Friday, July 30, 2010

Porter v. Ollison, No. 07-55305 (7-29-10) (Hart, D.J. N. Dist. Ill., with Gould and Bea). This is a post-Holland case regarding equitable tolling. The 9th considers whether there should be an evidentiary hearing to determine if counsel's actions were so egregious that the petitioner was prevented from timely filing. As the court states:

The only question is whether, on preliminary review, the federal habeas petition was properly dismissed as untimely without responsive briefing and an evidentiary hearing. The principal issue is the possible application of equitable tolling based on misconduct by an attorney who resigned from the State Bar of California (the "Bar") while facing disciplinary proceedings for running a habeas corpus "writ mill." On preliminary review, it cannot be conclusively determined that the federal petition was untimely. For the reasons that follow, we vacate the district court order denying Porter's habeas petition as untimely and remand on the ground further factual development will be necessary before a conclusion can be made with respect to the timeliness of Porter's petition.
Id. at *1. The lawyer was running a habeas mill, where he solicited clients, and then did no work -- hiring law students to write petitions without supervision, not paying attention to deadlines, abandoning clients, and so forth. The State, however, argues that petitioner had only asked for his files once, which did not show diligence. The 9th notes:
It is contended that Porter did not act diligently because the filing of the February 2005 California Supreme Court petition shows that he had the ability to file a habeas petition without the return of his files and without the assistance of Dangler. However, depending on further factual development, it would be possible to find, as in Holland and Spitsyn, that Porter acted diligently because he, his mother, and others continually contacted Dangler and Rector until it became apparent in February 2005 that neither would be providing further representation. In this case's present posture, it cannot be conclusively determined that Porter would not be able to show that the effects of Dangler's dishonest and bad faith representation carried over from when he was first retained in November 2001 until February 2005.
Id. at *8. A hearing will develop the necessary facts so as to rule on dilligence.

U.S. v. Gallegos, No. 07-30199 (7-30-10) (Mosman, D.J. D. Ore.), with W. Fletcher and Rawlison). The defendant plead guilty to illegal reentry, but before sentencing, attempted his own departure by escaping. He was soon caught and charged also with escape, to which he plead guilty. At sentencing, the court stripped him of acceptance of responsibility, and adjusted upwards for obstruction on the illegal reentry. The court then bemoaned defendant's long criminal history, and sentenced him to 40 months on the illegal reentry and then 40 months on the escape, with 20 months of the latter to run concurrent with the former. The defendant appealed, arguing that this partial concurrent/consecutive sentence violated 3584. The 9th analyzed 3584, and although the statute does not expressly permit such mix-and-match, the intent is there to allow a court to fashion an appropriate sentence with two offenses. It was not plain error. The court also did not plainly err in refusing acceptance and enhancing for obstruction. The two adjustments serve different purposes.

Wednesday, July 28, 2010

U.S. v. Rosas, No. 09-10011 (7-27-10) (N. Smith with B. Fletcher and Thomas). If a defendant fails to appear for sentencing, and ends up in Mexico, it behooves him not to return to the US. Alas, this defendant did return (left in 2003 and got picked up in 2007), and got a new charge (failure to appear (18 U.S.C. 1346) and an increased sentence for his underlying drug charge (where he had been cooperating). Now on appeal, defendant argues that the Guidelines' commentary to enhance the underlying offense for obstruction of justice and to adjust for committing a new offense is double counting. Could be, said the 9th, but the Commission knows when to preclude double-counting, and so it can be said that they intended it in this instance. The use of obstruction and new crime is within the framework. The 9th also found that the other adjustments, such as loss of acceptance, were within the court's discretion, as was denial of minor role.
Note: the court still granted a downward variance of one level.

Tuesday, July 27, 2010

Skilling And Constitutional Avoidance

As lawyers who frequently litigate the construction of federal criminal statutes, federal defenders are quite fond of the doctrine of constitutional avoidance. In the Skilling case reversing the defendant’s Enron conviction for fraud, the Court provides some helpful language on the doctrine of constitutional avoidance, but also includes a potentially confusing footnote that needs some clarification.

In its detailed elaboration of constitutional avoidance in Clark v. Martinez, the Supreme Court laid out the basic principle that, if one construction of the statute raises serious constitutional questions, the other construction, if plausible, should prevail. The rule rests on the “reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts.” In determining whether the serious constitutional doubts apply, the Court in Martinez stated, “The lowest common denominator, as it were, must govern.”

This was an important point in Martinez. In the earlier case of Zadvydas v. Davis, the Court held that immigration authorities could not indefinitely detain deportable aliens, even though the language of the statute included no time limit. Justice Breyer in Zadvydas creatively read the statute to include a six month limit to avoid the problem of continued indefinite detention after the purpose of detention – removal to the country of origin – was no longer reasonably feasible. Justice Scalia joined the dissent in Zadvydas, excoriating the Court for writing rather than construing laws.

Here’s where the “lowest common denominator” comes in. The statute in Zadvydas included – without differentiation in treatment – inadmissible aliens such as Mariel Cubans who, under a legal fiction, could not be deported because they were legally considered to have never entered the United States. When their indefinite detention reached the Court in Martinez, this time Justice Scalia wrote for the Court, holding that the statute meant the same thing for both classes of aliens – deportable as well as inadmissible aliens. Justice Thomas dissented, asserting that detention of inadmissible aliens did not raise the same constitutional concerns as deportable aliens, so they should receive different statutory treatment. And here’s where Justice Scalia’s answer for the Court is so important in understanding and applying the doctrine of constitutional avoidance. In addressing the serious constitutional issue through construction, the constitutional danger is measured by potential applications, not necessarily the class of cases directly before the Court: “The lowest common denominator, as it were, must govern.”

