Alaimalo v. U.S., No. 08-56349 (2-28-11) (B. Fletcher with Paez; dissent by Korman, Sr. D.J., EDNY). The petitioner is serving life sentences on numerous drug charges. Three counts were for importation of drugs from California to Guam. The convictions were in 1997; in 2003, the 9th, en banc, held that transporting drugs from one location in the U.S. to another is not importation under 21 U.S.C. 952(a). The petitioner, therefore, was convicted of crimes for which he was innocent. He had appealed from his sentence, and filed 2255 claims, all for naught. He also filed two 2241 claims. This appeal is from his second. The 9th first found that it did have jurisdiction because a 2241 claim raising actual innocence does not need a COA. Moreover, petitioner made a strong showing of actual innocence, and a change in the law, making actions not a crime, is material. The 9th sidestepped "law of the case" issues with previous panels because it held, cutting through Gordian knots of habeas and law of the case doctrine, that the petitioner did not commit the crime for which he is was sentenced. Although he is also doing life on other drug charges, the principle is important, and any adverse consequences of these convictions demand remedy. Dissenting, Korman finds that the decision to grant relief is meaningless because of the other sentences. Even putting that aside, the petitioner had filed 2255 claims, and had his shot, argues Korman. The petitioner could have raised the issue, or challenged the precedent, but did not. Korman also would find that 224's extraordinary relief would apply only when a change in statutory construction is adopted and made retroactive by the Supreme Court so that an offense becomes non-existent. That did not occur here. Law of the case also put this matter to bed. Lastly, Korman believes this rewards repeated successive filings, all abusing the writ.

Case o' The Week: "Original" Sin, and Lynn - Interstate Commerce and Digitized Child Porn

Philosophers have wrestled for centuries with the meaning of identity as framed in Theseus's paradox: the riddle of the wooden ship with the replaced planks.


They should have asked the Ninth: it takes only four pages to get to the answer in the recent Lynn decision. United States v. Lynn, 2011 WL 635298 (9th Cir. Feb. 23, 2011), opinion available here.

Players: Decision by Judge Gould, joined by Judges Shroeder and Thomas.

Facts: Lynn was convicted after trail for receiving child porn, and for possession child porn. Id. at *1. The images had been recovered from Lynn’s computer in Fresno, Ca., and had been downloaded via Limewire. Id. Cops from Washington and Georgia testified that two videos were of minor victims from their respective states. Id. at *2. At trial Lynn moved under Rule 29 for a judgment of acquittal, arguing that there was insufficient evidence on the interstate commerce element. Id. The motion was denied; Lynn was sentenced to 210 months. Id.

Issue(s): “According to Lynn, the government’s evidence on the out-of-state production of certain videos was insufficient because it did not bear on whether the actual contraband – which he contends are the digital video files found on Lynn’s laptop – had crossed a state border. He contends that the ‘original’ child pornography videos, first produced in Washington and George, respectively, are not the same visual depiction as the digital video files received on Lynn’s laptop via Limewire.” Id. at *4.

“This part of the case boils down to whether evidence that a video depicting child pornography was originally produced in another state suffices for a rational trier of fact to find that the visual depiction ‘has been mailed, or has been shipped or transported in interstate or foreign commerce.’” Id. at *3 (citing 18 USC § 2252(a)(2), (a)(4)(B)).

Held: “We hold that the government met its burden on the interstate commerce element because a rational trier of fact could reasonably conclude that the visual depictions Lynn downloaded from Limewire – the images depicting the sexual exploitation of minors – had previously moved in interstate commerce. The evidence established that two videos in Lynn’s possession were first produced in states other than California. Viewing the evidence in the light most favorable to sustaining the verdict, a rational trier of fact could have found beyond a reasonable doubt that the visual depictions crossed state lines before they were downloaded onto Lynn’s laptop. If child pornography is produced in one state and the visual depictions – the images – end up on a defendant’s computer in another state, regardless of changes of medium, the jurisdictional provisions requiring that visual depictions of child pornography have been shipped, mailed, or transported in interstate or foreign commerce are satisfied. Stated another way, such evidence is sufficient to sustain a jury determination that the interstate commerce element was met.” Id. at *6 (footnotes omitted).

Of Note: Lynn could have been worse. The government argued that “proof of use of the Internet to obtain child pornography, without more, satisfies the interstate commerce element given the inherently interstate nature of the internet.” Id. at *4 (emphasis added). Thankfully, the holding in Lynn is limited to cases where the government proves that the original visual depiction was produced out of state. Id. at *6 & n.10.

Unfortunately, with the MD5 hash-file database maintained by the National Center for Missing & Exploited Children, odds are high that a prosecutor will be able to prove at least one image was created out of state. See generally article here.

How to Use: Lynn reaffirms and expands upon the good Ninth Circuit rule, that it violates double-jeopardy to be convicted of both receipt and possession of “essentially the same evidence.” Id. at *6. If a client is charged with both offenses, turn to Lynn’s helpful discussion of the Blockburger analysis (rejecting the government’s argument that different dates alleged means different offenses). Id. at *7.

For Further Reading: A porn video is taped in Washington; the tape brought to California and digitized in Clovis, then the digital file is uploaded in Fresno via Limewire. Is the uploaded digital file the same “visual depiction” as was on the tape that crossed state lines? In Lynn, Judge Gould concludes “yes:” “visual depiction” is not tied or fixed “to a particular medium.” Id. at *6. In Theseus, Plutarch wasn’t so sure – is a ship whose original wooden planks are completely replaced still the original “ship?” See article here. .

