U.S. v. Crowder, No. 10-30125 (8-30-11)(Ikuta with Tashima and Bea).

The 9th holds that the government need not prove that a defendant knew that SORNA itself imposed a sex offender registration requirement. The government still must prove that the defendant knew of a registration requirement and knowingly failed to register, but not that he specifically knew of SORNA's "as required by" language. The 9th joins all the other circuits in this interpretation.

Case o' The Week: The Pursuit of Prejudice - Barajas-Alvarado and Due Process Challenges to Expedited Removals

What's not to like about Judge Ikuta's important new decision for illegal reentry prosecutions? In a question of first impression, she holds in Barajas-Alvarado that when used as a basis for a Section 1326 prosecutions "expedited removals" must be subject to due process attack to pass constitutional muster. Given this great new rule, nothing now stands between us and winning motions to dismiss illegal reentry indictments.

(Nothing, that is, save "prejudice.")

United States v. Barajas-Alvarado, 2011 WL 3689244 (9th Cir. Aug. 24, 2011), decision available here.

Players: Big win for Ass't Federal Defender James Chavez, Federal Defenders of San Diego.

Facts: Barajas-Alvarado, an alien, was removed from the U.S. to Mexico several times via “expedited removal.” Id. “Expedited removal proceedings provide a streamlined process by which U.S. officers an remove aliens who attempt to gain entry to the United States but are not admissible.” Id. at *1 & n.1.

After he was later caught trying to enter again, with fake immigration docs, Barajas-Alvarado was charged with attempted illegal reentry. Id. The defense challenged the government’s reliance on the expedited removal orders as a basis for the §1326 charge; the district court rejected that challenge. Id. at *2. Barajas-Alvarado entered a conditional plea.

Issue(s): “Barajas–Alvarado claims that: (1) the Immigration and Naturalization Act . . . precludes any meaningful judicial review of an expedited removal order, including review of a collateral challenge to such an order in a § 1326 action; (2) under Mendoza–Lopez, some meaningful review of the order is constitutionally required before the order can be used as a predicate to a criminal proceeding; and therefore (3) because the statute precludes review, expedited removal orders cannot be used as predicates in § 1326 prosecutions.” Id. at *2 (citation omitted).

Held: “To convict an alien criminal defendant of illegal reentry under 8 U.S.C. § 1326, the government must prove that the alien left the United States under order of exclusion, deportation, or removal, and then illegally reentered. In . . . Mendoza–Lopez, the Supreme Court held that a criminal defendant has a Fifth Amendment right to 'some meaningful review' of a prior administrative proceeding that resulted in the exclusion, deportation, or removal order used as a predicate to a § 1326 offense. . . . Here, we conclude that Barajas–Alvarado was entitled to judicial review of the predicate expedited removal orders underlying his § 1326 prosecution but failed to show any prejudice resulting from the alleged procedural flaws in the proceedings that resulted in those orders. We therefore affirm the district court’s denial of Barajas–Alvarado’s motion to dismiss his indictment . . . .” Id. at *1 (footnote omitted) (citation omitted).

Of Note: U.S. citizens have due process rights. Aliens lawfully admitted to the U.S. have due process rights. Do non-admitted aliens have due process rights, when charged with a criminal case here in the U.S.? Seems like a no-brainer: if we’re going to incarcerate someone, lawful alien or no, surely that defendant should be afforded the due process of law?

Remarkably, this seems to be an unresolved issue. The author of this opinion, Judge Ikuta, does a little riff on this question; she notes that the government doesn’t argue the point so the Court does “not address this question.” Id. at 4 & n.8. Thankfully, for over a decade the Ninth has consistently assumed that non-admitted aliens should be afforded full due process rights – an assumption that continues in this Barajas-Alvardo decision. Id.

How to Use: The new rule of Barajas-Alvarado is that expedited removals can be used as a basis for § 1326 prosecutions, but are now subject to due process attack. Id. at *8-*9. Indeed, in this case there was a glaring due process problem: the removal proceedings were not fully translated into Spanish! Id. at *8. There is, sadly, a hitch: prejudice. Like “traditional” challenges to removals in illegal reentry prosecutions, an alien subjected to expedited removal must show that he suffered prejudice from the due process violation. Id. at *9.

Here, Barajas-Alvarado stumbles because he could not show that he was entitled to withdraw his application for admission (“withdrawal relief”); he did not, therefore, suffer prejudice. Id. For § 1326 cases based on expedited removals, take a close look at Judge Ikuta’s grappling with the defendant’s prejudice showing in this case. Id. at *8-*11. On slightly different facts, an alien might have a shot of making a “plausible showing” that he was entitled to “withdrawal relief.”

For Further Reading: For a useful summary of expedited removals see David Isaacson, Can Some Returning Nonimmigrants Challenge An Expedited Removal Order in Court? How Recent Case Law May Provide a Window of Opportunity, available here.


Image of U.S. Flag and fence from http://www.acslaw.org/acsblog/node/15775


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


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U.S. v. Barajas-Alvarado, No. 10-50134 (8-24-11) (Ikuta with Rymer and Tallman).

The 9th holds that courts must conduct some "some meaningful review" of an expedited removal order being used as a predicate for a 1326 criminal prosecution. The defendant here was facing a 1326 charge, with the expedited removal order being used to show that he had been removed. He sought to challenge, alleging its unconstitutionality for lack of a court being able to assess its fairness. The 9th wrestles with the issue, especially because Congress barred judicial review. The 9th holds that there has to be some review, and adopting the Mendoza-Lopez standard, requires some meaningful review, although limits the review to determining whether the removal proceeding was "fundamentally unfair because it violated the alien's due process rights and resulted in prejudice." On the facts here, the defendant comes up short, since the immigration officers, the 9th finds, would not have exercised discretion to allow him to withdraw his admissibility application.

