U.S. v. Maier, No. 09-10397 (4-27-11) (B. Fletcher with Tallman and Rawlinson). The defendant pled straight up to two counts. Count one was receipt and distribution of child porn; count two was possession of the same. Defendant, a Naval police officer, when caught with the laptop in his dorm, admitted that he was addicted to child porn; that he was disgusted with himself; that he had turned in others to allay his feelings; and that he had been addicted since he was 17. At sentencing, the agent testified as to the thousands of photos sent and received; the young ages of the victims (some as young as one and three); and some of the disturbing images. Because the defendant pled to possession and receipt/distribution, the court had to vacate one for double jeopardy. The court vacated the possession, and sentenced on the receipt/distribution. The 9th upheld. It analyzed the double jeopardy issue as akin to sentencing, and that 3553 factors were implicated. In weighing and balancing these factors, and using the test in Rita, the court held that the receipt/distribution, with the higher penalty, was appropriate. Moreover, there is a presumption that the lesser offense should be vacated. The court did not abuse its discretion. The sentence was neither procedurally nor substantively unreasonable (210 months with lifetime supervision).

U.S. v. Sandoval-Gonzalez, No. 09-50446 (4-25-11) (Reinhardt with Kozinski and Wardlaw). In a 1326 prosecution, is "derivative citizenship" an affirmative defense? No, answers the 9th. In this prosecution, the defendant, who was born in Mexico but whose father was an American citizen, cross-examined an agent about derivative citizenship. The government argued that it was improper, and at jury instruction time, took up the court's invitation to argue that there was a presumption that a person born abroad was an alien. Only one thing wrong with such a presumption: it was wrong. The government had to prove alienage as an element. A presumption of alienage shifted the burden to the defendant. Derivative citizenship, moreover, is not an affirmative defense; it goes to proof of the alienage. The error was not harmless. However, the defendant does not get a Rule 29 acquittal.

Congratulations to Hanni Fakhoury of the Federal Defenders of San Diego.

Miller v. Oregon Board of Parole and Post-Prison Supervision, No. 07-36086 (4-25-11)(Burns, D.J. S.D, Calif., with Paez and Clifton). The 9th finds that an Oregon statute does indeed create a liberty interest in early eligibility for parole. Although there is a liberty interest, under Swarthout v. Cooke, 131 S. Ct. 859 (2011), a federal court only looks to whether procedural due process was followed rather than whether the decision as to eligibility was correct. Oregon gave procedural due process.

Case o' The Week: Don't Mess with (Park) Rangers - Bibbins, Willfulness, and "Resisting"

The bad news is that Kevin Bibbins had a broken leg, was forced to walk on it to respond to rangers' orders, was hammered with a taser (twice) when he tensed up (until he collapsed onto the ground) -- and ultimately lost his appeal for resisting arrest.

The good news is that he created some good new mens rea law along the way. United States v. Bibbins, 2011 WL 1486095 (9th Cir. Apr. 20, 2011), decision available here.

Players: Nice win on legal issue (though sadly, facts got in the way for reversal) for AFPD Richard Boulware, D. Nev.. Decision by Judge Paez.

Facts: Park rangers stopped Bibbins, who was driving a motor home, in the Lake Mead National Recreational Area. Id. at *1. The rangers and Bibbins bickered over an obstructed license plate; the rangers then ran Bibbins’ info and discovered an active felony warrant. Id. Bibbins’ prior charges, they learned, included assaulting officers and other violent conduct. Id. The four rangers decided to use a microphone and order Bibbins to walk out of the motor home and to the back of the truck, to be arrested. Id. Bibbins left the truck, as instructed, but limped and complained that his leg was broken. Id. When he got to back of the truck he tightly gripped the tailgate because of pain in his leg, and for fear it would break again. Id. at *2. He was instructed to spread his legs; when he didn’t his arms were grabbed, he allegedly tensed his arms, and he was ultimately tased (twice). Id.

Having been twice electrocuted, he fell to the ground “then complied with all of the rangers’ instructions.” Id.

At the misdemeanor trial, a defense doc confirmed that Bibbins’ leg was in fact broken, had not healed, and confirmed it would have been painful to walk. Id. The magistrate found Bibbins guilty of resisting arrest, a violation of 36 C.F.R. § 2.32(a)(1). Id.