Image of the Ship of Theseus from http://thefunambulist.net/2011/02/10/philosophy-the-ship-of-theseus/


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


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U.S. vs. Salazar-Mojica, No. 09-50632 (2-24-11) (Clifton with Pregerson and Holland, Sr. D. J., D. Alaska). Can one change the past? Specifically, in a 1326 prosecution, can one change a past state conviction that is classified as an aggravated felony to a misdemeanor, and avoid a +16 level increase? The 9th shakes its head, "no." Defendant was charged with a 1326 reentry. After his arrest, but before his conviction and sentencing, he went into state court and got the prior felony conviction reduced to a misdemeanor. This change in time does not affect the calculation of time. The focus is the criminal history at the time of the deportation. The 9th concludes that the relevant time for determining whether a prior conviction was a felony for purposes of enhancement is at the time of the defendant's deportation. A relabeling of a conviction does not impact the Guidelines' provision that an enhancement is added if the defendant was previously deported after a conviction for a felony that is a crime of violence. That was the situation here. This follows the 1st, 2nd, 7th, 10th and 11th Circuits.

U.S. v. Watson, No. 09-50666 (2-23-11) (M. Smith with Rawlinson and Jones, D.J., D, Nev.)

It is well settled that if a defendant on SR takes off, the SR violation petition is tolled. This is the fugitive status tolling of the term. However, if the federal authorities get wind of his whereabouts, then the term starts to run again. Here, the defendant disappeared in 1995 to the wilds of Minnesota and eventually was arrested in Texas in 2009. Did his eleven (11) state arrests in Minnesota alert the feds? No, said the district court, and the 9th agreed. The arrests were all for state charges, and the federal law enforcement or federal courts had no constructive or imputed knowledge. The arrest or knowledge had to be traced to the federal authorities.

U.S. v. Hernandez-Guerrero, No. 10-50096 (2-23-11)(Clifton with McKeown and W. Fletcher). This concerns "dates" and when a 1326 starts counting. The defendant here was convicted of a state crime and deported on June 7, 1995. Upon his arrest in 2009, he said that he re-entered on June 29, 1995. Should his offense start running when he re-entered in 1995, or when he was "found in" in 2009? The difference is that the first (1995) would mean his state conviction counted for criminal history; while the 2009 date would mean that it was stale. The district court used the earlier date. The 9th decides to clarify its precedent on the operative date. The 9th looks at 1326 and notes that it has both re-enter and found in language. The two do not have to be exclusive. The re-entry starts the offense; the found in means that each day can be a new offense (which matters if the law changes and the penalties increase). The 9th makes this distinction, and then says that the context of each case will determine relevancy. As for the date in question, it was the result of the defendant's statement to the immigration officer. It was used in the PSR. Since it was not challenged, the court could rely on it for calculations purposes.

U.S. v. Lynn, No. 09-10242 (2-23-11) (Gould with Schroeder and Thomas). Another child porn case presents two interesting issues. First, arising in a sufficiency of evidence challenge, is whether interstate transportation is satisfied solely if the photos or video could be proved to have been shot in a different state. Second, whether there was double jeopardy here for receipt and possession of the same contraband. This case arose from a Limewire investigation, involving file sharing and swapping. The photos/video were found in the defendant's laptop, having been downloaded into a folder and moved to a "saved" folder. The evidence was that one victim was videoed in Georgia and the other in Washington. The argument, aside from lack of knowledge or intent, was that the video was originally produced on one media (say VHS) and then changed to digital. The transformation had to be proved to have crossed state lines. The 9th rejected this argument, holding that the statute, and congressional intent, was that interstate commenced from point of origin, and that the list of types of media were examples and not limited. As for double jeopardy, the government can charge receipt and possession as two distinct crimes, but the government has to show the factual basis, and the change, or use made of the contraband once it was received, and then possession was of a different nature or media. Getting the contraband and keeping it in a file will not cut it. The leading case is Schales, 546 F.3d at 978. Lastly, the vulnerable victim adjustment was not error given the age of some of the victims (infants and toddlers).

Case o' The Week: Silence is Golden (Except at Trial) - Padilla and "No Adverse Inference" Instructions

A slow week in the Ninth lets us stretch back a bit to consider Padilla, a disappointing recent decision on jury instructions and the right not to testify. United States v. Padilla, 2011 WL 420686 (9th Cir. Feb. 9, 2011), decision available here.

Players: Decision by Judge McKeown (below), joined by Judges Hug and D.W. Nelson.

Facts: At the outset of Padilla’s marijuana trial, the defense requested a jury instruction pursuant to Carter v. Kentucky, 450 U.S. 288 (1981) – instructing the jury that it could make no adverse inference from the defendant’s failure to testify. Id. at *1 (this is called a, “no-adverse-inference,” or “Carter” instruction).

Before opening statements the district court gave a different instruction that referred to a defendant’s right not to testify. Id.

At the conclusion of evidence, the judge told counsel it would give the same instructions given in an earlier mistrial of Padilla. Defense counsel did not specifically object to the exclusion of the proposed Carter instruction, and the defense again failed to object when a “no-adverse-inference” instruction was omitted during the final instructions to the jury. Id. at *2-*3.

Issue(s): “This appeal presents two questions: whether the preliminary instruction was sufficient under Carter and, if so, whether Padilla was entitled to a second Carter instruction as part of the final set of instructions.” Id. at *2. “We consider here whether the district court’s preliminary instruction that the jury not consider the defendant’s choice not to testify satisfies the court’s constitutional obligation under Carter.” Id. at *1.

Held: “We hold that it does under the circumstances of this case and affirm the conviction.” Id. “Carter requires an instruction adequate to inform jurors of their obligation to draw no adverse inference from the defendant’s choice not to testify.” Id. at *4. “Under these circumstances, not giving a duplicate Carter instruction at the close of evidence can hardly be characterized as plain error.” Id. at *5 (emphasis added).

Of Note: In her analysis Judge McKeown considers two of the lead Ninth Circuit decisions on the “no-adverse-inference” instruction: United States v. Castaneda, 94 F.3d 592, 596 (9th Cir. 1996), and United States v. Soto, 519 F.3d 927 (9th Cir. 2008). Id. at *2-*4. She concedes that Judge Gould criticized the “bare bones” version of this instruction in Castaneda, and gives a sympathetic ear to his concerns – Castaneda “is troublesome in many respects.” Id. at *3.

