes that there is no constitutional standard binding on the states requiring severance in cases where defendants present mutually antagonistic defenses. The petitioner here was convicted of first degree murder. He had an alibi defense while the co-defendant argued duress (pointing at petitioner). California has a statute that presumes and favors joint trials. The state court had limiting instructions, and the state appellate courts found this to be sufficient. Under AEDPA, the 9th finds that the state's holding was not unreasonable.

U.S. v. Mousavi, No. 08-50454 (5-5-10) (Ikuta with Gould and George, D.J.). The 9th looks at "willfully" in the context of the IEEPA (the Iranian embargo). The 9th concludes that willfulness requires the government to prove beyond a reasonable doubt that the defendant acted with knowledge that his conduct was unlawful, but not that the defendant was aware of a specific licensing requirement. In this case, the 9th concludes that the evidence was sufficient for a conviction -- the defendant was a sophisticated business operator, who had contacts with Iran, and took steps to avoid the embargo.

Wednesday, May 05, 2010

U.S. vs. Struckman, No. 08-30463 (5-4-10) (Berzon joined by Farris and D. Nelson). A neighbor calls about a man jumping a fence and being in a backyard. The police respond, go to the house, and see a man meeting the description: white, black jacket, red backpack. One officer jumped the fence, another smashed the padlock, and the man, complying, says "its my house." Do the police verify? No. They handcuff him, search him, and search the backpack. A weapon and an empty magazine is found. The defendant was a felon in possession. The district court upheld the warrantless search under Terry. After trial, the defendant received a 17-year sentence. The 9th reversed the suppression ruling, suppressed, reversed, and vacated. In a comprehensive opinion, the 9th said that Terry was inapplicable. The backyard was fenced, and next to the house, and so was the curtilage. There was no probable cause for burglary because under the state statute, there was no entry into the house, or burglary tools, or attempt. There might be reasonable suspicion, but probable cause and exigent circumstances are required for a house/curtilage search without a warrant. There was none here for burglary. However, there might be a weak case for probable cause for second-degree trespassing. Even if there was, the government still needed an exigent exception, specifically exigent circumstances (avoiding destruction of evidence, hot pursuit, officer safety, need to prevent escape). None of those existed here. Moreover, the police could have simply asked the defendant his name, and then verified that he indeed lived there. The 9th anticipates the cry about the needs of the police officers, but the 9th stresses that the Fourth Amendment protections are only available if the defendant has standing in a house/curtilage. The defendant had standing here: he was the homeowner standing in the curtilage. The police could have easily determined that he owne the house.

A good opinion and overview of house/curtilage Fourth Amendment warrantless protections.

U.S. vs. Stever, No. 09-30004 (5-4-10) (Berzon with Farris and D. Nelson). This is a paen to repeated discovery requests. Defense counsel wanted evidence that helped the defendant, was Brady, and was part of his defense. What did the defense want? Evidence that Mexican trafficking organizations had recently infiltrated Oregon, and were responsible for the surreptitious planting of 7000+ marijuana plants on defendant's 40 acre tract bordering Forest Service land. It looked pretty bleak for the defendant. He had contact with suspects who fled (leaving behind i.d.), tire tracks that matched his truck, and actions in taking the plot back from a neighbor who had been grazing cattle on it. However, these, and other pieces of circumstantial evidence, could be explained. The suspects had been previously hired to work on a generator; tire tracks matched 50% of the trucks in the area; and there was no direct tie to the defendant. Most important, there was evidence that traffickers were secretly growing marijuana in public and private lands. The defense asked for it, but the government said "no." The court, when asked to compel, said "no," too, and added that the defense could not raise the defense at all. On appeal, the 9th (Berzon writing again...see above) reversed the conviction. The 9th found that the request fell under Brady, and was part of Fed.R.Crim.P. 16, and that the denial of the defense violated due process. The 9th easily found error, and also found prejudice. The evidence was relevant, could be introduced (citing drug experts on traffickers), and was critical. An excellent case, with Crosby, to argue for the right to mount a defense, and to get the relevant evidence from the government.

Congratulations to AFPDs Bryan Lessley and Tonia Moro of FPD Oregon office.

Monday, May 03, 2010

U.S. v. Coronado, No. 09-50154 (5-3-10) (Schroeder with Fisher and N. Smith). The precedential ripples from Begay v. U.S., 553 US 137 (2008) continues. In Begay, the Supremes held that under ACCA, gross negligence is not the same as "serious potential risk of physical injury to another." It held in the context of a DUI, that it did not. The language of serious potential risk is mirrored in the Guidelines 4B1.2. Here, the defendant received a +6 for being a prohibited possessor with a prior crime of violence. His prior was discharging a firearm with gross negligence. The 9th holds that the state statute had a provision for gross recklessness, and did not require an intent to harm. The gross recklessness is not the same as acting with purpose, violence, or aggression. The 9th joins other circuits that have considered this. The case is vacated and remanded for resentencing.