Issue(s): “Bibbins contends that the ‘resisting’ offense of 36 C.F.R. § 2.32(a)(1) contains a willfulness element and that the evidence at trial was insufficient to show that he acted willfully. The question of the mens rea requirement for a violation of the “resisting” offense of § 2.32(a)(1) is one of first impression for this court.” Id. at *3 (footnote omitted).

Held: “As the magistrate judge noted, the dictionary definition of the word ‘resist’ is: ‘to exert oneself to counteract or defeat, strive against: OPPOSE.’ Webster's Third New International Dictionary 1932 (1993 ed.) (capitalization in original). From this definition, we do not think a person can ‘resist’ someone or something without forming an intention to do so. Accordingly, we hold that the resisting offense of § 2.32(a)(1) includes a mens rea element of willfulness.” Id. at *3.

“We ultimately conclude, however, that substantial evidence supports the magistrate judge’s finding that Bibbins acted willfully.” Id.

Of Note: This little misdemeanor case is actually a great example of a very thoughtful mens rea analysis, and is a useful textbook for mens rea challenges for other statutes. Judge Paez describes many interpretative rules that will transport well: for example, he explains that interpretations should favor consistent mens rea requirements across the various offenses within a criminal statute. In the present case, this particular “resisting” C.F.R. can also be satisfied by, “threatening,” “intimidating,” or “intentionally interfer[ing]” with an officer – all of which require “willfulness.” Id. at *4. Because these other offenses require “willfulness,” Judge Paez holds that “resisting” should require that mens rea as well. Id.

Similarly, Judge Paez rejects those old “general intent” and “specific intent” labels we learned in law school – explaining that the Court’s preferred practice is to identify the particular intent instruction that properly reflects the intent requirement of the charged offense.” Id. at *3 & n.5.

How to Use: Bibbins is a welcome decision for those who defend the colorful clients who often frequent federal parks and recreational areas (the Golden Gate National Recreational Area, for example, comes immediately to mind). Judge Paez continues the welcome trend of avoiding strict liability for Forest Service regulations, explaining the Ninth’s “predilection towards reading an intent element into regulations of the National Forest Service.” Id. at *4.

For Further Reading: Mustached Mr. Bibbins is an ex-Marine who likes fly-fishing, horse-back riding, has forty acres in Northern Utah, and who likes a “woman who is a good kisser.” See Profile here.


Image of Smokey the Bear from http://www.wired.com/images_blogs/photos/uncategorized/2008/01/09/dont_tase_me_smo.jpg


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


.

Case o' The Week: A Tucker-ed Out Defense, "Mere Presence" in the Ninth

"What happens in Vegas, stays in Vegas."

(Unless, of course, your thoroughly-disgruntled ex-girlfriend knows the phone number of your parole officer). United States v. Tucker, 2011 WL 1441865 (9th Cir. Apr. 15, 2011), decision available here.

Players: Decision by Judge Callahan, joined by Judge Gould and visiting District Judge England.

Facts: Tucker, a felon, leased a Las Vegas apartment with his girlfriend and child. Id. at *1. The girlfriend called his parole/probation officer and reported that the couple had broke up, she had moved out, and there was a shotgun in a closet in the apartment. Id.

This officer and others searched the unoccupied apartment and found a shotgun in the closet of a master bedroom. Id. Also in this room were men’s clothes and prescription bottles belonging to Tucker. Id. Tucker showed up and said he was living there with a roommate. Id. at *2. Tucker seemed to know about the gun, denied it was his, said his fingerprints might be on it but explained he had briefly handled it with some (unidentified) friends days before. Id.

At the jury trial, the district court refused to give the defense “mere presence” instruction, which explained that mere proximity, brief touching, or brief handling of a gun was insufficient to “possess” the gun. Id. at *5. Tucker was convicted and appealed.

Issue(s): “Tucker argues that his only link to the firearm was his presence in the apartment and his statements that he had briefly handled the firearm on an earlier date, and therefore the district court should have issued a ‘mere presence’ or ‘mere handling’ jury instruction.” Id. at *11.

Held: “We conclude that the district court did not err in refusing to give the mere presence instruction, particularly as the jury was properly instructed on the elements of the felon in possession statute . . . Pursuant to these instructions, the jury could not find Tucker guilty based on his mere presence or handling of the shotgun. . . . We conclude that the jury instructions adequately covered Tucker’s theory of the defense, ad therefore the district court did not commit reversible error.” Id. at *12.