In Padilla, however, the instruction given was at least arguably distinguishable from the minimal Castaneda instruction, so the panel concludes that “we need not confront the potential difficulties posed by Castaneda.” Id. If a trial court is foolish or sloppy enough to give the minimal Castaneda bare-bones instruction on a defendant’s right not to testify, note this red flag waived by Judge McKeown for potential en banc review.

How to Use: There is some troubling language in at the end of Padilla rejecting a defendant’s constitutional right to have a Carter instruction given twice – once when the jury is sworn, and again before deliberation. Id. at *4. Make sure, however, that AUSAs or trial courts understand the context of this language.

In Padilla, the trial was only four days long, there was no reference in the government’s closing argument to the defendant’s failure to testify, and the defense twice failed to request an additional Carter instruction at the conclusion of the trial. Id. at *5. This was, therefore, not plain error.

Not clear if the decision would have come out the same way if Padilla had asked for the Carter instruction at the close of evidence. Like renewing a Rule 29 motion, we should add “request no-adverse-inference-instruction” to the defense check-list of tasks at the end of trial.

For Further Reading: Is one vague instruction on the Fifth Amendment right to remain silent, at the outset of a criminal trial, enough to adequately educate the jury on this critical concept?

Simply put, “no.”

For a fascinating discussion on real jurors’ very real adverse inferences drawn against our silent clients, see Frank & Broschard, The Silent Criminal Defendant and the Presumption of Innocence: In the Hands of Real Jurors, is Either of Them Safe?, 10 Lewis & Clark Law Rev. 237 (2006).


Image of the Honorable Judge Margaret McKeown from http://upload.wikimedia.org/wikipedia/commons/4/44/M-Margaret-McKeown-2009-US-Courts.jpg



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


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U.S. v. Garcia-Guerrero, No. 09-50614 (2-18-11) (Holland, Sr. D.J., D. Alaska with Pregerson and Clifton). Importation can be a taxing crime. The defendant was caught bringing 10 gallons of hypophosphorous acid across the border. This is a precursor ingredient for meth. The defendant said he thought it was battery acid, but knew that it was illegal. The defendant plead to an Information charging him with failure to declare imported merchandise to customs agents in violation of 18 U.S.C. 545. At sentencing, the guideline was 2T3.1(a)(3), with a base offense level of four (4) because of the low value. Wait, said the government, a cross reference in 2T3.1 referring to higher guidelines for tax losses should apply. The cross reference would lead to 2D1.11, which governs distribution of precursor chemicals. The court agreed, and gave a 46-month sentence. Gulp! The 9th, however, vacated and remanded. It held that the court erred in applying the cross reference. The defendant plead guilty to failure to declare; there was no plea to the knowledge that the acid was for drugs. The Guideline for the offense concerns revenue, and any cross reference should have been for tax value, not drugs. Section 2D1.11 was not intended for 545.

Harrison v. Gillespie, No. 08-16602 (2-15-11) (en banc: M. Smith; Kozinski concurrence; Thomas dissent and Reinhardt dissent). The jury said it was hung on the penalty phase of a capital trial. It was pretty clear in the notes and the proposed verdict forms that death was off the table, and the choices were between LWOP, LWP, or a term of years. Before the jury was discharged, the defendant asked that the jury be polled. The trial judge declined and discharged the jury. The petitioner then argued that the death penalty was barred by double jeopardy. Sitting en banc, the 9th concluded that the trial judge neither abused its discretion nor subjected petitioner to double jeopardy in discharging the jury because of the deadlock. The 9th held that there was not a constitutional right to inquire into the possibility of a preliminary decision against the death penalty. Allowing the court to do so would risk coercion. Moreover, preliminary jury votes are that: preliminary. The verdict is not final until stated in open court. A refusal to poll by the court fell within the court's sound discretion. Concurring, Kozinski argues that the petitioner could have, and should have, asked for a special verdict. Dissenting, Thomas (joined by Reinhardt, W. Fletcher, Fisher, and Berzon) argue that the judge acted summarily in discharging the jury, and that by all indications, the jury had reached an acquittal on death, and should have been polled. State statutes allowed for various sentences, as did the capital structure, and the jury seemed to have decided on lesser sentences, and split there. The judge's actions in declaring a mistrial were not manifestly necessary, and violated double jeopardy. The judge should have polled. The polling would not have lead to a new rule, or right, but under these circumstances, was required. Reinhardt, also dissenting, emphasizes the clear violation of manifest necessity, and the result is the more egregious given the death penalty. Death is different.

U.S. v. Valdovinos-Mendez, No. 09-50532 (2-15-11) (Jarvey, D.J., S.D. Iowa with Schroeder and Tallman). In a 1326 illegal re-entry case, the 9th acknowledges that the admission of a "non-existence of record" (CNR) did violate the constitutional right to confrontation. However, the error was harmless as the agent had testified that the A-file was bereft of any indication requesting admission, and the agent was subject to cross examination. This was also not an error under the best evidence rule, which goes to admitted contents of writings, and not records of missing documents. As for the prior conviction for assault with a deadly weapon or by force likely to produce great bodily injury under California law, that qualifies as a "crime of violence." See U.S. v. Grajeda, 581 F.3d 1186 (9th Cir. 2009). Lastly, Almendarez-Torres is still good law as to prior convictions.

Fairbank v. Ayers, No. 08-99018 (2-15-11) (Thomas with Schroeder and Gould). The 9th affirms denial of a habeas capital petition. The 9th found no IAC in the lack of mitigation investigation claims. Strategic choices were made by defense counsel. The 9th also deferred to the state court's determination that the prosecutorial misconduct claim was procedurally. There was also a lack of state involvement in the Massiah claim.

Case o' The Week: Tucson & Thomas - Flyer and Possesion of Child Porn

Child porn on appeal: can you get a fair shake?