This phrase from Martinez is used as a potentially confusing analogy in footnote 44 of Justice Ginsburg’s opinion in Skilling. Apart from challenges based on pre-trial publicity, Skilling involved the claim that the post-McNally honest services fraud statute was unconstitutional. In McNally, the Supreme Court reversed the evolution of the mail fraud statute to cover intangible rights such as honest services. In response, Congress wrote a statute that purported to criminalize fraud involving deprivation of honest services, which proceeded to generate extensive litigation regarding the statute’s meaning and breadth.

Justice Ginsburg wrote for the Court explaining that the honest services mail fraud statute was not void for vagueness but had to be narrowly construed to cover only kickbacks and bribery. Four other Justices agreed with the resolution of the statutory question in concurrences. Justice Scalia, joined by Justices Thomas and Kennedy, would have reversed the convictions because the statute is insufficiently definite to support a conviction and not susceptible to a saving construction. And here’s where the constitutional avoidance quarrel comes up.

Justice Ginsburg starts out with a useful description of the doctrine of constitutional avoidance and its deep roots in Supreme Court jurisprudence. In footnote 41, she quotes precedent that this “cardinal principle” can be traced to Chief Justice Marshall in 1804 and “has for so long been applied by this Court that it is beyond debate.” However, for there to be two plausible interpretations, the Court had a little difficulty coming up with cases before McNally where honest services were defined as only bribery and kickbacks. Justice Scalia attacks this point in footnote 3 of his dissent, after accusing the Court of engaging in “not interpretation but invention.” In footnote 44, Justice Ginsburg takes Justice Scalia’s bait, proceeding to provide examples of construction by constitutional avoidance, closing with a “cf." citation to Martinez – prominently attributed to Justice Scalia – that “when adopting a limiting construction, ‘[t]he lowest common denominator, as it were, must govern.’”

We need to understand that Justice Ginsburg’s citation to Martinez is a relatively distant analogy. The set up for the “lowest denominator” line in Martinez is the danger to the Constitution, not the redrawing of the statute. Here’s the context from Martinez:

"The Government, joined by the dissent, argues that the statutory purpose and the constitutional concerns that influenced our statutory construction in Zadvydas are not present for aliens, such as Martinez and Benitez, who have not been admitted to the United States. Be that as it may, it cannot justify giving the same detention provision a different meaning when such aliens are involved. It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s application, even though other of the statute’s applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern."

The use of Martinez in Skilling makes little difference besides providing an illustration of the potential confusion from the battle of footnotes that characterizes some opinions. But Skilling’s reaffirmation of the doctrine of constitutional avoidance is a good reminder that we should be using this defendant-friendly rule of construction to our clients’ advantage (as blogged here), even if the individual client may not be in the class of persons for whom the statute raises the serious constitutional concerns.

And there is an added bonus. Justice Ginsburg not only finds that, under the doctrine of constitutional avoidance, Congress would not intend to enact such a vague statute as to cover undefined intangible services. She also rejects the government’s efforts to add breadth to the narrow limitation to bribery and corruption by tying the rule of lenity to the doctrine of constitutional avoidance. In rejecting the government’s effort to more broadly construe the statute, she states: “Further dispelling doubt on this point is the familiar principle that ‘ambiguity concerning the ambit of criminal statues should be resolved in favor of lenity.’”

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

Monday, July 26, 2010

U.S. v. Thomas, No. 08-10450 (7-22-10) (Bybee with Tashima and Graber). This relates to the BALCO investigation. The defendant, a former professional cyclist, testified with a grant of immunity before a grand jury. Her responses to questions about performance enhancing drugs were deemed perjury. Convicted of several counts, she raised a "literal truth" defense, arguing that her answers were, to her mind, true and the questions were vague or inartful. The 9th did not think so, and rejected her responses as being knowingly false.

U.S. v. Crews, No. 09-30183 (7-23-10) (M. Smith with Paez and Tallman). The 9th holds that Oregon's second degree assault statute, Ore. Rev. Stat. 163.175(1)(b), is a crime of violence under the Guidelines' "residual clause." The analysis is focused on Begay's two step approach: does the offense involve conduct that presents a serious potential risk of injury; and is the offense roughly similar to the enumerated offenses that appear at the start of the residual clause of the Guidelines 4B1.2(a)(2). The defendant argues that his conduct does not necessarily involve purposeful conduct. The state statute only requires knowingly, which can be a lesser standard. While negligent or reckless conduct falls outside of purposeful, the statute here requires purposeful and violent acts. The focus is on deliberative acts.

Case o' The Week: The Truth, the Whole Truth, and the Literal Truth - Tammy Thomas and Obstruction

What does telling the "literal truth" before the grand jury get you? Four felony convictions, six months of home detention, and 500 hours of community service. United States v. Thomas, __ F.3d __, 2010 WL 2853875 (9th Cir. July 22, 2010), decision available here.

Players: Hard-fought appeal by ND Cal CJA panel member Ethan Balogh. Decision by Judge Bybee.

Facts: Thomas is yet another of the many Ninth Circuit decisions arising from the interminable steroid prosecutions in the N.D. Cal. (Comprehensive Drug Testing is another). In 2002, the IRS investigated a Northern California drug lab named BALCO. Id. at *1. As part of that investigation, Olympic bicyclist Tammy Thomas was ultimately called before a grand jury where she testified under a general immunity agreement. Id. She denied “getting” anabolic steroids from a lead figure in the BALCO investigation, and denied ever taking “anabolic steroids.” Id. at *2.

In the next two years, five figures associated with BALCO pleaded guilty to steroid-related
offenses. Id. In 2006, Thomas was indicted for making material false declarations before the grand jury, and for obstruction of justice under 18 USC § 1503. Id. She was convicted after a trial before the Honorable Susan Illston in the San Francisco federal district court. Id.

Issue(s): (One among many): “Thomas . . . argues that the government failed to plead and prove materiality as an element of its obstruction charge. Unlike 18 U.S.C. § 1623(a), which explicitly proscribes ‘knowingly making any false material declaration . . . 18 U.S.C. § 1503(a) contains no express materiality element. Thomas argues that two of our cases . . . hold that materiality is an implicit element of § 1503(a).” Id. at *19 (emphases in original).