Of Note: Judge Callahan concedes that there is a spectrum of fact-bound cases involving the mere-presence instruction, from Negrete-Gonzales to Howell. Id. at 11. Comparing the facts of Tucker to cases on this spectrum, she concludes that because Tucker was the only adult occupant, the gun was in the room Tucker was using, near his personal effects, that Tucker knew of the gun when confronted by the officers, and that he’d handled the gun in the past and thought his fingerprints might appear on it, the “evidence goes beyond ‘mere presence’ and makes a mere presence instruction unnecessary.” Id. at *11. It is a disappointing outcome, and again illustrates that the right to a “mere presence” instruction remains fuzzy law that is very fact-bound.

How to Use: Should you go to trial on a “mere presence” defense? These fact-bound opinions make that decision a tough call, made even tougher by the fact that most district courts defer on deciding whether to give the defense instruction until the evidence comes in at trial (when those good pretrial deals are distant memories, and the “acceptance of responsibility” points are long gone). The best one can do is collect the opinions and compare the facts to your case – and a good (or rather, informative) place to start is the Ninth’s notorious decision in United States v. Nevils, 598 F.3d 1158 (2010) (en banc), reversing what had been a great case on mere presence by Judge Paez.

For Further Reading: Is there a category for Ninth Circuit decisions that are, “most sympathetic to the defense, with ultimate win to the government?” If so, that distinction goes to last week’s decision in United States v. Apodaca, 2011 WL 1365794 (9th Cir. Apr. 12, 2011). CD Cal AFPD Josh Libby has the panel acknowledging that the guidelines for possession of child porn are nutty – and dissenting Judge W. Fletcher pens the best-written attack on those guidelines ever published in an opinion. Nonetheless, the panel still upholds lifetime supervision for a schlub with a two-year sentence for child porn possession!?!

Frustrating loss, but the case is a great resource for future deconstruction attacks on guidelines that have become completely unmoored from the criminal conduct at issue.



Image of the Las Vegas sign from http://lewis.armscontrolwonk.com/archive/3581/greetings-from-las-vegas


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


.

U.S. v. Tucker, No. 09-10319 (4-15-11) (Callahan with Gould and England, D.J., E.D. Ca.).

A distraught ex-girlfriend, a boyfriend who was a felon, and a call to the probation officer by the girlfriend saying there was a shotgun in the closet? It was a set-up, argued the defendant, pointing to the lack of fingerprints on the firearm and the bullets. She wanted to get even with me. Not so, countered the prosecution at trial, using statements by the defendant, inconsistencies with a state proceeding, and presence of belongings in the master bedroom. The jury convicted, and he received a 96-month sentence. On appeal, the 9th found sufficient evidence to support the conviction. The circumstances were such that a jury could find he had possession. The court did not err in not giving a mere presence instruction, as there was evidence of his living in the apartment. The 9th also held that there was not prosecutorial misconduct in the closing argument, as the prosecutor was responding to defense statements, and the language did not cause burden shifting. Finally, the court could find a prior was a crime of violence because the information to which the defendant had plead in state court had acts of attempted physical assault on a child.

U.S. vs. Apodaca, No. 09-50372 (4-12-11) (Cudahy [7th Cir.] with Wardlaw; concurrence by W. Fletcher). Lifetime supervision on one count of possession of child pornography was affirmed. However, it was affirmed grudgingly. The opinion rejects the substantive unreasonableness arguments put forth by defendant. The court did consider mitigation (indeed, the sentence of two years was a downward variance); and the court did consider distinctions between sex offenders. The 9th, and especially the concurrence by W. Fletcher, express uneasiness with the guidelines for possession of child porn and the supervised release terms. It is simply too long and shows little distinctions between types of offenders. The opinion and concurrence provide arguments why lifetime supervised release terms may be inappropriate. However, the imposition here was not an abuse of discretion.

Roberts vs. Hartley, No. 10-15760 (Wallace with Kozinski and Silverman). In light of Swarthout vs. Cooke, 131 S. Ct. 859 (2011), the 9th reverses the granting of a habeas relief for misapplication of California's "some evidence" standard for parole determinations. The Supremes in Swarthout made clear that the liberty interest created by state parole is determined by the state courts. A state liberty interest does not a federal liberty interest make. Federal review of due process is limited to procedural fairness. Here, the petitioner had procedural fairness. Federal courts cannot decide whether there was a misapplication of state parole laws in order to grant habeas relief.