Does the Ninth deal with the emotionally-charged issues of child pornography in a neutral, detached, and rigorous analysis, with decisions dictated solely by the record and controlling law and not swayed by the nature of the crime? Or are outcomes in the Ninth arguably affected by the reprehensible crime at issue?

Yes -- both (and sometimes, in decisions delivered the same week). See United States v. Flyer, 2011 WL 383967 (9th Cir. Feb. 8, 2011), decision available here; compare United States v. Krupa, 2011 WL 353212 (9th Cir. Feb. 7, 2011), decision available here.

Players: Big win by ND Cal CJA attorney Nina Wilder. Admirable and courageous decision by Judge Sidney Thomas, above right.

Facts: Again the Ninth confronts Tucson agents with too much time on their hands. As in Wright, 625 F.3d 583 (9th Cir. 2010), in Flyer the same FBI agent -- Robin Andrews -- trolled the internet and downloaded child porn. These images allegedly came from Flyer’s IP address. Id. at *1, *5. A search of the residence produced a PC and other digital gear. Id. at *2. Child porn was found in the unallocated space of the PC: Flyer was charged with possession and convicted at trial. Id. at *2-*3.

Issue(s): “Flyer argues there was insufficient evidence to establish that he exercised dominion and control over the images recovered from the unallocated space on the hard drive. Alternatively, he argues that even if he could said to have ‘possessed’ the images before their deletion, no evidence indicated that the possession occurred during the time period charged in the indictment.” Id. at *6.

Held: “We conclude that Flyer’s conviction must be reversed . . . . The government concedes that it presented no evidence that Flyer knew of the presence of the files on the unallocated space of his Gateway computer’s hard drive. The government also concedes it presented no evidence that Flyer had the forensic software required to see or access the files. Unlike Romm, there is no evidence here that Flyer had accessed, enlarged, or manipulated any of the charged images, and he made no admission that he had viewed the charged images on or near the time alleged in the indictment.” Id. at *7.

Of Note: In Flyer, Judge Sidney Thomas maintains his reputation as one of the most thoughtful jurists in the country on the intersection of technology, the Fourth Amendment, and criminal law. See also United States v. Kelley, 482 F.3d 1047. 1055 (9th Cir. 2007) (Thomas, J., dissenting); United States v. Comprehensive Drug Testing, 513 F.3d 1085, 1116 (9th Cir. 2008) (Thomas, J., dissenting) (overruled reh’g en banc).

If the White House can ever manage to look West of New York's five boroughs, here’s the rare judge who thoroughly understands the technological issues that will be facing the future high Court.

How to Use: Start with Flyer for any child porn case. It discusses jurisdictional requirements, id. at *5, Trombetta destruction of evidence in the context of forensic analysis, id. at *3, and states a great new rule: “deletion of an image alone [leaving the file in unallocated space] does not support a conviction for knowing possession of child pornography on or about a certain date within the meaning of § 2255(a)(4)(B). Id. at *7.

It also gives a sobering reminder for trial practice – make and renew Rule 29 motions! “Here, Flyer did not renew his motion for judgment of acquittal at the close of the evidence and thus did not preserve his claim. Accordingly, we apply plain-error review . . . .” Id. at *5. With this very good panel Flyer still prevailed on plain-error review, but better not to put appellate counsel in that tough position.

For Further Reading: Though Flyer is great, last week also brought the very disappointing Fourth Amendment / child porn decision in United States v. Krupa, 2011 WL 353212 (9th Cir. Feb. 7, 2011). In Krupa, a single Ninth Circuit judge (we believe) steers the Court far from its previous authority in Battershell. Id. at *2-*3. As dissenting Judge Berzon correctly complains, “The majority seems to imagine ‘probable cause’ as a cloud that follows certain people around, created by their idiosyncratic habits and irresponsible friends, and persisting even though the individuals are not suspected of any particular crime.” Id. at *4 (Berzon, J., dissenting).

Judge Berzon ends her dissent with a thoughtful reflection: “I cannot help but think that had this case involved anything but child pornography, it would come out differently. I fear that understandable abhorrence of this particular crime can infect judicial judgment. We would do well to remember that the protections of the Fourth Amendment do not depend on the nature of the suspected criminal activity, any more than they do on the race or gender of the suspect. And that is particularly so where the issue is the searching of personal computers, on which more and more extremely sensitive information is stored.” Id. at *8.

Judge Berzon is right: Krupa deserves en banc review.


Image of the Honorable Judge Sidney Thomas from http://billingsgazette.com/news/local/article_0ef0a836-53e8-11df-b237-001cc4c002e0.html The New Yorker's view of the World from http://mappery.com/maps/A-View-of-World-from-9th-Avenue-Map.mediumthumb.jpg


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

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U.S. v. Padilla, No. 09-10451 (2-9-11) (McKeown with D. Nelson and Hug). A court has a constitutional obligation to give a "no-adverse-inference" instruction to the jury if the defendant exercises his right to remain silent. Carter v. Kentucky, 450 US 288 (1981). Is this obligation satisfied, in this instance, by a court's preliminary instruction to the jury? The 9th holds that it does, but makes clear that its decision is under the circumstances here. This appeal follows a retrial after a hung jury on drug conspiracy and importation charges. At the second trial, the defendant had submitted a Carter instruction for the final instructions. However, in the discussions and conferences at the end of the case, when the court said it would give the instructions it gave at the first trial, defense counsel had no objection. The Carter instruction was subsequently not given. It was given at the start of the case. The 9th, in considering the issue, noted that prior precedent in U.S. v .Castaneda, 94 F. 3d 592 (9th Cir. 1996), had deemed a "presumption of innocence" type instruction, given in voir dire, sufficient. However, another panel, U.S. v. Soto, 519 F.3d 927 (9th Cir. 2008), and specifically Gould in a concurrence, questioned the validity of Castenada. This panel here though, under these circumstances, found the instructions sufficient. The trial was short, and a Carter instruction was given as a preliminary instruction. Moreover, defense counsel did not object. Still, this is an issue that should be noted, and raised.