Held: “In light of Ryan and Rasheed, we conclude that although not expressly included in the text of § 1503, materiality is a requisite element of a conviction under that statute. Our conclusion does not, however, mandate a reversal of Thomas’s obstruction conviction, because it is clear that the jury found the requisite element of materiality in convicting Thomas on count six.” Id. at *20.

Of Note: This would seem like a win: the obstruction statute requires “materiality,” this element wasn’t plead or specifically proven as part of the obstruction charge, and the jury instructions didn’t require this element. How Judge Bybee salvages the verdict – despite these flaws – is a head-scratcher that requires a diagram to understand. Id. at *20. (Notably, the panel dodges the apparently central issue of the failure to include “materiality” in the jury instructions). Id. at 20 & n.8.

The important new rule, however, is that “materiality” should be included as a specific element in all future Ninth Circuit obstruction cases under Section 1503(a).

How to Use: Thomas is a peculiar series of apparent concessions that the defense is right, then conclusions that the verdict nonetheless stands. The obstruction issue described above is one such example; another is a “theory of defense instruction” issue. Id. at *10-*11. Thomas submitted a defense instruction on the “literal truth” of her grand jury testimony, which was not given. Judge Bybee concedes that there was “some foundation in the evidence” for this instruction, and that the theory of this instruction was “supported by law.” Id. at *12. The verdict stands, though, because “in the context of the whole trial” and given other model instructions, this wasn’t reversible error. Id. at *13.

As disappointing as the result is, the (grudging) concession that Thomas actually earned this instruction is valuable support for future efforts to get a theory-of-defense instruction.

For Further Reading: Who were the most ardent and interested supporters of Ms. Thomas during her trial before Judge Illston? The prestigious legal team behind Barry Bonds, who may finally be going to trial before the same judge, on similar charges, in early 2011. See article here.

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


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Wednesday, July 21, 2010

U.S. v. Burkett, No. 09-30260 (7-20-10) (Hall with Wardlaw and Gould). The 9th affirmed the denial of a suppression motion. It was a stop on a highway for speeding, and the police officer had reasonable suspicion to "stop and frisk" the passenger due to his furtive movements while the driver was refusing to comply with instructions, his deceptive responses, and the strange way he opened the car door, and kept his arm by his side. All these factors justified, to an experienced officer, the possibility the defendant was armed and dangerous and so led to a pat down, where a weapon was found.

U.S. v. Lewis, No. 09-10058 (7-20-10) (Graber with Tashima and Bybee). This is the third go-around with this speedy trial violation. The 9th found in previous two appeals that there indeed was a violation because time slipped with superseding indictments and co-defendant issues. However, just because there is a violation, and a dismissal, does not mean that it is with prejudice. The district court weighed and balanced the seriousness of the offense (smuggling wildlife), the government reasons, and the prejudice to the defendant (different counsel) and came out with a dismissal without prejudice. The 9th gave this balancing great deference, and affirmed. By this time, the prejudice to the client with new counsel had dissipated given the two trials, three appeals, and extensive motion practice.

Monday, July 19, 2010

Rhoades v. Henry, No. 07-99023 (7-15-10) (Rymer with Gould and Bybee). The Supremes said that Ring (requiring capital jury sentencing) was not retroactive in Summerlin, 542 U.S. 348 (2004) but that states could apply Ring retroactively. See Danforth v. Minnesota, 552 U.S. 264 (2008). This was the case here, where petitioner asked the Idaho Supreme Court to apply Ring retroactively. The Idaho supreme court said "no"to retroactive application, applying a Teague analysis, and denied relief. The 9th now turns to the merits, and denies relief on IAC claims. The 9th holds that counsel adequately investigated mitigation, and made a reasoned strategic choice to present an innocence claim rather than ask for mitigation based on petitioner's childhood abuse, drug use, polio, IQ, and other personal matters. These matters, moreover, were alluded to in mitigation, when 20 witnesses were called. There appears to have been no IAC. Moreover, the court's finding of aggravators and the underlying facts would show no prejudice as the result would have been the same.

Saturday, July 17, 2010

Case o' The Week: Specific Loss from General Savings - Avila-Anguiano

The good news? The defendant is remanded for resentencing. By the time he gets back before the district court, the statute that created a ten-year mandatory minimum no longer exists!

The bad news? He still gets the ten (under a statute that no longer exists). United States v. Avila-Anguiano, _ F.3d _, 2010 WL 2735718 (9th Cir. July 13 2010), decision available here.

Players: Hard-fought appeal by Az. AFPD Saul Huerta and Defender Jon Sands.

Facts: A smuggler in Phoenix demanded payment from the alien’s relatives or threatened to kill his hostages. Id. at *1. ICE found the home where the hostages were held, along with an assault rifle and ammo. Id. Avila-Anguiano was identified as the man who had made the calls and threats; he was convicted of six federal counts after trial. Id. One count was a § 924(c) [use of a gun in the course of felony] which – at the time – carried a ten year mandatory minimum if an assault weapon was involved. Id. at *2.

Avila-Anguiano got some counts reversed on appeal; by the time re-sentencing came around the federal statute that had created that ten year mand-min had expired. Id. Nonetheless, the district court still imposed a ten year sentence for that count (with the sentences for other counts running consecutive). Id.

Issue(s): “This appeal presents the question, inter alia, as to whether U.S.S.G. § 2K2.4(b) [the guideline which refers to the statutory mandatory minimum] refers to the statute in effect at the time the crime was committed or the one in effect at the time of sentencing.” Id. at *1.

Held: “Under the circumstances presented by this case, we conclude that the statute in effect at the time that the crime was committed is the proper one to apply. We affirm the judgment of the district court.” Id.

Of Note: If you’ve been trained in the “One Book Rule,” this decision seems counter-intuitive. Recall this rule instructs the court to apply the guideline in effect at the time of sentencing, unless the defendant elects for the book in effect at the time of the offense. See generally United States v. Tucker, 982 F.Supp 1309, 1314 (N.D. Ill. 1997). The defendant picks the book.