U.S. v. Pelisamen, No. 10-10022 (4-13-11) (Tashima with W. Fletcher and Berzon). The defendant was the administrator of his grandmother's estate. It was sizable after a Northern Mariana Islands court ruled that property had been taken without compensation. It ballooned up to $4.4 million. The defendant, with his lawyer, took funds from the estate before it was disbursed. He was convicted of wire fraud and honest services fraud under 18 U.S.C. § 1346. After conviction, the Supremes held in Skilling, 130 S. Ct. 2896 (2010), that aside from kickbacks and bribery, the statute was unconstitutionally vague when it came to other conduct. Reviewing for plain error, the 9th found the conviction for honest services as constitutionally infirm because fraud is neither kickbacks nor bribery. However, the other conviction, for wire fraud, is still valid. First, the jury returned a special verdict where it checked that the conviction was both under honest services and under wire fraud. Second, the evidence was sufficient. Finally, the fairness and integrity of the verdict, under a plain error analysis, is not undermined. The 9th engages in an interesting discussion concerning the third prong of the plain error test in Olano, 507 U.S. 725 (1993). This prong asks if substantial rights were affected. The defendant argues that the burden of persuasion shifts from him to the government when, as here, the error was not plain at the time because of a subsequent decision. The Second Circuit has held in Viola, 35 F.3d 37 (2nd Cir. 1994), that such a shift takes place. Other circuits, notably the 10th and 11th, and also the DC circuit, have declined to follow Viola. The 9th has not weighed in, and sidesteps the issue here, finding that the defendant's rights were not affected under either standard. This issue is worth keeping an eye on. The 9th finds the numerous other issues unconvincing, and affirms the conviction.

Pearson vs. Muntz, No. 08-55728 (4-5-11) (Berzon with Reinhardt and M. Smith). Can a federal court examine a state's (actually California Governor Schwarzenegger's decision) to deny parole to an inmate because of some evidence that the crime was especially callous. The district court had granted the petition, but the 9th now reversed. The 9th wrote that it was compelled to reverse because federal examination of a parolee's due process rights, under the recent Supreme Court's decision in Swarthout vs. Cooke, 131 S. Ct. 859 (2011) (per curiam), is limited to whether the parolee had the chance to be heard, examine the evidence in advance, and receive notification. Due process review does not include looking at the particular quantum of evidence supporting the decision independent of any state law imposed requirement. Once procedures are provided, the due process inquiry ends.

U.S. vs. Delgado-Ramos, No. 09-50580 (4-7-11) (Per curiam with Rymer, Callahan, and Rymer; concurrence by Rymer). Padilla vs. Kentucky, 130 S. Ct. 1473 (2010) requires defense counsel to advise on immigration consequences. Shouldn't a court, taking a plea under Fed. R. Crim. P. 11, have to inform the defendant of the immigration consequences? Didn't Padilla overrule prior Ninth Circuit precedent? The 9th answers "no" and "no." The defendant entered a 1326 plea before Padilla. He now argues that he should have been informed by the court of the immigration consequences. Under a plain error review, the 9th finds that Padilla did not overturn U.S. vs. Amador-Leal, 276 F.3d 511 (9th Cir. 2002). Padilla focused on Sixth Amendment ineffectiveness of counsel. As such, Padilla is different from the due process fairness analysis of a guilty plea. Moreover, a court is focused on the plea to the charge; the court cannot control another agency's decision. The court must advise of the direct consequences, but not all collateral consequences. As such, a court is not required to advise of immigration consequences. Concurring, Rymer writes that defendant would be unable to prove prejudice under any analysis.

U.S. vs. Greer, No. 09-10095 (4-7-11) (Bybee with Schroeder; dissent by Panner, Sr. D.J., D. Ore.). The defendant was a Las Vegas truck driver who delivered bales of shredded paper to be recycled. One problem: some papers (about 50 lbs worth) had not been recycled. They contained information from casinos' customers -- really, really confidential stuff. The defendant later testified he thought he "was retiring from trucking that day" because he could get money for them. He then tried to get the casinos to pay him for the recovery. The government charged him with extortion (his efforts make amusing reading). He was convicted of extortion under the Hobbs Act and of racketeering. On appeal, he argued that the government improperly asked him on cross-examination if government witnesses were lying. The 9th, under plain error review, sidesteps, saying that the error was not so clear that the court should have recognized it without an objection. The tougher issue was with the jury instructions. The court gave a general instruction that the government does not have to prove the defendant knew his actions were unlawful. This was paired up with an element's instruction that stated that the defendant acted with the intent to obtain money he knew he was not entitled to receive. Again under plain error review, the 9th determined that there was not a risk of confusion. The general instruction was for the "ignorance of the law" while the element mens rea was for knowing what the acts were. Moreover, no circuit has held that specific intent was required and one circuit, the 6th, held that it was not. The 9th defers ruling on that issue; under plain error, there was not error. Dissenting, Panner argues that there was confusion, and error, because the knowing/not knowing clashed.