U.S. v. Flyer, No. 08-10580 (2-8-11) (Thomas with Kleinfeld and Tashima). In this child pornography case, the 9th reverses convictions on three counts: two counts for lack of jurisdiction and one count for insufficient evidence. In an undercover operation, the FBI downloaded various files of child porn through a file sharing program, LimeWire. The address was traced back to the defendant. At trial, the government failed to prove for two counts of transportation of pornography that the files had traveled interstate; the files moved intrastate from the defendant to the FBI, but no evidence of crossing state lines. On count three for possession, the evidence was in the unallocated space on the computer, which the government failed to show when the files had been created, received, viewed or even possessed. The unallocated space contains trash data, and it cannot be accessed without forensic software. The 9th denied defendant's argument that the government had destroyed evidence when it mishandled the copying of the computer files, and that there was no basis for a Franks hearing.

Wilson v. Knowles, No. 07-17318 (Noonan with Silverman; dissent by Kozinski). The 9th finds that Apprendi error occurred when a state court made fact findings arising from the petitioner's prior conviction that was used to enhance his sentence. The petitioner was before the state court for a DUI with a prior felony conviction. The state court examined two prior felonies; for one of them, proximately causing bodily injury under the influence, the state court examined an information and a preliminary transcript. The court then found that the petitioner had personally caused the injury, that the injury was great, and the victim was not an accomplice. This counted as a third strike and resulted in a 25- to life sentence. On appeal from the district court's denial of the petition, the 9th held that there may be disagreement over the precise boundaries of Apprendi's prior conviction exception, but the exception was overstepped in this case. It was unreasonable to allow a judge to find the kind of disputed facts here. The fact finding was also not harmless given the context, and what the petitioner could have challenged 17 years ago. Kozinski, dissenting, argues that AEDPA prevents such a finding. The state court's decision was not unreasonable, and there was no Supreme Court decision precisely on point.

U.S. v. Kent, No. 10-10011 (Gould with Callahan and Korman, Sr. D.J., EDNY). In Bordenkircher, the Supremes held that it is not vindictive prosecution for the government to threaten to increase the charges as part of plea negotiations. In this case, the 9th uses Bordenkircher to allow the government to require cooperation so as to avoid the filing of a 851 sentencing enhancement. The defendant here faced a crack charge. The government said that if he cooperated, no enhancement would be filed. The defendant tried to plead guilty to the charge, and to argue that by pleading, the government could not then file an enhancement. The district court did allow the government to file. The 9th found no error in the court's allowing the government to file even when the defendant was attempting to plead. Moreover, the prosecutor's actions were not vindictive as it could set conditions to what charges it filed. The only good thing that came out of this opinion is that the 9th cleared up the standard of review for prosecutorial vindictiveness. When it concerns a matter of law, or application of law, it is de novo.

Apprendi Win in Three Strikes Case

John Balazs, panel attorney in Sacramento and former Assistant Federal Defender in the Eastern District of California, won a significant victory this morning in Wilson v. Knowles, No. 07-17318. The Ninth Circuit held that the California courts violated Mr. Wilson's right to due process under Apprendi v. New Jersey, 530 U.S. 466 (2000). Mr. Wilson was convicted following trial of driving under the influence with a prior felony conviction. At sentencing, the state court judge concluded the conviction was his third strike under California's so-called "three strikes and you're out" law, and sentenced him to 25 years to life. In order to conclude that this was his third strike, the sentencing judge examined two prior convictions that stemmed from a single accident. In 1993, Mr. Wilson was convicted of gross vehicular manslaughter while driving under the influence of alcohol and causing bodily injury while driving under the influence of alcohol. The sentencing judge in the three-strikes case made three factual findings about those prior convictions -- none of which were necessary to the convictions -- that increased his sentence beyond the statutory maximum for driving under the influence witha prior felony conviction: (1) Mr. Wilson personally inflicted bodily injury on one of the car's passengers; (2) the injury was great; and, (3) the victim was not an accomplice.

The majority opinion, written by Judge Noonan and joined in by Judge Silverman, concluded that these findings did not fall within Apprendi's exception for prior convictions. "[T]he kinds of disputed facts at issue here -- such as the extent of the victim's injuries and how the accident occurred . . . are not historical, judicially noticeable facts; they require a jury's evaluation of witnesses and other evidence." Slip op. at 2410-11. The majority also concluded that the error was not harmless because "[n]o court could now look at the disputed facts about an accident seventeen years ago and conclude beyond a reasonable doubt that Wilson would have been convicted of personally inflicting great bodily injury." Id. at 2411. Chief Judge Kozinski dissented, relying on the Antiterrorism and Effective Death Penalty Act's limitation on federal habeas relief, because, in his view, the extent of Apprendi's prior conviction exception isn't "clearly established."

California law has numerous felony recidivist enhancements, so many prisoners, particularly those serving three strike sentences, may be able to take great advantage of Wilson.

U.S. v. Krupa, No. 09-10396 (2-7-11) (Callahan with Wolle, Sr. D.J., S.D. Iowa; dissent by Berzon). Does a single photo of a nude teenager from "www.nude-teens.com" on a computer give rise to probable cause to search a computer? The 9th finds it would, when taken in context of the surroundings -- a distraught mother wondering where her kids were, a house on a military base where the father of the kids is abroad, and the kids in the care of another male adult, with the house in disarray and 15 computers. These factors gave rise to a suspicion that justified a search warrant, which found more minor pornography. Dissenting, Berzon takes the majority to task for affirming the search warrant. Probable cause, Berzon notes, is not some "cloud" that follows a person around, and a person's idiosyncrasies, or quirks, should not trigger a search. Here, the single photo of a teen that might have been around 17, and the name of a web site. The other factors, such as the messiness, absence of father (although a note stating that the kids were in the care of the defendant, and the number of computers, does not lead to a conclusion that porn was contained in the computers. Berzon would also find that Leon's good-faith exception also did not apply as the affidavit was extremely bare-bones.