Seems that under that rule, on remand the defendant should get to use the current guidelines with their cross-reference to the “new” statute with a lower mandatory-minimum sentence. Sadly, there’s another (obscure) rule: “The General Savings Provision.” Avila-Anguiano, 2010 WL 2735718, at *2. Codified at 1 USC § 109, the General Savings Provision abolishes the old common law presumption that a repeal of a statute ended non-final prosecutions under that statute. Id. The provision bars “application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense.” Id. at *4. It is sort of an anti-ex post facto rule: a defendant can’t be punished more harshly under laws that changed after the crime, but can be punished more harshly under repealed or expired laws that existed at the time of the offense. For Avila-Anguiano, this means getting a decade of federal custody under a statute that no longer existed at the time of sentencing.

How to Use: On March 17th the Senate passed the Fairness in Sentencing Act of 2010. This Act reduces (though does not eliminate) the sentencing discrepancy between crack and powder cocaine. Waiting for this reform has been like Waiting for Godot: much anticipated, never actually on the stage. If and when it passes, will the “General Savings Provision” of Avila-Anguiano ever come into play in relation to the Section 841 mand-mins? The issue may be moot if the final bill has explicit retroactivity provisions (or bars), but it is an interesting problem to anticipate.

For Further Reading: What is the most unjust Ninth Circuit decision in the last couple of years? A strong candidate is surely Hinkson. In this Idaho murder case the central government witness skated by without cross-examination on his extraordinary lies about his distinguished military service (including a phony Purple Heart). See blog here. In a remarkable (and politically-polarizing) decision, the en banc court actually rewrote the standard of review for “abuse of discretion” to preserve this conviction.

San Francisco’s intrepid Dennis Riordan sought a “super en banc” review; tragically, it was denied this week. Hinkson, 2010 WL 2757419 (9th Cir. July 14, 2010) (ord.).

If there’s ever a case where the Marine Corps' JAG officers should be writing an amicus for certiorari, Hinkson is it. And, if there’s ever a case that deserves a quick per curiam flip, Hinkson is the one. See Porter v. McCollum, 130 S. Ct. 447, 454 (2009) (discussing the particular respect juries afford to American veterans).

"Semper Fi" image from AK47 image from

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


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Wednesday, July 14, 2010

U.S. v. Broussard, No. 09-10331 (7-14-10) (Kozinski with Thompson and McKeown). How much contempt can a court have for a defendant? Apparently unlimited, because this case deals with how convictions for contempt are classified for sentencing purposes. The reason is that contempt has no statutory maximum and so a court must analogize the contempt to the most applicable offense. First, lets talk about the defendant whom, ordered to stay at a halfway house during a first SR violation, promptly proceeded to attempt to escape. However, an alert ATF agent saw defendant jump into a car, and the agent blocked it. That led to another 18 month sentence for assault on a federal officer and contempt. On SR from that offense, defendant violated conditions yet again. In assessing punishment, should the prior contempt conviction be considered a class A felony (the most serious) because there is no stat max, or should it be considered a class E (the least serious) or something in-between? In sentencing, the court had analogized the contempt to escape, because that is what he tried to do, and sentenced him to 37 months, which would be a class D felony. The 9th had precedent looking at the stat max of the guideline most applicable. Yet, this precedent (Carpenter, 91 F.3d 1282 (9th Cir. 1996)) was pre-Booker. Under Booker, the guidelines are advisory, and so the stat max becomes the stat max of the most analogous offense, which in this case is escape, and five years. A five-year stat max allows for SR punishment of three years, with two in prison. That is what the defendant got here.

Monday, July 12, 2010

Case o' The Week: OK to "Go Down in Flames" - Johnson and Pro Se Representation

Turns out there are 300 good reasons not to go pro se (with 15% off for good time). United States v. Johnson, _ F.3d _, 2010 WL 2653221 (9th Cir. July 6, 2010), decision available here.

Players: Decision by Judge Silverman, upholding N.D. Cal. District Judge Alsup (right).

Facts: Johnson and Scott were charged with mail fraud arising from their “debt-elimination” business: a scheme that involved creating trusts, making goofy demands to the mortgage-holding banks, property-recordings purporting to wipe out the debt, and concluding with suing the banks when the homes went into foreclosure. Id. at *1. These civil suits against the banks wound up in front of Judge Alsup. Id. at *2.

He was unimpressed.

Judge Alsup dismissed all the civil suits, sanctioned the defendants’ attorney, and referred the men to the United States Attorney’s office. Id. at *1. After the pair were indicted the criminal case was related back to Judge Alsup. Id. at *1. (In a separate hearing, Judge Illston denied the defendants’ recusal motion). Id. at *2.

The defendants refused appointed counsel and asked to represent themselves. Id. at *2. The court had the two men shrunk; the shrink reported there was no indication of mental disorder. Id. at *3. After several hearings where he “practically begged” the defendants to accept counsel, id. at *1, Judge Alsup found the pair competent to represent themselves. They did so in a month-long trial and were convicted on thirty-five counts. Id. at *4.

Issue(s): “[The defendants] argue that the district court should not have permitted them to represent themselves. First, they argue under Faretta . . . that their self-representation should have been terminated because their own courtroom behavior rendered their trial unfair. Second, they argue that under Indiana v. Edwards, 554 U.S. 164 . . . (2008), regardless of whether their behavior required termination under Faretta, they were in fact not competent to continue representing themselves.” Id. at *4.

Held: 1. “The defendants’ courtroom behavior, although eccentric at times, would not have justified, let alone required, the involuntary deprivation of their constitutional right to represent themselves.” Id. at *5.