U.S. vs. Ewing, No. 10-50131 (4-7-11) (Ripple (7th Cir.) with Pregerson and Graber). The 9th upholds a search, finding that there was probable cause, under a totality of circumstances, to search a car and the contraband (counterfeit bills) within it. Here, the police pulled a car over for expired tags. Approaching the car, the officer asked if anyone was on probation and parole. One passenger said "yes" and when the officer "conversed" with him, the officer noticed folded bills stuffed in the weather-stripping of the window. Why, wonders the officer, was there money sticking out the window? No one said it was their money. The officer noted that the serial numbers on the 20's were the same. Later, one of the passengers said that defendant had been making counterfeit bills and described the circumstances. In searching the car, with consent of the owner, counterfeiting equipment and materials were found. The district court upheld the search. The 9th did likewise. First, the 9th did find that the government had waived the standing issue (the defendant was not the owner of the car). Second, the 9th held that the officer had probable cause to search the car under the circumstances: the passengers appeared nervous; the officer saw money in the weather-stripping, it was an odd place to store bills, and the officer believed that it was related to drug trafficking, and that one passenger appeared under the influence of a stimulant, and he was on parole. Since the officer had probable cause to search the car, he could search the contents, which included unfolding the money (revealing the identical serial numbers).

Case o' The Week: Critical for the Defense, "Collateral" for a Court? -- Delgado-Ramos, Immigration advisements, and Rule 11

Assume a defendant isn't warned of serious immigration consequences before he or she enters a plea of guilt. If it is the defense attorney who fails to advise his client, that failure is called "ineffective assistance of counsel." Padilla v. Kentucky, 130 S.Ct. 1473 (2010)

And if the district court fails to advise the same client, of the same immigration consequences, before the same guilty plea? Then these immigration ramifications are transformed into mere "collateral consequences" of a plea and there is no error, apparently. United States v. Delgado-Ramos,__ F.3d __, 2011 WL 1312778 (9th Cir. April 7, 2011), decision available here.

Players: Per curiam decision by Judges Rymer, Callahan, and Ikuta.

Facts: Delgado-Ramos entered an open guilty plea to illegal reentry before the Supreme Court’s decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Id. at *1. (Padilla is the important new decision holding that defense counsel was ineffective when he or she failed to advise the client of the immigration consequences of a conviction). While taking the plea, the district court did not advise Delgado-Ramos of the immigration consequences of the conviction. Id.

Issue(s): “Jose Delgado–Ramos appeals his conviction for attempted entry after deportation, see 8 U.S.C. § 1326(a)-(b), on the ground that the district court failed to inform him of the immigration consequences of his plea during the plea colloquy.” Id. at *1. “In United States v. Amador–Leal, 276 F.3d 511 (9th Cir.2002), we held that Rule 11 and due process do not require a district court to inform a defendant of the immigration consequences of his plea . . . Delgado argues, however, that the Supreme Court's recent decision in Padilla ‘casts doubt’ on the continued force of Amador–Leal and requests that we remand this case to the district court so that he ‘can plead anew.’” Id.

Held: “For a three-judge panel to hold that an intervening Supreme Court decision has ‘effectively overruled’ circuit precedent, the intervening decision must do more than simply ‘cast doubt’ on our precedent. Rather, it must ‘undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.’ Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). That high standard is not met here.” Id. at *1. “While Padilla's holding is directly applicable to our Sixth Amendment analysis in Fry, it sheds no light on the obligations a district court may have under Rule 11 and due process. Accordingly, we cannot say that Padilla ‘undercut[s] the theory or reasoning underlying’ our decision in Amador–Leal ‘in such a way that the cases are clearly irreconcilable.’” See Miller, 335 F.3d at 900. Because Amador–Leal remains the law of the circuit, the district court did not err in failing to advise Delgado of the immigration consequences of his plea.” Id. at *3.