U.S. v. Fox, No. 08-30445 (2-7-11) (O'Scannlain with Tallman and Moskowitz, D.J., S.D. Ca). In Dillon, the Supremes over-ruled the 9th's decision in U.S. v. Hicks, 472 F.3d 1167 (9th Cir. 2007), which allowed a court to treat the Guidelines as advisory in a retroactive sentence modification proceeding. Dillon held that the court, in resentencing, was bound by the Sentencing Commission's Policy Statement which mandated that a sentence modification proceeding may not reduce the sentence below the amended Guideline range. This case had reduced the sentence below the retroactive amendmended Guideline range, and the 9th had taken it en banc. In light of Dillon, however, it was sent back to a three-judge panel for consideration of the challenges to the policy statement. The defendant argued that the policy statement failed to comply with the procedural requirements for a Guideline amendment. In other words, since the policy statement was like a Guideline, operated like a Guideline, and had the force of a Guideline (cf "walk like a duck....."), it was a de facto Guideline, and so it had to follow certain procedural steps for notice and comment. The 9th rejected this, finding that the Supremes had pretty much foreclosed the argument, and that the Guideline-light argument failed because policy statements were meant to interpret, which is what 1B1.10 did here.

U.S. v. Smith, No. 10-10036 (2-3-11) (Gould with Callahan and Korman, Sr. D.J., E.D.N.Y.).

You can ride, but not only can you not hide, but it gives reasonable suspicion to seize you. The defendant crossed in front of a police car. The officer sounded his siren twice, got out of the car, and ordered the defendant to "stop!" The defendant asked, "Who me?" "Yes," said the officer. The defendant asked if he was under arrest; the police said "no" and the defendant backed away and then took off. The police pursued, caught him (he tripped), and found a gun. The defendant was a prohibited possessor (felon in possession). In court, and on appeal, the defendant argued that he was seized with the order to "stop." The district court held he was not, and the 9th affirms. The 9th declines to say that a momentary hesitation and eye contact prior to flight is a submission to authority. The question -- Who me? -- and then backing away and running, does not constitute a seizure. Hesitation is not a seizure. The defendant was seized when he was apprehended. This seizure was with reasonable suspicion because the defendant took off. If the defendant had walked away, or gone about his business, the police could not have stopped him without more. The running was suggestive of wrongdoing and reasonable.

Case o' The Week: An Unwelcome Valentine - Smith and Fourth Amendment Seizures

Not a big Valentine fan?

Neither are we -- particularly when the Valentine at issue is a bad Third Circuit decision imported into the Ninth, with a "seizure" analysis that erodes Fourth Amendment protections for our indigent clients. United States v. Smith, 2011 WL 339209 (9th Cir. Feb. 3, 2011), decision available here.

Players: Hard-fought appeal by D. Nev. AFPD Jason Carr and Defender Franny Forsman, decision by Judge Gould.

Facts: Smith walked in front of a cop’s car in a high-crime neighborhood. Id. at *1, *4. The cop hit the siren, pulled over, and told Smith to stop and come stand in front of the car. Id. at *1. Smith turned and asked, “Who, me?” or “What for?” Id. The cop repeated the command for Smith to come in front of the car. Id. Smith later testified (see holding below), and the cop’s account differed. The cop testified that Smith ran, tripped, and when the cop caught up Smith admitted having a gun. Id. Smith was charged with § 922(g). The district court didn’t resolve conflicting versions of the facts, but held that under either story Smith wasn’t seized so suppression wasn’t warranted. Id. at *2. Smith entered a conditional plea and appealed the denial of the suppression motion

(Ed. note: this was the D. Nev. and Smith was permitted a conditional plea – if this was in the ND Cal, Smith would have had to run a stipulated facts bench trial to preserve this appeal, and would have lost the third acceptance level as a result).

Issue(s): “[ ] Smith challenges the decision of the district court to deny his motion to suppress a firearm that was recovered from his person by a police officer. We must decide whether Smith’s actions constituted submission to a police officer’s show of authority, thereby triggering the Fourth Amendment’s requirement that the officer have reasonable suspicion before effectuating a seizure.” Id. at *1.

Held: “We hold that Smith was not seized until after he fled the presence of a police officer, and that Smith’s flight under the circumstances gave the officer the reasonable suspicion required to effectuate a seizure.” Id. at *1. “Smith’s Fourth Amendment rights were not violated by the attempted stop, even if the officer did not have reasonable suspicion, because the attempted stop was not a seizure for Fourth Amendment purposes.” Id. at *2. “By his own testimony, Smith did not yield to the officer’s commands. Smith turned toward the officer, asked some questions, took a few steps towards the patrol car, but then backed away. Smith asked if he was under arrest, and [the cop] told him ‘no.’ When the officer continued to issue commands, Smith turned and ran. Like the suspect in Hodari D. who ‘was not seized until he was tackled,’ Smith was not seized when he initially hesitated and engaged in a short verbal exchange with [the cop]” Id. at *3. “Because Smith did not submit to the officer’s show of authority, and because he was not otherwise coerced or physically forced to submit, Smith was not seized within the meaning of the Fourth Amendment during his initial encounter with the officer.” Id.

Of Note: “Submission to the cop’s show of authority” will be the threshold issue for suppression cases involving flight. In Smith, the Ninth unfortunately adopts the Third’s regrettable analysis on the issue from United States v. Valentine, 232 F.3d 350 (3d Cir. 2000). Id. The result? The more aggressive a cop’s initial bluster with our clients (even without cause to stop), the better the chance of quick flight, and the more likely a suppression motion will falter. Cops and the defense bar instantly understand the real-world impact of Valentine: Smith, sadly, does not.