2. “[T]he district court conducted three Faretta hearings spanning several days in which he repeatedly and thoroughly advised the defendants of their right to counsel. the pitfalls of self-representation, and their right to change their minds. The defendants unequivocally demonstrated their understanding of the situation and their adamant desire to represent themselves, as was their right. They were examined by a psychiatrist and found to be fine. In the absence of any mental illness or uncontrollable behavior, they had the right to present their unorthodox defenses and argue their theories to the bitter end.” Id. at *8.

Of Note: “The record clearly shows that the defendants are fools, but that is not the same as being incompetent.” Id. at *1. An opinion that starts with that observation is likely to go downhill from there. If you can get past wincing as pro se defendants get hammered, Johnson is actually a instructive case. It is new entry in the tricky spectrum of cases that stretch from competency to go to trial, to competency to represent oneself. After the Supreme Court’s decision in Edwards, those are different and distinct standards of competency. Judge Silverman goes through two post-Edwards Ninth decisions and discusses what those standards mean. Id. at *5.

For the tragic client who is “competent” enough to face a trial, but may be too mentally ill for him or her to go pro se, Johnson is a good place to start.

How to Use: While Johnson is primarily a Faretta / Edwards case, there’s an interesting little discussion on the recusal of a criminal judge who has previously presided over civil proceedings. Id. at *7-*8. Remember the “elephant and elephant gun” aphorism in the context of recusals? Johnson reminds us that a district judge’s history with a case in civil proceedings (even in proceedings that ended badly) isn’t an elephant gun when the criminal charges are filed.

For Further Reading: How much time did these pro se lads get at sentencing? Twenty-one and twenty-five years! (Though these defendants’ courtroom antics are recounted in Johnson, their sentences are conspicuously omitted).

For a compelling criticism of the injustice of the Faretta “right,” see Judge Reinhardt’s attack in United States v. Farhad, 190 F.3d 1097, 1107 (9th Cir. 1999) (Reinhardt, J., concurring specially) (“[T]he right to self-representation has now been extended to the point that it frequently, though not always, conflicts squarely and inherently with the right to a fair trial.”)

Image of the Honorable William A. Alsup from

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


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Thursday, July 08, 2010

Lee v. Lambert, No. 09-35276 (7-6-10) (O'Scannlain joined by Wolle, D.J.; concurrence by N. Smith). AEDPA does not have an innocence exception to its statute of limitations. That was the decision by the 9th, where the panel reversed and remanded a granting of relief by a district court. The petitioner had been convicted of various counts of child molestation in Oregon, but his challenge, with a compelling innocence claim, was outside AEDPA's statute. The 9th chose this case to quash any assumption that there was an exception for innocence, stating that it was basically a waste of time and judicial resources and that district courts are deciding cases differently (see pp. 9533 & 9534). The decision by the 9th boils down to the plain language of the statute and that Congress was aware of such a possible judicial created exception, but did not fashion such an exception in the final legislation. The decision by the 9th creates a circuit conflict with the 1st, 5th, 7th, 8th, and now 9th, aligned against the 6th. N. Smith concurred, focusing on the lack of AEDPA deference given to the state courts by the district court under AEDPA.

U.S. v. Johnson, No. 08-10147 (7-6-10) (Silverman with Fisher and M. Smith). "The record clearly shows that the defendants are fools, but that is not the same as being incompetent." That pretty much sums up this Faretta / Edwards decision. The defendants ran an illegitimate debt-elimination scheme and once caught, decided to represent themselves. The district court held a Faretta hearing, begged them to have counsel, had a competency hearing, and appointed stand-by counsel. The defendants cannot now say that Indiana v. Edwards, 554 US 164 (2008) required the court to appoint counsel. Edwards allows a district court to override a Faretta request where there is a mental disorder that prevents a fair trial from occurring. Here, though, the defendants were found competent, appeared rational, if foolish, and after an extensive hearing, voluntarily and knowingly waived counsel. The defendants could not meet the threshold for an Edwards claim. The opinion does identify that the standard of review for such Edwards claims is still undecided. There is a suggestion that it is an abuse of discretion, but it may require a higher standard once a Faretta request has been granted. This issue is left for another day because the defendants were competent. The 9th also held that the district court did not abuse its discretion in refusing to recuse itself after having presided over a civil trial with the defendants on related issues.
U.S. vs. Graf, No. 07-50100 (7-7-10) (Tallman with O'Scannlain and Block, D.J.). This deals with attorney-client privilege in the context of corporate counsel. The defendant, found to be a functional employee of a corporation, spoke with corporate counsel. Was the conversation privileged? Yes, if the defendant came to talk about himself, his problems, made clear it was all about him, did not focus on the corporation, and the corporate counsel knew that it was the defendant's own issues. That was not the case here, where the defendant's discussions with counsel for a corporation that was in trouble with insurance fraud issues was about the corporation. The 9th adopts the corporate counsel privilege with employees test set forth in Bevill, 805 F.2d 120 (3d Cir. 1986). This test has been adopted by the 1st, 2nd, 10th and now the 9th circuits. The case is also interesting as to the discussion of what constitutes a functional employee when the defendant, as here, is supposedly an independent contractor (but looks, acts, and appears to be an employee).

U.S. vs. Chavez, No. 09-50434 (7-8-10) (Per curiam by O'Scannlain, Tallman, and Block, D.J.). Can one be parsimonious about Apprendi? "No," flatly states the 9th, when it comes to the parsimony clause of 18 U.S.C. 3553(a). Apprendi maximum sentence refers to the criminal statute of conviction, and not the over-arching sentencing policy of the parsimony clause. Although the clause states that the sentence should not be greater than necessary, that clause does not set a separate statutory maximum under the Sixth Amendment apart from the statutory maximum of conviction. Any other reading would make any sentence open to a parsimony challenge.