A "meaningful" congratulations to James Chavez of the Federal Defenders of San Diego for securing the principle of "some meaningful review."

U.S. v. Matus-Zayas, No. 09-10294 (8-24-11) (Rawlinson with B. Fletcher and Tallman).

If a court is going to let the government admit a witnesses' deposition at trial, the government must offer some evidence of the witnesses' unavailability. Here, in this alien smuggling case, the government introduced material witnesses' depositions but failed to show why they were unavailable. This was error. However, the defendant did not show that the witnesses were available; nor did the defendant object or raise a confrontation challenge. The error was without prejudice.

U.S. v. Parker, No. 10-50248 (8-22-11) (Per curiam with B. Fletcher, Wardlaw and Kavanaugh, D.J.).

Why did the defendant cross the road? To protest, of course. The military on Vandenburg Air Force Base issued a "barment" letter when the defendant refused to relocate his protests from Ocean Avenue, a public road that crosses the base, to an area outside the base's main gate. This did not stop the defendant, who continued his protests. These 18 USC 1382 misdemeanors followed. On appeal, the 9th reversed, holding that 18 USC 1382, prohibiting entry onto a base, requires that the government have absolute ownership or exclusive possession of the property. The road here, Ocean Avenue, is a public one, with the county and the military each having concurrent jurisdiction. The government argues that such exclusive ownership is not required, but the circuit precedent bars such a position. Since the defendant was always on the public road's easement, his protest activities cannot violate 1328.

Congratulations to AFPD Jim Locklin of the FPD Central District of Calif. (Los Angeles).

U.S. v. Clements, No. 09-10034 (8-22-11) (Per curiam with O'Scannlain, Rawlinson, and Bea; dissent by O'Scannlain).

The defendant was convicted of a SORNA violation for failing to register as a sex offender on February 15, 2008. The 9th reverses and remands for dismissal of the indictment because of U.S. v. Valverde, 628 F.3d 1159 (9th Cir. 2010). In Valverde, the 9th held that SORNA's registration requirements did not become effective until August 1, 2008, because the AG's interim regulations failed to comply with the APA. O'Scannlain acknowledges the precedent, but points out that the Supreme Court had taken cert in Reynolds v. U.S., 131 S. Ct 1043 (2011), to resolve this circuit split as to retroactivity. The government moved to stay this appeal until the decision, but its motion was denied. O'Scannlain therefore dissents from the denial, arguing that the Court will settle the issue.

Case o' The Week: The Past Isn't Prologue - Dougherty and Probable Cause for Child Porn Searches

You could predict exactly how Judge N.R. Smith would vote on an issue of first impression -- involving probable cause to search for child porn -- based solely upon the knowledge that his background is in civil law, and knowing that he was a prominent Republican appointed to the Ninth by President W. Bush.

You would, however, be wrong. Dougherty v. City of Covina, 2011 WL 3583404 (9th Cir. Aug. 16, 2011), decision available here.

Players: Well-written decision by Judge N.R. Smith (above right), joined by Judge B. Fletcher. Dissent by District Judge Brewster.

Facts: Teacher Doughery was accused of inappropriately touching several students. Id. at *1. This prompted a cop to seek a search warrant; in the application, the cop described his own experience working on sex crimes. Id. The cop then opined, “based upon my training and experience . . . I know subjects involved in this type of criminal behavior have in their possession child pornography.” Id.

The search warrant issued, Dougherty’s computer was searched, nothing was found, and Dougherty filed a § 1983 claim. Id. at *2. The district court dismissed his complaint, finding the warrant supported by probable cause. Id.

Issue(s): “[W]hether evidence of child molestation, alone, creates probably cause for a search warrant for child pornography.” Id. at *4.

Held: “Under the totality of the circumstances, a search warrant issued to search a suspect’s home computer and electronic equipment lacks probable cause when (1) no evidence of possession or attempt to possess child pornography was submitted to the issuing magistrate; (2) no evidence was submitted to the magistrate regarding computer or electronics used by the suspect; and (3) the only evidence linking the suspect’s attempted child molestation to possess of child pornography is the experience of the requesting police officer, with no further explanation.” Id. at *1.

“If probable cause did not exist in [the Ninth Circuit's decisions in] Weber, it cannot exist here. In Weber, the affidavit included at least some direct evidence of the defendant’s possible possession of child pornography, including a two-year-old delivery of a catalog containing child pornography, an order from a fake catalog with image names suggesting child pornography, and general information regarding collectors, pedophiles, and molesters . . . . Here, by contrast, the affidavit includes only a three-year-old allegation of attempted molestation by one student and current allegations of inappropriate touching of and looking at students.” Id. at *4.

Of Note: In a question of first impression, Judge N.R. Smith guides the Ninth onto the right side of a circuit split. Id. at *4-*5. The Second, Sixth, and now the Ninth Circuits all reject molestation – without more – as PC for a search for child porn on electronic devices. The Eighth stands alone in tolerating this weak PC showing.

Knock wood that the Supreme Court lets this split percolate a bit – we don’t want to sweat the Fifth Vote on this Fourth issue.