How to Use: Judge Gould concedes that “[t]here may be circumstances where a person’s flight has a perfectly innocent and reasonable explanation” that would still permit a suppression motion. Id. at *4. Closely read Smith’s Section III before running that theory, though: not exactly a generous view of Fourth Amendment seizures.

For Further Reading: The best article on conditional pleas is thirty years old. See Conditional Guilty Pleas, 93 HVLR 564 (1980). Here’s a suggestion for law students looking for a Note subject: unwarranted disparities among federal USAOs in their approach towards conditional pleas. Start with the blog for contrasting examples. See posts here. Take a look at how the PROTECT Act and the freeze on conditional pleas unfairly chill appellate rights. See, e.g., United States v. Espinoza-Cano, 456 F.3d 1126 (9th Cir. 2006). Run a couple of FOIA requests by U.S. Attorney’s offices on their policy and numbers of conditional pleas permitted. And send us a copy when published – it’ll earn you a blog shout-out.


Picture of cupid from http://collegecandy.files.wordpress.com/2009/01/20/cupid-valentines-day1.jpg .


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

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Stanley v. Cullen, No. 08-99026 (1-31-11) (W. Fletcher with Tallman and Bybee). In this capital habeas, the petitioner raises issues that revolve around his competency. Was he competent at the time? Should his counsel have raised competency at the guilt phase? Should the court sua sponte have delved into the competency issue? Lastly, was it proper to remand to the state court to determine whether a retrial on competency was proper given the finding of juror misconduct during the state competency trial (separate from the capital trial). The 9th denied the petitioner's claims revolving around competency. Focusing on what the court could know, the 9th concluded that the state court judge did not err in not raising competency. The petitioner, at the time, presented himself as competent. The counsel likewise at the time were not ineffective for not raising competency earlier (they raised it at penalty and not guilt). The manifestation occurred later. The procedure the district court approved -- remanding to the state court to determine if a competency retrial was feasible -- was acceptable, and the decision did not have to be made by the federal court.

U.S. v. Morris, No. 10-10009 (2-2-11) (Per curiam with Wallace, Noonan, and Silverman). The ground-hog of due process emerged, saw the shadow of Bordenkircher v. Hayes, 434 U.S. 357 (1978), retreated, and predicted a continued long winter of take-it-or-leave-it pleas. The defendant here was given a Hobson's choice: not litigate the case, plea to a 10-year mandatory minimum, and testify at an upcoming murder and drug trial of a gang leader OR the government would file a 851 drug enhancement and he would face a 20-year mandatory minimum. The time for the deal lapsed, and the enhancement was filed. The district court struck the enhancement information because the deal "offended due process." The defendant had to give up most of his rights; and this so-called deal had no give-and-take. On the government's appeal, the 9th found this case was indistinguishable from Bordenkircher. In Bordenkircher, the Supremes held that a prosecutor's decision to carry out a threat made during plea negotiations does not violate due process. In Bordenkircher, the threat was a recidivist enhancement. Here, it was the same, along with the added condition of testifying, but that did not change the analysis. The government can make its best offer, with conditions, up front, which is what happened here. Due process was not violated.

U.S. v. Munoz-Camarena, No. 09-50088 (1-28-11) (per curiam -- B. Fletcher, Pregerson, Graber). The defendant had three prior California convictions for simple possession. Under Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), the second or subsequent prior convictions do not qualify as aggravated felonies when the state convictions are not based on the fact of a prior conviction. That was the situation here. The government, however, argued that a remand was unnecessary because any error was harmless. The sentencing court had stated that it intended to sentence the defendant to 65 months regardless of whether the felony was aggravated under the guidelines, or the enhancement was 4 or 8 levels. The 9th, however, said that the guidelines must be calculated correctly, and a different calculation may have influenced the sentence. The court, for example, would have to explain the extent of any variance, and a "one size fits all" explanation does not suffice. There is strong language about the need for a remand.

Congratulations to Federal Public Defenders of San Diego, Erica Zunkel, Steve Hubachek, and Kristi Hughes.

U.S. v. Lichtenberg, No. 09-10191 (1-27-11) (Hawkins with McKeown and Rawlinson). An elderly client in Louisiana hired the defendant to complete a real estate transaction in Hawaii. The client gave explicit instructions as to the funds from the sale, paying the defendant a sum for his assistance. The defendant completed the sale, but instead of wiring the money to the client, the funds instead were wired to Indonesia, and put in the defendant's banks. After a lengthy prosecution and investigation, about half the funds (approximately $170,000) were still missing. The court sentenced the defendant to 112 months, above the guidelines range, with a number of factors including the continued withdrawal of interest by the defendant's wife from the foreign bank. On appeal, the 9th counted as criminal history a prior state violation of protective order, finding that it was not similar to the excluded conviction, under the guidelines, of contempt of court. The breach of a Hawaiian protective order is not similar to contempt of court, and so it counts as criminal history. The focus of the protective order was to protect a victim (it arose from a domestic violence incidents with ex-wife); contempt of court is aimed at the process. The 9th looks at the actual punishment and the types of conduct. As for the sentence, it was deemed reasonable and the explanation sufficient.

In a losing cause, the 9th still singled out defendant's counsel (FPD Peter Wolff) for his efforts and his "thoughtful argument."

U.S. v. Leyva-Martinez, No. 10-50269 (per curiam: Goodwin, Rymer and Graber). The defendant, in a 1326 case, raised the Almendarez-Torres claim that his prior must be proved. He argued that Nijhawan v. Holder, 129 S. Ct. 767 (2009) over-ruled Almendarez-Torres. The 9th expressed some skepticism, since Almendarez-Torres was not even mentioned in Nijhawan, and so granted summary affirmance. However, while the circuit courts are rubber stamping dismissals on Almendarez-Torres, commentators are wondering whether the Court is ready to reconsider.