Of Note: The panel in Delgado-Ramos goes to great lengths to distinguish Padilla, emphasizing that here the challenge is a Due Process / Rule 11 claim about the validity of a plea of guilt, and in Padilla it was a claim of ineffective assistance of counsel. Id. at *1.

With all respect, the distinction is unpersuasive.

In a nutshell, the panel relies on old case law that excused plea colloquies that did not advise of “collateral consequences.” Id. at *2. No fair reading of Padilla can leave one with the impression that immigration consequences remain “collateral,” anymore.

In the panel’s defense, a three-judge panel has to be chary about finding that intervening Supreme Court precedent has abrogated previous Ninth authority – but the opinion could have more openly conceded how pervasively Padilla has eroded the rationale underlying Ninth Circuit law. Delgado-Ramos in ripe for review, and the Ninth should take this opportunity to take the case en banc, ditch its old Rule 11 law, and get its authority in line with Padilla.

How to Use: It is hard to imagine how the holding of Delgado-Ramos could survive en banc or Supreme Court review. If you have this issue, bring it: this three-judge decision does not close the debate. Unfortunately, to really have the issue on appeal one would have to stay mum at the plea and let the district court forget to advise the client (otherwise, it is an easy error to fix by the district court judge). This failure to object leads to plain error review, and to survive the Olano analysis will be tricky business (particularly when defense counsel should always be giving Padilla advisements in any event, fatally undermining the necessary prejudice showing). Interesting, though, to think how a corrected Delgado-Ramos decision could be used in a habeas corpus challenge to a prior, or a writ of coram nobis.

For Further Reading: Those heartless Feds are going to deport your poor alien client, while relying on completely indecipherable immigration law - shouldn’t they at least give defense counsel a basic "crimigration" primer so you can give the client meaningful Padilla advisements before the plea?

They have – and it is a very useful resource. See Monograph here.


Image of Customs agent from http://www.ehow.com/info_8083203_laws-immigration.html


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

.

Samayoa vs. Ayers, No. 09-99001 (4-4-11) (Silverman with Kozinski; dissent by Reinhardt). An opinion, especially in habeas, that starts with the gruesome recounting of the facts usually does not bode well for the petitioner; it especially does not bode well when the issue is IAC at sentencing, with AEDPA deference. Here, the petitioner brutally murdered a mother and her two-year old daughter during a burglary. He also had a history of violent acts. At trial, and sentencing, the theme was brain damage, and mental illness, resulting in diminished capacity. A few family members testified and a few guards about his behavior in prison. In post-conviction, investigation uncovered a physically abusive, sexually abusive, violent, and deprived childhood. Trial counsel did no family investigation. The defense experts used moreover were arguably incompetent (inventing non-existent psychological conditions, making simple math errors in calculations, and even mislabeling an upside-down diagram of the brain). The state courts denied relief; the federal court accepted ineffectiveness, but found no prejudice given the brutality of the crime and further aggravators. The 9th affirms. The opinion goes through the evidence, and stresses that under AEDPA, deference is afforded to the state court's determination. Such a decision was not unreasonable. The crime's ugliness, to the 9th, seemed paramount. The best chance to save the petitioner was the brain damage, and the jury and state courts were not persuaded. Neither was the 9th. In dissent, Reinhardt railed against the incompetence of counsel and defense experts. Defense counsel had no excuse not to investigate the petitioner's upbringing, and family history. The performance of counsel, and the deficient experts, doomed him. To Reinhardt, actual evidence of years of abuse and a horrific childhood would be more persuasive than weak evidence of brain damage and equivocal testimony by family and guards.

U.S. vs. Fasthorse, No. 10-30093 (4-1-11) (M. Smith with Graeber and Fisher). The defendant appeals a conviction for sexual abuse under 18 U.S.C. 2242(2)(B). The defendant argues there is insufficient evidence and the sentence of 130 months is unreasonable. The 9th affirms both conviction and sentence. The victim in the case admits drinking and smoking medical marijuana during the night. When she woke up, she testified, the defendant was on top of her, having sex. The defendant argued consent. The evidence revolved around credibility, and the jury found the victim credible. "Waking up," reasoned the 9th, implies no consent. The sentence was within the guidelines, and the court supported the sentence with appropriate reasons. Cooper v. Neven, No. 08-16973 (4-1-11) (D. Nelson with Hug and McKeown). The 9th considers this habeas appeal. The 9th remands the Brady and Napue claims for consideration because the denial was not on independent state grounds, but on federal. The other claims were denied. Wilson v. Knowles, No. 07-17318 (4-1-11) (Noonan with Silverman; dissent by Kozinski). This is an amended opinion regarding an Apprendi claim. The state court found facts as to a prior state conviction related to injury. The 9th holds this violates Apprendi. Kozinski's dissent goes to the lack of a Supreme Court case precisely on point as to assessing facts in the prior state conviction. He would find that AEDPA requires deference, and so would deny the claim.