How to Use: Be careful; this isn’t a bright line rule. Judge Smith hedges a bit at the end of the case, observing that “while the 'totality of circumstances' could, in some instances, allow us to find probable cause to search for child pornography, Officer Bobkiewicz’s conclusory statement tying this ‘subject,’ alleged to have molested two children and looked inappropriately at others, to ‘having in [his] possession child pornography’ is insufficient to create probable cause here.” Id. at *5 (emphasis added).

Mark well this “in some instances” caveat - this will be our next battlefield in the child porn, Fourth Amendment war.

For Further Reading: We’ve a brace of Smiths in the Ninth: Judge N. Randy, and Judge Milan (below left). Both men were civil attorneys with little exposure to federal criminal law before their Ninth gigs (though Judge N.R. Smith had been a state judge with criminal experience).

Both Smiths had deep ties to the Republican party before taking the bench.

Both Smiths were nominated by President W. Bush. See, e.g., article here.

And, both Smiths have been consistently open-minded to defense arguments on appeal. For example, both Smiths recently parted ways from Judge Bybee’s majority and joined Judge Berzon’s (effective) “dissent” in the recent Aguila Montes de Oca en banc case.

(Indeed, it was Judge Milan Smith who, in an earlier burglary case, planted the seed of doubt for California burglary that later grew into Judge Berzon’s opinion). See also, Rodriguez; see generally M. Smith blog entries here.

Those Aguila votes, and Judge N.R. Smith’s admirable Dougherty decision discussed in this post, illustrate the truth of our oft-repeated adage: 'tis always foolish to judge a judge by his or her cover.



Image of the Honorable N.R. Smith from http://georgewbush-whitehouse.archives.gov/infocus/judicialnominees/n-smith.html
Image of the Honorable Judge Milan Smith from: http://www.pasadenanow.com/_ArticleManager/publish/printer_5008.shtml



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


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U.S. v. Waters, No. 10-50256 (8-19-11) (Fisher with Pregerson and Berzon).

This concerns the interplay between retroactivity of the Guidelines crack reduction and career offender. "Interplay" may not be the right word; career offender "bullying" is more like it. The defendant was sentenced for crack cocaine. The court found he was a career offender, but his Guidelines were higher (what does that say about the crack/cocaine disparity?). Once the Commission reduced the crack offense level, and permitted retroactivity, the defendant argued that he should get the benefit. The district court did not grant it because the career offender was higher, and the retroactivity notes do not affect other operations of the Guidelines. The 9th agreed, and dismissed the appeal for jurisdiction. The 9th stressed that the district court had found previously he was a career offender, and that the application of the drug guidelines was really an application of the career offender guidelines because the greater sentence.

A Defender’s Guide To Sentencing And Habeas Advocacy Regarding Bureau Of Prisons Issues

Based on years of litigation with the Bureau of Prisons, we have prepared a Guide posted here aimed at helping federal defenders provide the best representation for their clients both before and after sentencing. The tangle of sentencing statutes and BOP policies and practices can be daunting, but we need to be on top of the issues – including their history and litigation status – to advocate appropriately for the best presentence report, the best sentence, and – if all else fails – the best shot at successful habeas litigation.

The Guide reviews programs well known to all such as the Second Chance Act, the Residential Drug Abuse Program, and boot camp. We hope to provide another level of understanding of these areas for effective advocacy. For example: How do we use the BOP’s refusal to implement the Second Chance Act’s expansion of pre-release community corrections from six to twelve months at sentencing? What are the types of decisions at sentencing that might make a difference for RDAP eligibility? What is the current status of gun possession and prior conviction RDAP litigation? How can we use the BOP’s unilateral abolition of its once-great boot camp program to argue for a lower sentence based on the “kinds” of available sentences?

We also discuss the current litigation status and suggested practices for that most screwed up of federal sentencing areas, state and federal concurrent and consecutive sentences. For those facing the nightmare of the BOP’s unlawful “death rattle rule” for prisoners who have extraordinary and compelling reasons for second look resentencing, we have some ideas for legal challenges to the BOP’s rules. We have also updated information related to classification issues and habeas corpus procedures.

We hope the information in the Guide can provide a baseline for our federal advocacy related to BOP policies and practices. The Guide is easily searchable and can be linked as a Favorite right next to the BOP’s site. For those interested in the cost to taxpayers from the BOP’s failure to implement ameliorative statutes, the written testimony in 2009 to the House subcommittee on crime referenced in footnote 1 of the Guide is linked here.

The Guide can always be improved based on experience in the field. For defenders with ideas to add, please email us and let us know how we can make it better.

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

Miranda v. Anchando, No. 10-15167 (8-17-11) (Sammartino, D.J., with Schroeder and Bea)

Note: This is a FPD Arizona case.

The 9th considers a question of Indian law arising from Indian habeas. The petitioner was convicted of eight tribal offenses, all arising from a single transaction. The petitioner was drunk, and threatened several bystanders with a knife. She was convicted and received several consecutive sentences. Petitioner argued that the consecutive sentences, arising from a single transaction, violated the Indian Civil Rights Act (ICRA). She pointed to the legislative history, and the fact that the tribe only can sentence up to one year, and there is no right to appointed counsel. The district court, relying on Spears v. Red Lake Band of Chippewa Indians, 363 F. Supp. 2d 1176 (D. Minn. 2005), held that Congress did not intend to allow tribal courts to impose multiple consecutive sentences for criminal violations arising from a single transaction. The 9th reversed.