U.S. vs. Brooks, No. 08-10301 (7-8-10) (Canby with B. Fletcher and Graber). In an interstate prostitution conviction case, the 9th draws the distinction between two interstate trafficking of minors statutes: 18 U.S.C. 1591(a) and 2423(a). The former requires specific knowledge that the victim was under 18; the latter does not. The former also requires that the defendant knew the victim would engage in a sex act, the former only requires intent. There is overlap between the statutes, and the distinction is fine, but the two statutes are separate, and therefore not multiplicitous. The 9th also upheld the testimony of a detective as an expert on the relationship between pimps and prostitutes, and that such a relationship is not common knowledge to the jury. The 9th does vacate the sentence and remand for error in the enhancement under 2G1.3(b)(1)(B), which is a +2 level adjustment for being a parent, relative, or guardian, or in the care or custody or control of the defendant. Although the 9th said this was a close question, the focus of the guideline characteristic is on parent-like care and custody, and on like figures, such as teachers or day-care providers. The relationship here, pimp to prostitute, falls outside of that, even with the minor's attachment. To apply the adjustment here, where the crime and guideline deal with the act, is not appropriate.

U.S. vs. Evans-Martinez, No. 09-10098 (7-8-10) (Bea with Farris and D. Nelson). The 9th vacates and remands sentencing in convictions for child sexual abuse, child sexual exploitation, and witness tampering. The district court used the 120-month mandatory minimum sentence for child sex exploitation as the starting point for sentencing on the two other counts, despite the fact that they did not have the same mandatory minimum sentence, nor any mandatory minimum sentence. The court needed to distinguish between the counts.

Tuesday, July 06, 2010

McDonald Signals The End Of Oregon’s Non-Unanimous Jury Rule

The Supreme Court’s opinion in McDonald, which extended the federal Second Amendment protections in identical form to the States, should finally bring an end to Oregon’s deviant non-unanimous jury rule. Assistant Federal Public Defender Renée Manes has been campaigning against the injustice of non-unanimous juries in what is probably the least friendly forum for such challenges: federal habeas corpus under the extremely restrictive standards of the Antiterrorism and Effective Death Penalty Act of 1996. Now, McDonald gives us a new road map for state and federal court litigation:

• Object at trial to non-unanimous jury instructions under the Sixth Amendment as incorporated through the Fourteenth Amendment’s due process clause, as well as under the Fourteenth Amendment’s Privileges and Immunities Clause, and don’t forget to poll the jury to establish that the jury was not unanimous;

• Preserve the issues on appeal to the Oregon Court of Appeals and on petition to review in the Oregon Supreme Court for every non-unanimous conviction, arguing that the State has the authority to reassess the question whether the federal right to a unanimous jury is fully incorporated in light of the Supreme Court’s post-Apprendi Sixth Amendment jurisprudence and the observation in McDonald’s footnote 14 that Apodaca was “not an endorsement of the two-track approach to incorporation;”

• File a petition for certiorari to the Supreme Court based on 1) the exceptionally important question of whether the federal Sixth Amendment right to a unanimous jury is fully incorporated into the Fourteenth Amendment’s due process clause, as well as the Privileges and Immunities Clause, in light of McDonald’s statement that the unusual division of Justices in Apodaca failed to resolve that question, and 2) the conflict between Apodaca and the Court’s recent Sixth Amendment jurisprudence.

The previous work of Stanford law professor Jeff Fisher, State Appellate Defenders Peter Gartlan and Jesse Barton, and our intrepid AFPD Renée Manes is linked below to provide briefing that can be mined and adapted for new pleadings. But first the full story: starting with the problem of non-unanimous juries; then to the freakish decision in Apodaca; the post-Apprendi articulation of the Sixth Amendment’s roots in unanimity; and the door flung open in McDonald.

The Disgrace And Injustice Of Non-Unanimous Juries

We Oregonians are somewhat inured to what many in the rest of the country see as a bizarre deviation: we send people to prison for many years – even for the rest of their lives – based on trials where two of the twelve jurors harbored reasonable doubts that the accused person committed the crime. We are practically alone in tolerating this practice – only Louisiana also allows non-unanimous juries in felony cases. If they had filmed Twelve Angry Men in Oregon, it would have been a very short movie.

There are three fundamental systemic flaws perpetuated by non-unanimous juries. First, the ability to over-ride questions and doubts of two jurors substantially dilutes and negates the right to proof beyond a reasonable doubt. Second, the quality of deliberations is impaired because, as found by the American Bar Association’s jury project, “Studies suggest that where unanimity is required, jurors evaluate evidence more thoroughly, spend more time deliberating and take more ballots.” Third, non-unanimous juries negate the effect of the hard-won progress toward more diversity in juries by allowing minority voices to be ignored.

Apodaca Approved Oregon’s Non-Unanimous Juries With Eight Justices Agreeing That The State And Federal Right To Jury Are Identical.

The Court’s decision in Apodaca came down in 1972 in the context of the Court’s decades long struggle to determine whether guarantees of the Bill of Rights, which by their terms apply only to the federal government, apply to the States through the Fourteenth Amendment’s due process clause. As we learned in law school, some Justices believed in total incorporation (all eight Amendments are fully incorporated through the Due Process Clause of the Fourteenth Amendment), others in selective incorporation (those interests in the Bill of Rights that are fundamental to the Anglo-American system of justice are incorporated), and others were fundamental fairness advocates (only those rights that are fundamental to a fair trial are incorporated). But in all this theorizing, one principle stood out: once deemed incorporated, the federal constitutional right was identical to the right as it applied to the States. Until Apodaca.

In Apodaca, the Court fractured in an extremely unusual way: four Justices believed the Sixth Amendment’s right to jury trial did not require proof beyond a reasonable doubt and thus did not require unanimity in either state or federal court; and four Justices believed the jury right required unanimity in both state and federal court. The tie-breaker – Justice Powell – found that the Sixth Amendment applied to the States, that the federal right required unanimity, and that the State right could differ from the federal right by allowing non-unanimity. The usual Supreme Court rule of precedent requires that the narrowest holding upon which a majority agree governs. But here, there was no majority because eight of the nine justices agreed that the federal and state right to jury trial was identical, whether or not unanimity was required.

McDonald Reinforced The Principle That The Bill Of Rights Does Not Apply Differently In State And Federal Court.