U.S. v. Rich, No. 08-30153 (5-3-10) (O'Scannlain with N. Smith and Woole, Sr. D.J.). The defendant died while his case for fraud -- a lot of fraud -- was on appeal. Since the appellate process had not been completed, his conviction and special assessment is vacated. What about restitution? There were millions ordered. That too is vacated. However, a receivership stipulation, entered into by the defendant prior to the conviction, remains in force.

U.S. v. Moreland, No. 05-30541 (Hug with McKeown and W. Fletcher). This is back on remand from the Supremes in light of U.S. v. Santos, 128 S.Ct. 2020 (2008) (money laundering). The 9th affirms the fraud convictions but reverses the defendant's money laundering convictions on counts 26 and 27 because the jury instructions did not require that the proceeds be profits. As a result, the sentence is vacated and remanded as well. All the other counts are affirmed.

Case o' The Week: Promises, promises - Franklin, Pleas, Probation & Parole Searches

How much is a D.A.'s promise to stave off the feds worth? Not much -- and even less if the promise isn't in writing. United States v. Franklin,__ F.3d __, 2010 WL 1711497 (9th Cir. April 29, 2010), decision available here.

Players: Decision by Judge Clifton (above left), joined by Judges Alarcón and Kleinfeld.

Facts: Franklin was on “community custody” in Washington (akin to probation or parole). Id. at *1. He reported that he was homeless, then failed to call his “Community Corrections Officer” (“CCO”). Id. Franklin’s baby’s mother called the CCO and said he was living in a specific hotel room, and had a gun and ammo. Id. A hotel clerk confirmed that Franklin had rented the room and was staying there; a search revealed the gun. Id. Franklin pleaded guilty in state court pursuant to a plea agreement to unlawful possession of a firearm. Id. In the plea agreement was a handwritten change that stated, “The sentence holds Mr. Franklin accountable for his actions.” Id. at *4.

Franklin was then brought federal on a felon-in-possession charge. Id. at *1. “He filed a motion to suppress evidence obtained in the search of the motel room and a motion to dismiss based on the state plea agreement.” Id. at *2. Both motions were denied, and Franklin entered a “conditional plea” (like Bigfoot, something that is rumored to exist in the N.D. Cal., but with few confirmed sightings).

Issue(s): 1. Search: “Franklin appeals the denial of his motion to suppress on the ground that officers lacked probable cause to believe that he was residing in the motel room searched without a warrant.” Id. at *1. “The contested issue is whether the officers had sufficient basis to believe that Room 254 was Franklin’s residence.” Id.

2. Plea Agreement: “Franklin also argues that the federal charges should have been dismissed because the agreement which led to his guilty plea in state court provided that no federal charges would be pursued.” Id. at *4.

Held: 1. Search: “There was ample evidence to support the district court’s finding that officers had probable cause to believe that Room 254 was Franklin’s residence at the time of the search. The motion to suppress was properly denied.” Id. at *4.

2. Plea Agreement: “We agree with the district court that the plea agreement was unambiguous and did not reflect any agreement not to prosecute Franklin on federal charges. Under Clark, that ends the matter, and there is no need or basis for us to consider extrinsic evidence.” Id. at *5.

Of Note: Missing from the opinion is a key, troubling fact: Franklin’s public defender swore in affidavit that the D.A. agreed, in plea negotiations, “that the federal government would not be pursuing charges out of this case.” 2009 WL 6083056, *9, (Appellant's Opening Brief). That promise, swore the P.D., was reflected in the handwritten change to the plea agreement. Id.

For folks practicing in state court in Trigger Lock districts, Franklin is a real problem and deserves a close look. With the Petite Policy effectively in abeyance, Franklin makes for grim reading.

How to Use: Probation and parole searches are interesting beasts. While the searches for probationers and parolees themselves are subject to much lower Fourth Amendment standards, when these folks are staying at residences belonging to others the Ninth has “applied a relatively stringent standard in determining what constitutes probable cause that a residence belongs to a person on supervised release.” Id. at *3 (internal citations and quotations omitted). The rationale for this heightened standard is “at least some concern for the rights of that other person.” Id.

Franklin has a disappointing result, Judge Clifton is careful in the opinion to acknowledge and explain the different standard that applies when probationers/parolees are staying in someone else’s home. Id. (collecting authority). Keep an eye out for this better Fourth Amendment standard when battling a probation, parole, or supervised release search.

For Further Reading: The Ninth’s involvement with homelessness isn’t limited to affirming the denial of suppression motions. For years Judge Harry Pregerson has been a tireless advocate for the homeless, helping to build shelters, transitional housing, child care centers, and job training centers for folks down on their luck. He was recognized for his half-century of work by the University of California last Friday, when he received the Peter E. Haas Public Service award. See article here.His acceptance speech should be available on-line soon (though that well-edited script bears little resemblance to the spontaneous, inspiring, and hilarious remarks that the Honorable HP actually delivered at Cal.)

Image of the Honorable Richard R. Clifton from

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


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