In reversing the district court, the 9th focused on the language of ICRA, which states that the tribe has the authority to impose a sentence of one year on "any one offense." 25 USC 1302(7). This is pre-2010, because the recently enacted Tribal Law and Order Act (TLOA) allows such consecutive sentences by clarifying that an offense is not defined transactionally. (TLOA also imposes a limit of 9 years, increases sentences, sets due process requirements, and requires counsel, all to be litigated later). The opinion goes through how "one offense" has been taken to mean one conviction, and not a transaction analysis. Since the language is clear, the court should not consider legislative history. The one offense meaning is also buttressed by a double jeopardy/ Blockburger analysis. Petitioner's arguments cannot get around the language "any one offense."

Tough loss for Dan Kaplan and Keith Hilzendenger of the Arizona FPD Office (Phoenix) and for those other FPD/defense jurisdictions with Indian jurisdiction. Its reach will be limited, though, by TLOA.

U.S. v. Vasquez, No. 10-50336 (8-15-11) (Rymer with Tallman and Ikuta).

This is an appeal from a felon in possession conviction. The appeal focuses on the search warrant; sufficiency of evidence; and touches on sentencing. The 9th ends up affirming the conviction and sentence. The defendant was not only a member of the Mongols Motorcycle club, but was also an officer, and possibly a president of a chapter. The government obtained a search warrant for evidence of a RICO violation. The club supposedly kept records, minutes, and details of its criminal activities. In the course of the search, weapons and ammunition were found in the defendant's garage. One weapon was in a pair of sweatpants and another in a black canvas bag. The defendant argues that the search warrant was defective as overbroad, searching for records and documents. The 9th found that the warrant was limited: it described the process for record keeping, and tied the defendant to the organization. He may not have been president, but he was an officer. Moreover, he did not attack the veracity of the CIs as to the organization. The warrant was also not solely directed at membership but was directed to criminal activity. Turning to sufficiency of the evidence, the 9th found that there was enough. The weapon was in a pair of pants in his garage, on shelving next to a t-shirt with his nickname on it. There was also Mongol paraphernalia close by. The evidence was sufficient. Finally, the sentence -- below guidelines because of over representation of criminal history -- was reasonable.

U.S. v. Marguet-Pillado, No. 10-50041 (8-12-11) (Gwin, D.J., with B. Fletcher; dissent by N. Smith).

"The law of the case doctrine" does not preclude the defendant, at a second trial, from getting a jury instruction arguing that the government failed to prove beyond a reasonable doubt that the defendant had not obtained derivative citizenship. Here, the defendant's stepfather was a US citizen. He regarded the defendant as his son, although born in Mexico from a prior relationship, and had so informed immigration. When defendant got into trouble, and was convicted, he argued derivative citizenship to the immigration judge to no avail. At the first trial, which was to the court, the court also rejected the argument. On appeal, the 9th reversed on other grounds related to inadmissible hearsay. It affirmed on the derivative citizenship issue. At a second trial, this time before a jury, the defendant asked for a jury instruction focused on the government proving that the defendant was not a derivative citizen. The trial court denied the instruction. On appeal, the 9th holds this was error, and vacated the conviction and remanded for a new trial. The law of the case doctrine operates in a different context in a criminal matter, because of constitutional concerns. Applying the doctrine, after a guilty verdict had been vacated, raised confrontation and burden shifting issues. Moreover, the defendant was correct in arguing that the government bore the burden to prove guilt on each element beyond a reasonable doubt to a jury. The jury was the trier of fact. Lastly, the evidence was different at the second trial. Dissenting, Smith argues that as a matter of law, the defendant could not be a derivative citizen. This was held by a previous panel. The matter was settled. The government only had to prove that the defendant was an alien; not that he was not a derivative citizen.

Congratulations to Greg Murphy, Janet Tung, Vincent Brunkow, and Devon Burstein of the Federal Defenders of San Diego. It has been an especially good run for Vince Brunkow, who has recently won three appeals (the tri-fecta of due process?)

Case o' The Week: Godot Arrives (and We'd Rather Have Kept Waiting) - Aguila Montes de Oca En Banc

Seventeen months after oral argument, the Ninth Circuit has finally delivered its en banc decision in Aguila-Montes de Oca. Judge Berzon gives us a candid summary of the long-awaited majority decision.

"In adopting its fact-based approach, the majority overrules our circuit’s controlling precedent; dismisses as 'dicta' and 'illustrative' the Supreme Court’s clear guidance on this very question, . . . misinterprets Taylor and Shepard; ignores the constraints of the Sixth Amendment, as developed in the Apprendi line of cases; misapprehends several essential characteristics of our nation’s institutions of criminal justice; and refuses to follow the limited modified categorical approach adopted by every circuit that has addressed the question since the Supreme Court made the proper approach lucidly clear in the last few years—in particular, since Johnson and Nijhawan."

United States v. Aguila Montes de Oca, 2011 WL 3506442 (9th Cir. Aug. 11, 2011) (en banc), *28 (Berzon, J., concurring in judgment). Decision available here.


Players: Hard-fought victory for the client of San Diego AFD’s Steve Hubachek and Vince Brunkow. Majority decision by Judge Bybee (below right), dissent by Judge Berzon (above left).

Facts: Aguila was convicted of burglary in California. Id. at *25. Unlike the “generic” federal definition of burglary, the California offense does not require “unlawful or unprivileged” entry into the dwelling. Id. at *26. He was later convicted of illegal reentry, and given a ten year sentence. Id. at *2. The district judge held that the burg conviction qualified as a “crime of violence” under the guidelines, and increased the sentence by 16 offense levels. Id.

The Ninth (ultimately) reversed, holding that its decision in Navarro-Lopez meant that California burgs were categorically barred as “crimes of violence,” because the state statute was missing an element of the generic offense. Id. at *3. The case went en banc, and was argued (beautifully, by Mr. Hubachek) in March of 2010.