In McDonald, the Court revisited for the first time in many years the doctrine of incorporation of the Bill of Rights through the Fourteenth Amendment’s due process clause. Two years ago in Heller, the Court for the first time recognized the Second Amendment’s personal right to bear arms for self defense in a challenge to a federal handgun ban. The question in McDonald was whether Heller applied to the States and, if so, whether the right was identical to the federal right. After a fascinating historical journey through the Reconstruction Era need for newly freed slaves to be armed to protect themselves from racially-motivated attacks, Justice Alito’s plurality decision found that the Heller Second Amendment right met the standards for incorporation.

In doing so, the Court had to address the alternative claim that the Second Amendment should only apply to the States in diluted form. Justice Alito rejected this argument, quoting precedent holding that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” And here’s where the plurality opens the door to new state court and Supreme Court challenges.

In footnote 14, Justice Alito recognizes Apodaca as “one exception to the general rule.” And here the plurality declares that the question is still open: “But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation.” After reviewing the Apodaca split, Justice Alito states, “Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.” The plurality has now recognized that the superannuated Apodaca ruling does not block consideration of the argument that, in light of intervening Supreme Court authority, the unanimous jury requirement of the Sixth Amendment applies equally to the State of Oregon.

Intervening Sixth Amendment Jurisprudence Empowers State Courts To Enforce The Federal Right To Jury Unanimity

Now that Apodaca’s authority has been debunked by the Supreme Court itself, Oregon courts are free to consider for the first time in almost 40 years whether the identical federal Sixth Amendment unanimity requirement applies to Oregon. As the Supreme Court stated in footnote 35 of Stone v. Powell, “State courts, like federal courts, have a constitutional obligation to safeguard personal liberties and uphold federal law.” The fresh look at the Sixth Amendment as applied to the States must now be informed by the historical analysis of the Sixth Amendment that underlies Apprendi and its progeny. A key part of this analysis is the Supreme Court’s recognition that proof beyond a reasonable doubt and jury unanimity have been integral to the jury trial right since the Founding of the Republic.

The Court’s reinvigorated Sixth Amendment jurisprudence unquestionably defines the historical Sixth Amendment right as encompassing unanimity. In his Apprendi concurrence, Justice Scalia described the requirement that charges must be proved “beyond a reasonable doubt by the unanimous vote of 12 of his fellow citizens.” In Blakely, the Court cited Blackstone in asserting “that the ‘truth of every accusation’ against a defendant ‘should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours.’” In the Booker remedial opinion, the Court again used the language of Blackstone in describing the “great bulwark of [our] civil and political liberties” as trial by jury confirming unanimously the charges against the accused. This intervening Supreme Court Sixth Amendment authority, considered in tandem with McDonald’s rejection of two-track incorporation, provides Oregon courts with an open door to striking down non-unanimous juries as violating the identical federal Sixth Amendment unanimity requirement that applies to the States under the Fourteenth Amendment.

The Privileges And Immunities Clause Provides Additional Support For Striking Down The Verdicts Of Non-Unanimous Juries.

Justice Alito wrote for a plurality of the Justices in McDonald. Justice Thomas provided the swing vote, choosing not to reach the due process question by relying on the Privileges and Immunities Clause of the Fourteenth Amendment. The academics’ amicus curiae briefs weighed in heavily in McDonald, trying to persuade the Justices to breath life into that moribund clause by overruling the Slaughter-House Cases. At the oral argument in McDonald, Justice Scalia derided the approach:

"JUSTICE SCALIA: No, no. I'm not talking about whether -- whether the Slaughter-House Cases were right or wrong. I'm saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?
MR. GURA: Justice Scalia, I suppose the answer to that would be no, because -
JUSTICE SCALIA: And if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when -- when you can reach your result under substantive due -- I mean, you know, unless you’re bucking for a -- a place on some law school faculty –"

But the alternative route of overruling Privileges and Immunities Clause precedent persuaded Justice Thomas, so we need to be sure to preserve and argue this ground. Some or all of the other Justices may now agree that, in the Sixth Amendment context, the federal and state protections are identical under the due process clause, but we may need Justice Thomas’s vote both on the certiorari grant and on the ultimate merits in the Supreme Court. Interestingly, only now-retired Justice Stevens defended two-track incorporation in his solo dissent, and even he noted that “there can be significant practical, as well as esthetic, benefits from treating rights symmetrically with regard to State and Federal Governments.”

Every Case Involving A Non-Unanimous Jury Could Be The Potential Vehicle For Bringing An End To Oregon’s Unjust And Unconstitutional Practice.

The litigation from the Federal Public Defender office has been hampered by a terrible standard of review. Under the AEDPA, we have had to argue that, after Blakely, the state decisions upholding non-unanimous jury verdicts violated clearly established Supreme Court authority. State court litigants, Oregon courts, and direct United States Supreme Court review would not be so constrained. Hence, in state court, the Sixth Amendment unanimity issue needs to be consistently argued at each level to establish a winning standard of review.

First, state trial courts should be advised that they are free to rule in the first instance based on McDonald and the post-Apprendi Supreme Court jurisprudence on the Sixth Amendment. This will preserve the issue for potential appeal in terms of the Sixth and Fourteenth Amendments as well as the Privileges and Immunities Clause. Second, the issues need to be argued and preserved at both the Oregon Court of Appeals and the Oregon Supreme Court. Then, most critically, the United States Supreme Court needs to be petitioned on all grounds: counsel should convey the importance and urgency of the opportunity to correct a systemic failing that pervades the criminal justice systems of Oregon and Louisiana, and the need to resolve the discord in the Court’s precedent regarding two-track incorporation.