Case o' The Week: Betty Balks at Broad "Border" Bromide, 4th Amendment and Border Searches

Does it make sense to permit a broad "border" search, two days and two hundred miles away from the actual point-of-entry?

Judge Betty Fletcher (Left) doesn't think so either. United States v. Cotterman,__ F.3d __, 2011 WL 1137302 (9th Cir. March, 30, 2011) (Fletcher, Betty J., dissenting), decision available here.

Players: Decision by Judge Tallman, dissent by Judge B. Fletcher.

Facts: Cotterman, a registered child-sex offender, crossed from Mexico into Arizona and tripped an ICE alert. Id. at *1. A search of his car revealed cameras and computers; many of the files within were password protected. Id. at *2. Cotterman clammed up, and the agents took the computers 170 miles north to Tucson. Id. After two days of examination the agents discovered child porn in the unallocated space of a laptop. Id. at *3.

Cotterman, who had been released, decided that it was an opportune time for an Australian vacation - he fled, was arrested, and was extradited. Id. at *3. Meanwhile, agents cracked the passwords and found hundreds of images of child pornography, many of which portrayed Cotterman and a minor girl. Id. District Judge Collins suppressed the fruits of this search, finding the search could have taken place at the border and that it took at least forty-hours to yield results. Id. at *4. The government filed an interlocutory appeal. Id.

Issue(s): “The United States contends that it did not need to demonstrate reasonable suspicion because the border search doctrine justified both its initial search and its decision to transport Cotterman’s computer away from the border to adequately complete its search. As a result, the narrow issues before us are simply whether the border search doctrine applied and, if it did, whether the Government’s conduct was so egregious as to render the search unreasonable.” Id. at *4.

Held: “We find no basis under the law to distinguish the border search power merely because logic and practicality may require some property presented for entry – and not yet admitted or released from the sovereign’s control – to be transported to a secondary site for adequate inspection.” Id. at *1.

Of Note: In a persuasive dissent, Judge Betty Fletcher focuses on the long-term deprivation of property, and a forensic search that is a fishing exhibition. Id. at *12 (B. Fletcher, dissenting). She worries, “The majority gives the Government a free pass to copy, review, categorize, and even read all that information [on a hard drive] in the hope that it will find some evidence of any crime.” Id. at *13.

Our Fourth Amendment Champion is skeptical of the government’s abandonment of its argument that it had reasonable suspicion to seize the laptop -- a strategy that she suspects stemmed “in part from [the government’s] eagerness to secure our sweeping approval of suspicionless border seizure and search of electronics equipment.” Id. at 12 & n.1. Judge Fletcher ends by “add[ing] her voice to the chorus lamenting the apparent demise of the Fourth Amendment.” Id. at *14.

How to Use: Perhaps stung by Judge B. Fletcher’s rebuke, Judge Tallman laces Cotterman with exceptions and limitations on this (frankly dramatic) expansion of the border search exception. See e.g., id. at *7 & n.12 (limiting case to property, not individuals). As he concedes, “We by no means suggest that the Government has carte blanche at the border to do as it pleases absent any regard for the Fourth Amendment . . . Rather, we continue to analyze the Government’s conduct on a case-by-case basis to determine whether searches or seizures are effectuated in such a manner as to render them unreasonable.” Id. at *8 (footnote omitted). If Cotterman survives an en banc call, those concessions will give some room to distinguish the opinion in future “border” search cases (that take place two hundred miles from the border).

For Further Reading: Professor Orin Kerr thinks Judge Tallman got Cotterman right. See Volokh Conspiracy blog here. (Although, as one commentator questions Kerr, “Do ever not agree with increasing government power when it comes to the 4th amendment?” Id.)


Image of the Honorable Judge Betty Fletcher from http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x6360114


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


..