Issue(s): “We granted rehearing in this case to reconsider the rule we adopted in Navarro-Lopez . . . , to govern application of the modified categorical approach . . . . In Navarro-Lopez, we stated that the modified categorical approach applies when the particular elements in the crime of conviction are broader than the generic crime. We then declared: ‘When the crime of conviction is missing an element of the generic crime altogether, we can never find that a jury was actually required to find all the elements of the generic crime.’” Id. at *1 (citations omitted).

Held: “[W]e conclude that Navarro-Lopez’s ‘missing element” rule is not required by the Supreme Court’s modified categorical approach established in Taylor.’” Id. at *2. “In sum, Navarro-Lopez’s ‘missing element’ rule is overruled, as are any subsequent cases to the extent that they relied on that rule and are inconsistent with the revised modified categorical approach discussed here. In any case requiring the application of Taylor’s categorical approach, in the event that we determine that the statute under which the defendant or alien was previously convicted is categorically broader than the generic offense, we may apply the modified categorical approach. Under the modified categorical approach, we determine, in light of the facts in the judicially noticeable documents, (1) what facts the conviction necessarily rested on (that is, what facts the trier of fact was actually required to find); and (2) whether these facts satisfy the elements of the generic offense.” Id. at *21.

Of Note: A one-vote majority killed the great Navarro-Lopez rule and line of cases. Judge Berzon’s "dissent" (one vote shy), is a masterpiece that – shall we say, “takes issue” – with Judge Bybee’s majority view. Id. at *27. With great detail, Judge Berzon shows why controlling Supreme Court authority (and the law of other circuits) precludes the majority’s novel rule. See id. at *29-*32 (discussing Supreme’s Nijhawan and Johnson cases). We predict another white quill for Hubachek: if the Ninth doesn’t correct this decision with super en banc review, watch for a cert. grant soon.

How to Use: The defense bar lost the war (for now), in Aguila Montes de Oca, but read the opinion closely – Aguila won his own battle. Id. at *21-*27. Applying the modified categorical analysis to Aguila’s burg, a different majority concludes that it does not qualify as a generic burglary. Id. at *26. (In fact, we predict that precious few Cal burgs will qualify under this modified categorical analysis).

This point bears much emphasis: Aguila Montes de Oca does not hold that a Cal burg, or statutory rape, or kidnaping, or escape, any other state offense now automatically qualifies as a federal generic crime. The en banc decision instead holds that the district court must now undertake a modified categorical analysis for a certain class of state convictions. This new analysis will use a novel standard created by Judge Bybee (“what facts the conviction necessarily rested on”) that cries out for defense challenge and mischief-making. Let’s oblige.

For Further Reading: As wisely crooned by Mr. Garcia, “lately it occurs to me what a long, strange trip it’s been.”

For a survey of the Ninth’s strange Taylor trip, hit this link for years of sentencing summaries on the categorical and modified categorical analysis. (Practice tip: This compilation is a useful flag for the many future Aguila Montes de Oca battles that we’ll be fighting).


Image of Godot poster from http://www.rangzen.net/2010/03/19/waiting-for-mangtso-iii/

Image of the Honorable Judge Marsha Berzon from http://www.c-spanvideo.org/marshaberzon

Image of the Honorable Judge Jay Bybee from http://abovethelaw.com/stephen-reinhardt/

Image for the Grateful Dead T-Shirt from http://www.allposters.com/-sp/Grateful-Dead-GD-Truckin-Posters_i3443450_.htm


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



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US v. Aguila-Montes de Oca, No. 05-50170 (8-11-11) (en banc) (per curiam).

One hundred twenty-three pages of analysis in a per curiam opinion with fractured majorities, reluctant concurrences, strained logic, misreading of precedents, one compelling dissent, another mystifying dissent, snipping amongst the judges, and a mess of the categorical and modified categorical approaches. So what happened?

1. If a prior conviction is missing a generic element, the 9th decides that it can now use a modified categorical approach. The 9th therefore overrules Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc). Writing for one majority, Bybee tortures Taylor and Shepard to allow a court to look to facts supposedly necessary for a jury to find to support a missing element for a prior generic conviction.

2. Yet, applying that analysis to California Penal Code 459 and first degree burglary, a different majority overrules precedent that held it is a crime of violence for 2L1.2 purposes if the indictment or jury verdict has the allegation of "unlawful entry." The California statute is broader than the generic definition because its definition of "unlawful" allows for a privileged or consensual entry into a structure with felonious intent. In this case, the defendant's prior cannot be used as a crime of violence in a 2L1.2.

3. Berzon, in a compelling dissent (and concurrence for the burglary overrule), joined by Kozinski, W. Fletcher, M. Smith and N. Smith, writes a treatise on how wrong the majority is to overrule Navarro-Lopez. It is wrong because of Supremes precedent, which seeks to limit judicial fact-finding, and only uses a modified categorical approach in divisible statute matters. It is wrong because it misreads the approaches of other circuits. It is wrong because pragmatically, it creates a mess. It is wrong because it misreads so much.

4. Rawlison, joined by Gould, Silverman and Callahan, join Bybee in overruling Navarro-Lopez, but would go further and find that California's first degree burglary is a crime of violence because unlawful is unlawful. The dissent ends by saying that of course burglaries are violent.

All in all, a very strange opinion that calls out for a super-en banc or Supremes review for allowing a modified categorical approach in a "missing element" conviction.