U.S. v. Potter, No. 09-30266 (1-26-11) (per curiam with Graber, M. Smith, and Benitez, D.J for the S.D. Ca). The 9th rejects a constitutional challenge to a conviction for possession of a firearm in furtherance of drug trafficking. The defendant argues that because the weapon was in his home, he had the right to possess it. The 9th agrees that in Heller, the Supremes held that the right to bear arms is a personal right, rather than a collective or State right. However, the 9th scoffs at the proposition that the Second Amendmentment guarantees a right to use a weapon for drug sales. Heller recognizes the right for "lawful" purposes. Drug trafficking is not a lawful purpose.

U.S. v. Jenkins, No. 09-10109 (1-25-11) (B. Fletcher with Tallman and Rawlinson). This was a "pump and dump" scheme, where the defendants sought to secretly acquire shares of a corporation, artificially inflate their value, and then quickly sell the shares, laundering the proceeds. The defendants' company supposedly developed technology to detect flaws in circuit boards in the late 1990s. These claims were false, but the defendants created shell corporations that supposedly bought shares, and puffed up claims. Shares were sold, but the scheme began to unravel in 2001. Subsequently, the defendants were convicted on numerous securities and wire fraud counts and money laundering counts. Evidence of the scheme supposedly lay in Canada. The interesting issue here is the running of the statute of limitations, and whether 18 U.S.C. 3292 suspended the running of the statute of limitations for all the counts. The section allows the suspension of the statute if the court finds that the government reasonably believes that evidence of a crime under investigation by a grand jury is in a foreign country and has asked for that evidence. The suspension lasts, within limits, until the foreign government has taken "final action" on the official request. The defendants argued that the government failed to provide evidence to support its claims, and that the request must be made to the court, or acted upon, before the statute can be suspended. The 9th did hold that the government had to produce some indicia of reliability to support its request; however, the indicia is quite broad and the government met it here. The 9th also held that the statute's suspension starts when the government makes the request to the foreign government and before an indictment is returned. This is stated in the statute. The 9th also found that the suspension continued until the government got a final response, and that the letters from Canada about the requests were not dispositive. Some evidence was sent, and other steps needed to be taken were outlined. Bottom line was that the statute of limitations was properly suspended. The 9th affirmed the convictions, finding sufficient evidence was presented on the fraud and laundering counts.

U.S. v. Burgam, No. 09-50449 (1-25-11) (Fisher with Gould; dissent by O'Scannlain). The defendant pled guilty to two counts of bank robbery. The bank robberies were conducted by the defendant pretending to be a FBI agent, talking to the bank manager, and then handcuffing the manager with a metal box that supposedly contained a bomb. The two bank robberies resulted in over $250,000 in losses. A few years after the robberies, after the defendant learned he had been indicted, he turned himself in. The plea deal was negotiated over a pre-plea draft PSR. The probation officer, though, made a clerical error, and had released the wrong draft to the parties. The defendant went from a range of 108-135 to 188-235. The court considered mitigating and aggravating factors, and finally decided on a sentence of 180 months. The 9th rejected the defense argument that the court started from the statutory maximum and worked down; rather, the court had started from the guidelines range, although he had mentioned the stat max. The sentence was also reasonable under the circumstances. The 9th vacated and remanded however because the court had treated the defendant's inability to pay restitution as an aggravating factor. The 9th found that this was ill-advised, and although it opined that the court probably did not give it great weight, the fact that the court considered it, and then did not say what part it played in formulating the sentence, required a remand. In dissent, O'Scannlain finds that the sentence was based on the violent terrifying acts of the defendant, and that the mention of inability to pay restitution was incidental and at most harmless.

Congratulations to Alexandria Yates and Sean Kennedy of the FPD Office, Los Angeles.

U.S. v. Gonzalez-Diaz, No. 10-30002 (1-24-11) (Fisher with W. Fletcher and Jones, D.J., W.D. Va.). In this 1326 case, the defendant, an undocumented alien illegally in the U.S. for several months, took a trip to Canada on June 19, 2009. Bad move. At the Canadian point of entry, he was stopped, examined, transported 55 miles, kept overnight in a jail, questioned, excluded, driven back to the POE, and handed over to U.S. immigration authorities. Officially restrained? He argues that he was not "found in" the U.S. because he was under official restraint when he re-entered the U.S. The 9th held that he was not. His brief physical presence in Canada did not result in his entering the U.S. from a foreign country. He was never allowed into Canada, and so his being handed over to the U.S. was not a re-entry. This is controlled by U.S. v. Ambriz-Ambriz, 586 F.3d 719 (9th Cir. 2009).

U.S. v. Carothers, No. 10-50191 (1-24-11) (Fisher with Bybee and Strom, Sr. D. J., D. Neb.). The trial was about whether the defendant was possessing drugs for himself (stocking up), or whether he was possessing with intent to distribute. The court gave the lesser of possession, and instructed on the lesser. The jury deadlocked on the greater offense, and was unanimous on the lesser. However, the jury form failed to allow the jury to so declare its verdict. The court thereupon declared a mistrial on both the greater and lesser offenses. The court subsequently recognized its mistake, and dismissed the indictment. The court believed it had to because of (1) double jeopardy; (2) U.S. v. Jackson, 726 F. 2d 1466 (9th Cir. 1984)(per curiam); and (3) practical problems. On the government's appeal, the 9th reverses and remands. The 9th first concludes that a declaration of mistrial is not an equivalent of acquittal on the possession charge. The greater charge remained. Moreover, there is no issue preclusion effect since no fact finding was reported. In Jackson, the 9th allowed a jury to consider a lesser offense if unable to reach a verdict on the greater. It did not have to acquit on the greater first. Jackson does not preclude retrial on the greater. Here, the defendant could be argued to have avoided the wrongful conviction on the greater by the Jackson alternative. Lastly, the defendant can waive his double jeopardy right to be retried on the simple possession in order to get the instruction in the retrial. It is his choice.