For those litigating this issue, resources are available to assist in briefing and arguing the issue. Jeff Fisher and Peter Gartlan’s petition for certiorari in Bowen is linked here; Renée Manes’s amicus curiae brief is here. For those appointed counsel on direct appeal, the petition for certiorari must be part of the representation because the highest court may provide the only available relief, depending on the Oregon courts’ assessment of their ability to provide meaningful review. Peter, Jeff, and Renée have all indicated their willingness to consult on the issue. And remember the words of Frederick Douglass, who was quoted by Justice Thomas in McDonald regarding the need for armed self-defense: “Power concedes nothing without a demand; it never did and it never will. Find out what people will submit to, and you have found the exact amount of injustice which will be imposed upon them.”

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

Sunday, July 04, 2010

Case o' The Week: Better Off Ted - Struckman, Brady / Giglio, and Defendant Extractions

Want to know how the Feds get away with a made-up informant, potential illegal wiretaps, and a series of false assertions repeated to a federal district court judge -- with no apparent investigation into the misconduct or disciplinary action?

You're in good company: so does Judge Berzon.
United States v. Struckman, __ F.3d __, 2010 WL 2573211 (9th Cir. June 29, 2010), decision available here.

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

Facts: U.S. citizen Struckman, the head of a huge tax-fraud scheme, went to Panama on a tourist visa and didn’t return. Id. at *1. The Feds wanted him back to face federal charges. A US embassy official flatly lied in a number of communications with US and Panamanian authorities as they tried to “habeas grabbus” Struckman and get him back to the U.S.. Id. *2 ("habbeas grabbus" is U.S. Embassy Security Officer Timothy O'Brien's term - not ours. See id. at *2).

Back in the States, IRS Special Agents Keith L. Chinn and Michael D. Hardaway had developed a huge stockpile of information about Struckman from confidential informant “Ted.” Id. at *3-*4. When defense counsel later pushed to get “Ted’s” identity, the snitch fell “off a roof” and was not “able to travel due to medical problems.” Id. at *4.

When pressed by the court, the agents finally submitted statements (not under penalty of perjury) that the snitch was the husband of Struckman’s ex-wife. Id. at *5. The defense countered with declarations from that man, as well as from other family members, denying that claim and accusing the Feds of illegal wiretaps. Id.

Defense motions finally produced an order from District Judge Takasugi finding that the man identified by the agents “could not have been the informant” and that there was no single source for all the information attributed to confidential informant “Ted.” Id. at *6. The court found a number of additional Brady / Giglio violations, but refused to dismiss the indictment. Id. at *7. Instead, the court excluded evidence related to the informant, precluded another government witness from testifying, and required the government to assure the evidence produced at trial was “not derived from suppressed evidence.” Id.

Struckman was convicted after trial: the actual source of the “Ted” information was never revealed. Id.

Issue(s): “Struckman maintains that the government’s conduct, both in bringing him from abroad to stand trial in the United States and in its criminal investigation of him, warrants dismissal of the indictment with prejudice.” Id. at *1.

Held: “We agree that the broad suppression of evidence before trial was an adequate remedy for the misconduct found, disturbing as some of it was, and therefore affirm.” Id. at *1.

Of Note: Judge Berzon gets it exactly right in a separate concurrence: she complains of the “intolerable situation” presented by this case, “severely challenging the integrity of the courts and the appearance of justice.” Id. at *15 (Berzon, J., concurring). As of the date of the opinion, the Feds still remain in flat defiance of the district court order requiring explanation of the real identity of “Ted,” still have not denied the very credible defense accusation of illegal wiretaps, and apparently still had not initiated disciplinary actions. Id. at *14.

If Holder’s DOJ is sincere about a new era after the Alaska Stevens debacle, some bright young folks at 950 Pennsylvania should be reading Berzon’s concurrence and assembling teams to get to the truth of this dirty prosecution. As things stand now, the case remains an “affront to the court’s integrity and the appearance of justice.” Id. at *17.

How to Use: Struckman is marred with a troubling little passage on Brady / Giglio violations in the pretrial context – a passage that merits a close read. Id. at *13. The main legacy of the case, however, will be a comprehensive (and disappointing) analysis of the remedies available for defendants grabbed from foreign countries. Id. at *7. Here, government agents lied to Panamanian officials and conspired to dodge extradition proceedings in Panama, worked to block the assistance of defense counsel, and successfully dragged the defendant back without going through the protections of the full extradition treaty. Id. at *9. As Judge Berzon notes in significant understatement, “Some of the government’s actions in Panama are quite disturbing.” Id. For better or worse, Struckman will now be the starting point for defense challenges to the extraction of federal defendants from foreign countries.

For Further Reading: While a dismissal of the indictment would have been nice, it is obvious that District Judge Takasugi (left) held the government’s feet to the fire when he learned of the misconduct. Judge Takasugi passed away last year, after a long and admirable career on the bench. For a personal view of Judge Takasugi’s commitment to issues of social justice, see former clerk’s Edwin Prather’s essay here.

Image of "TED" from Image of the Honorable Judge Robert M. Taksugi from

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


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Thursday, July 01, 2010

U.S. v. Struckman, No. 08-30312 (6-30-10) (Berzon joined by O'Scannlain and Kleinfeld; concurrence by Berzon). The government charged the defendant with massive tax fraud in 2004. He left to Panama and refused to come out. The government then made misrepresentations to the Panamanian government and courts that got the defendant removed. In addition to unclean hands in its haste to grab the defendant upon his removal from Panama, the government committed egregious Brady / Giglio violations which resulted in suppression of evidence and witnesses. On appeal, the defendant argues that the conduct was so outrageous that the indictment should be dismissed. The 9th expressed its distaste for the government's actions, but found that dismissal was not appropriate for the misrepresentations to Panama that got him here (that is up to the State Dept). As for the Brady / Giglio violations, including fabricating sources of information (so-called "Ted") and not disclosing all sorts of deals and impeachment on witnesses, the suppression of evidence was the appropriate remedy. Going back to "Ted," it seems that the government fabricated this witness as a source of information, and refused to name the source when ordered by the court. This did not make the 9th very happy. Concurring to her opinion, Berzon would remand the case to see what other mischief the government may have been up to, and to finally get the information requested by the court.