Congrats to Steve Hubachek and Vince Brunkow of the Federal Defenders of San Diego for winning the case for their client.

U.S. v. Della Porta, No. 10-50168 (8-8-11) (Silverman with Tallman and Clifton).

The 9th in U.S. v. Evanston, 2011 WL 2619277 (9th Cir. July 5, 2011), held that a judge impermissibly coerces a jury where, over defense objections, and after an Allen charge, and learning of the contested issues, it permits supplemental argument focused on those issues. What about when the jury is deadlocked, but no Allen charge had yet been given, and the issues are unclear? Why, then it is okay. In a strained opinion, the 9th makes distinctions while ignoring the dangers inherent in supplemental closing arguments. In this case, involving embezzlement from a union, the jury deadlocked. The jury had sent out questions that pretty much highlighted what their disagreements were. The court, which had not given an Allen instruction, then suggested, "Hey, would supplemental argument help?" The jury foreperson said he did not think so, but reconsidered when the jury went back. Over defense objection, because, after all, the matter was now in their hands, the court had the lawyers re-argue. A guilty verdict came soon thereafter. On appeal, the 9th distinguished Evanston over the Allen charge and the lack of identification of issues. In so deciding, the 9th ignored the fact that the jury questions signaled the issues at play; brushed aside the extraordinary actions of re-argument in footnote 3, rejecting the argument that Fed. R. Crim. P. 29 sets the order of closing argument, and downplays the alternative of other less intrusive alternatives, such as additional instructions, or re-reading the instructions, or even the Allen charge itself. The 9th seems not to value the fact that those jurisdictions that allow such arguments do so through an explicit rule making procedure, as explained in Evanston. Finally, the jury is no longer neutral when there is re-argument: sides have been taken and arguments made inside the jury room. Re-argument becomes a way of intruding into the jury deliberation. The 9th had the opportunity of following Evanston's clear rule; instead, it smudged the bright-line. As for the remaining contention that the court erred in failing to give a theory of defense instruction, the 9th found no such error.

U.S. v. Washington, No. 09-56569 (8-8-11) (Ikuta with O'Scannlain and Piersol, Sr. D.J.).

The 9th found that petitioner's Fed. R. Civ. Pro. 60(b)(4) motion was really a disguised 2255 motion and, as such, the district court lacked jurisdiction to consider it. Rule 60 motions go to the integrity of the federal habeas proceeding, such as fraud on the court or an error in a procedural ruling. Motions that re-urge claims already dealt with are considered disguised 2255 motions. Such is the case here.

U.S. v. Aguilar-Reyes, No. 10-10216 (8-8-11)(Lynn, D.J., with Silverman and Graber)

(Ed. note: this case is an Arizona FPD one).

Fed. R. Crim. P. 35(a) allows a court, within 14 days, to correct a sentence that resulted from arithmetical, technical, or clear error. Is this jurisdictional? The defendant here received a +16 adjustment in a 1326 sentencing on March 1st. On March 5th, he filed a motion to correct the sentence arguing that the adjustment should not have been applied. On March 29th, 28 days after sentencing, the court held a hearing and indicated that it would change the sentence. The government objected. On April 12th, at a subsequent hearing, the court questioned its jurisdiction, but re-sentenced anyway (to time served). On appeal, the government argued that the court lacked jurisdiction. Defendant argued that the 14 days rule was not jurisdictional, but that the 14-day time limit resembled claim processing rules that go to the orderly conduct of business. Defendant cited a series of recent Supreme Court decisions that have considered deadlines to be more akin to claim processing than jurisdictional bars. Unfortunately for defendant, there is circuit precedent for the jurisdictional bar as well Supreme Court precedent in a predecessor to Rule 35. U.S. v. Addonizio, 442 US 178 (1979). The rule is jurisdictional until it is over-ruled by the Supremes or another en banc. The 9th even said that if the court had jurisdiction, it would still have been error.

U.S. v. Stinson, No. 07-50408 (8-5-11) (Rymer with Callahan and Ikuta).

This appeal is from another Aryan Brotherhood RICO prosecution (a series of appeals have issued this week). This appeal also affirms the convictions, and has some interesting issues. Venue was proper in a violent crime in aid of racketeering charge, 18 U.S.C. 1959, because although the murders took place in Pelican Bay prison in the Northern District of California, the continuing enterprise, and orders, came from the Central District. Venue was proper. The 9th also found that there was no Batson problem when the government strikes a juror (a female) who asked twice to get off the jury; the other Batson challenge to a woman was also denied as that juror had a nephew who served time and was familiar with gangs. This was originally a death penalty case, and the jury was death-qualified, but then the government withdrew the death notice. The defendant did not have a right to a non-death qualified jury. A defendant here (Griffin) also argued that he should be able to introduce a habeas petition granting him relief from solitary confinement because his length in segregation undercut any AB ties. He had an expert testify to that. However, the judgment could not come in, as it was hearsay going to the truth of the matter. Turning to witnesses, the payment of a witness does not make it government misconduct. The witness had been a CI. The government possibly did err in eliciting vouching from some witnesses as to the veracity of other witnesses, but any error was harmless. The government also committed error, and error of prosecutorial misconduct magnitude, in posing hypotheticals to the defense expert about AB activities gleaned from debriefings. The facts from the debriefings were hearsay. The government, therefore, stepped over the line. Yet, the error was harmless given the limiting instruction, and the magnitude of evidence. The 9th also found error in the district court's read back of witness testimony without precautionary instructions. It was, again, harmless. Lastly, the 9th affirmed the jury instructions, and found no error in juror contact with a witness.

Case o' The Week: A "Sheet Explosive" for the Fourth Amendment - McCarty and Airport Searches

Combine airport searches and child pornography, and you've got a recipe for another erosion of Fourth Amendment protections against warrantless searches. See, e.g., blog on United States v. Arnold, available here.

The latest example of this trend reverses suppression of child porn evidence, (allegedly) found as part of an administrative TSA search -- and does so despite damning credibility findings by the district court against the TSA screener. United States v. McCarty, 2011 WL 3319428 (Aug. 3, 2011), decision available here.


Players: Decision by Judge Hawkins.

Facts: At Hawaiian airports Transportation Security Administration (“TSA”) machines alert on bags with dense items, which are then further screened. Id. at *1. Among other things, TSA screeners search for “sheet” explosives – thin bombs that can be hidden in a pack of photographs. Id. Screeners must flip through packs of photos to check for sheet explosives. Id. Mandatory protocol requires a screener to search until safety concerns are satisfied. Id. Nothing in the policy directs a search for contraband. Id.

In this case, Simon McCarty checked bags at the Hilo International Airport (for a domestic flight). Id. at *1. When McCarty’s bag triggered a machine alert, a screener thumbed through photos of nude children within. Concerned, she read material in the bag describing sex with minors and then alerted supervisors. Id. Continued investigation revealed child porn (some of which featured McCarty). Id. at *3.

McCarty was charged with federal child sex crimes. After an evidentiary hearing, [courageous] District Judge John Michael Seabright (above left) found the TSA screener not credible and suppressed all evidence. Id. at *6. Judge Seabright determined that the screener had improperly intended to search for porn - not explosives. Id. at *5-*6.

Issue(s): “The competing interests of personal privacy and the safety of the traveling public are at the heart of this interlocutory government appeal from the district court’s suppression of all evidence obtained as a result of an airport search of . . . McCarty’s checked luggage . . . . The government argues the evidence from McCarty’s bag - which included, among other things, almost five dozen photographs of nude and partially nude minors, children’s underwear and pajama advertisements, and handwritten notes describing the molestation of children – was discovered during the course of a properly limited administrative search, the search was therefore lawful, and McCarty’s subsequent warrantless arrest was supported by probable cause. McCarty contends, and the district court agreed, that . . . [TSA] agents turned a routine administrative search for explosives into an unauthorized investigatory search for contraband.” Id. at *1 (footnote omitted).

Held: “[A]s long as

(1) the search was undertaken pursuant to a legitimate administrative search scheme;

(2) the searcher’s actions are cabined to the scope of the permissible administrative search; and

(3) there was no impermissible programmatic secondary motive for the search,

the development of a second, subjective motive to verify the presence of contraband is irrelevant to the Fourth Amendment analysis . . . . The subjective intent of the individual officer in such a search thus becomes as relevant as objective conduct only at the point at which the search ceases legitimately to be for the valid administrative purpose, as that is the point after which the administrative exception can no longer justify continuation of the warrantless search.” Id. at *11.

“The order suppressing the evidence obtained as a result of the airport screening and the follow-on consent- and warrant-based searches . . . is vacated, and the case remanded . . . for further proceedings consistent with this Opinion.” Id. at *15.

Of Note: McCarty ain’t a defense win. It is not, however, a complete rout. The decision very much does not hold that any airport search is exempt from the protections of Fourth. Indeed, Judge Hawkins goes to considerable effort to explain when the "purpose" of a search policy is relevant for the Fourth Amendment inquiry, and refuses to give a blank check to the TSA to search for contraband and bombs during its bag screenings. Notably, the Court remands for further findings on which of the materials were properly within the scope of an administrative search. Id.

McCarty is a long and complex opinion that demands a full and detailed read – be wary of AUSAs overstating the decision's holding after just skimming headnotes.

How to Use: A district judge’s credibility findings after an evidentiary hearing are owed huge deference on appeal. It is remarkable, therefore, for the Ninth to find that the district court erred in its findings that the TSA screener wasn’t credible. Id. *13. To salvage this witness the Court parses stages of the agent’s testimony, concedes much of it was contradictory, but redeems her with a detailed defense of one corner of her story. Id. at *13-*14.

Export McCarty’s hyper-technical attack of a DJ’s credibility findings into the (much more common) setting of challenging a cop’s testimony on appeal – sauce for the goose is, after all, sauce for the gander.

For Further Reading: Judge Seabright, who bravely suppressed all evidence in this terrifically unsympathetic child porn case, is a W. Bush appointee and a former AUSA. See article here.

(Always foolish to judge a judge by his cover . . .).


Image of the Honorable John Michael Seabright from http://www.grainnet.com/articles/usda_cited_by_federal_judge_for_permitting_violations_in_hawaii-36404.html

Image of goose and gander sauce from http://www.customercrossroads.com/customercrossroads/2009/07/sauce-for-the-goose-department-one-size-does-not-fit-all-in-customer-experience.html


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


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U.S. v. Espinoza-Baza, No. 09-10398(8-4-11) (Wallace with Noonan and Silverman).

Alas, what U.S. v. Sandoval-Gonzalez, 642 F.3d 717 (9th Cir. 2011) gives defendants for derivative citizenship defenses, this case takes away under Fed. R. Evid. 403 discretion. Sandoval-Gonzalez holds "that a criminal defendant faces no burden whatsoever regarding the issue of derivative citizenship in a prosecution for an offense of which alienage is an element." Id. at 723. Here, the defendant asked to present evidence that his maternal grandfather was born in the United States, and so the defendant might have derivative citizenship. Surely, asks this panel rhetorically, this could not be an open gate to all evidence. There must be some evidentiary bar to confusing, unfair, misleading, and unfairly prejudicial evidence. Fed. R. Evid. 403 is such a bar, and so it was here. The 9th holds that the district court did not abuse its discretion in using 403 to keep out the testimonial evidence. The evidence was of little probative value as there were other requirements required for derivative citizenship, and there was also contradictory evidence from the aunts in that the mother returned to the US illegally. The evidence just was not good, or strong, enough. As for precedent, the 9th might be constrained by Sandoval-Gonzalez, it does not mean that this panel likes it. Indeed, the opinion favorably cites other sister circuits which require prima facie evidence of meeting all the requirements of derivative citizenship. What about jury instructions? There was some evidence that slipped in about derivative citizenship, and so the defendant argued that this was the "scintilla" of evidence that supported a jury instruction. No, said the 9th, because the evidence still lacked an evidentiary foundation. It was self-serving hearsay that came in as a prior inconsistent statement. The defendant also loss in trying to argue that the two 1326s he was charged with were related for sentencing, and that the 96 month sentence was unreasonable. A hard-fought loss by AFPD Doug Beevers of the ED Ca (Sacramento) office.

U.S. v. Bingham, No. 06-50668 (8-4-11) (Rymer with Callahan and Ikuta). Want to learn about the Aryan Brotherhood? This case is a good place to start. It involves a RICO prosecution against AB members, including this defendant. The RICO convictions arose from evidence of a string of murders and assaults ordered by the AB. The defendant raises numerous objections, ranging from sufficiency of the evidence, to the use of gang membership evidence, to loss of evidence, prosecutorial misconduct, and RICO elements. All were denied.

U.S. v. McCarty, No. 09-10504 (8-3-11) (Hawkins with McKeown and Rawlinson). The TSA is charged with searching for explosives or security threats. Dense materials, including stacks of photographs, pose an alert. Explosive sheets can be hidden amidst photographs. So, when a TSA officer starts rifling through photographs, and the photographs are of minor children, nude, when does the search for weapons end and an investigation into a crime begin? The district court in Hawaii concluded that the officer went beyond an administrative search when she was looking through the photographs, and then started reading newspaper clippings and ads. Moreover, the district court found her not credible as to her state of mind. The 9th does not see it quite that way. It reversed the suppression and remanded. The search was undertaken pursuant to a legitimate administrative scheme; the search was properly cabined; and there was no programmatic secondary motive (a secondary subjective motive is not relevant for Fourth Amendment analysis). Here, she was looking through the photographs to ensure that there were no sheet explosives hidden; her subjective intention -- that she wanted to know what the nude photos were about -- did not matter because she was following administrative orders. Still, some of the stuff viewed was beyond the scope. On remand, looking at the probable cause that existed at the time, in the mind of the officer, the court must consider all the photos lawfully viewed as part of the proper administrative search. The court must determine what materials if any were not properly viewed or read, and cannot consider them if they are fruit of the poisonous tree. The court must also consider whether suppression is appropriate.

U.S. v. Houston, No. 07-50478 (8-3-11) (Rymer with Callahan and Ikuta). In a RICO appeal from an Aryan Brotherhood "war" against another prison gang, the 9th looked at whether a Brady violation occurred because of late disclosure. The disclosure was written notes by the AUSA which did not contain mention of a defendant's involvement by a witness was deemed not material. The defense could cross examine on it, and did, and had other ammunition, too. Likewise, the 9th found no perjury by the witness. There may have been an inference of falsity, but not certainty. The 9th also held that there was no evidentiary basis to require a duress instruction. The defendants had time to alert others, or to seek help, and the planning went on for an extended period.

Close, et al. v. Thomas, No. 10-35850 (8-3-11) (Paez with Fisher and Gould). The 9th held that BOP acted within its agency discretion in setting forth the priorities for an inmate's eligibility for the Residential Drug Abuse Treatment Program. The BOP looks to how close the inmate is to release as one factor in eligibility. The BOP does not have to count the year off the inmate would receive in placing him on the eligibility. The 9th does stress the enormous demand for the program, and the need for BOP to try to meet the demand.

U.S. v. Stanley, No. 10-50206 (8-2-11) (Trott with Rymer; dissent by Beezer).

The 9th holds that an ex-girlfriend, whom has not lived with the ex-boyfriend for years and was dating someone else, can give consent to search a computer given to the ex-boyfriend by his parents, and which the ex-boyfriend only gave the ex-girlfriend limited access. Oh yes, the ex-girlfriend testified that she also never gave consent. Why the holding? Well, the 9th looks at the record by the district court, which credits the agent's testimony, and, it seems, discounts the testimony and evidence by the defense. The authority to consent rested heavily on the ex-girlfriend's possession of the computer for two years. The computer held child porn. The government had to go with consent because the warrant was lapsed. In dissent, Beezer argues that the facts and common sense undercut the majority's analysis. He examines the facts, would find clear error, and would find that the ex-girlfriend had limited authority over the computer, was not a joint owner, and could not consent.

Lee v. Lampert, No. 09-35276 (8-2-11) (en banc) (Thomas writing with a concurrence by Kozinski).

The 9th holds that a credible showing of "actual innocence" under Schlup equitably tolls the statute of limitations bar imposed by AEDPA. However, the petitioner here failed to present such credible evidence. Kozinski, concurring, notes that the decision as to whether actual innocence can excuse AEDPA should be put off for another day and another decision because under the facts here, the petitioner presented no credible evidence.