U.S. v. Krupa, No. 09-10396 (9-30-11) (Callahan with Wolle, Sr. D.J.; dissent by Berzon).

This is a computer search case redux. The 9th withdrew the original opinion, and reissued this. The 9th holds there was probable cause to support the issuance of a search warrant, albeit a close case. The defendant was watching the children of a serviceman, who was abroad. The military police were asked by an ex to check out the situation, and they were concerned with the conditions when they arrived at the home. In looking, an investigator saw what he believed was a suspicious photo. The 9th upheld the search because of the totality of circumstances, and the deference to the facts and qualifications known at the time. In dissent, Berzon argues that the seeing of a photo of a teen female was not sufficient probable cause.

U.S. v. The Business of the Custer Battlefield Museum and Store, No. 10-30222 (9-30-11) (Fisher with Gould and Paez).

The 9th holds that there is a qualified common law right of access to access materials filed in support of search warrants after the investigation has ended. There may be restrictions, but the government has to show a compelling reason.

U.S. v. Barraza-Lopez, No. 10-50280 (9-28-11) (Fisher with Pregerson and Berzon).

When is the Speedy Trial Act clock rewound with a dismissal without prejudice? This is a 1326 case where the charges against a defendant are dismissed without prejudice, only to be later refiled. The Act's time ran out if the first filing date is used; not if it was the latter. On appeal, the 9th holds that the Speedy Trial Act's 3161(b)'s 30-day clocks start ticking anew from the filing of the new charge. Recognizing the possibility in the statutory language for another interpretation (relate back), this interpretation comports with the interpretation of the other circuits, harmonizes the provisions of the Act, harmonizes the Sixth Amendment jurisprudence, conforms to the 70-day requirement for trial, and is supported by legislative history. If there are abuses by the government, or sloppiness, the court can curb with a dismissal with prejudice or through other means.

Stokley v. Ryan, No. 09-99004 (9-26-11) (McKeown with Paez and Bea).

The 9th affirms the denial of a capital habeas asking for an evidentiary hearing on IAC. The panel sidestepped Pinhoslter. Whether Pinholster limited review to the record before the state courts on post-conviction, or whether the new evidence that was developed and presented to the federal courts, did not matter. The high standard of Strickland would bar relief under either analysis.

U.S. v. Sykes, No. 10-50399 (9-26-11) (Alarcon with O'Scannlain and Silverman).

The defendant received a resentencing under the crack guidelines. However, retroactive relief only applied to the Guidelines and not to the mandatory minimum sentence of 10 years. His sentence of 120 months (down from 121 months) stood because he had been informed of the mandatory minimum when he plead, and the mandatory minimum, even without an Apprendi amount listed, still controlled.

U.S. v. Perelman, No. 10-10571 (9-26-11) (Graber with Hug and Silverman).

The defendant fraudulently obtained and wore a Purple Heart. He also managed to bilk the Veterans Administration out of $180,000 in disability payments. Charged with 18 USC 704(a), the unauthorized wearing of military medals, defendant raises a broad First Amendment challenge. The 9th reads into the statute the requirement that the medal is worn with an intent to deceive, and thus limits the statute's reach from applying to actors, widows, and protestors and so forth.

U.S. v. Chung, No. 10-50074 (9-26-11) (Graber with Goodwin and Kleinfeld).

The defendant stole economic secrets from Boeing and sold them to China. He was charged with violating the Economic Espionage Act, false statements, and failing to register as a foreign agent. The 9th found sufficient evidence to affirm the convictions. The 9th also found no Brady violation, as the exculpatory evidence disclosed late could still be used. The 9th rejected numerous evidentiary challenges. Finally, the 9th upheld the use of the sentencing guideline for "national defense information" as the most analogous. The information stolen need not be held by the government.

U.S. v. Fitch, 97-10607 (9-23-11) (Block, Sr. D.J., with N. Smith; dissent by Goodwin).

Can a court sentence for a murder proved by clear and convincing evidence when the convicted offenses were fraud and money laundering? Yes, holds the 9th. The defendant here fell in love with a Colombian woman, and followed her to England. There, they continued seeing one another. By the way, he marries another woman, who agrees to follow him to Nevada. Money is transferred, and a trailer park home purchased (we all have our dreams). She and defendant go on a trip, and she is never seen again. Her money starts disappearing, family and friends do not hear from her, and even the bank starts calling. The defendant then steals an identity and marries his Colombian girlfriend. Prosecuted and convicted for numerous fraud offenses, he faces guidelines of 41 to 51 months. The court sentences him to 262 months. The 9th is troubled by the increase of sentence for an offense for which the defendant was not charged, much less convicted. The court found facts beyond clear and convincing and tied it to the fraud by stating that the murder provided the means for the fraud. The sentence was not at the top of the statutory max if all the counts ran consecutively nor was the sentence as long as murder. The 9th recognized that a court could consider all sorts of information, and so affirmed. There were no procedural errors, nor was the sentence substantively unreasonable. The 9th did seem uneasy, but deferred to the court. Goodwin, dissenting, argued that facts were found by the judge that increased the sentence and so ran afoul of the Sixth Amendment. This sentence went beyond because the murder was not charged, nor proved, and the sentence was for a crime for which he was not charged.

U.S. v. Rivera, No. 10-50313 (9-23-11) (Korman, Sr. D.J., with Noonan and Wardlaw).

The 9th held that petty thefts can be aggravated felonies for 1326 purposes because they act as recidivist enhancements that raise the sentence of theft to more than a year. Petty theft in the California code is not a generic theft, but a modified categorical approach. Looking at the charging document, plea, and judgment, supports such a finding.

Orel wits v. Sisto, No. 09-16142 (9-22-11) (Graber with Bea; O'Scannlain concurring).

The district court ordered the state to conduct a new parole hearing. The warden appealed. Maybe the court erred in ordering the hearing; after all, the Supremes in Swarthout subsequently held that the analysis was whether some due process was followed, not the decision itself. However, the ordering of a new hearing is not a release of the petitioner. Hence, it is not a final order. There were other claims unresolved. The appeal, therefore, was dismissed for lack of jurisdiction. O'Scannlain argues that the lack of jurisdiction should be characterized as mootness in light of the fact that the hearing was held, and the petitioner received relief. O'Scannlain worries that a state could not appeal an erroneous order that stops short of ordering release.

U.S. v. Baker, No. 10-10223 (9-20-11) (Graber with Silverman and Lynn, D.J.).

The 9th affirms the sentence on a misdemeanor possession conviction (a lesser included), and the condition of suspicionless searches, but reverses the condition for DNA collection. The district court exceeded its statutory authority in ordering it. In a concurrence, Graber notes the distinction in treatment of defendants on parole and probation. Defendants on probation have slightly greater expectations of privacy than parolees. The Supremes recognize this but the 9th continues to treat the two sentences the same. A probationer may not be subject to a suspicionless search as would a parolee under Knights. Grabber calls for an en banc to recognize the distinction.

U.S. v. Dugan, No. 08-10579 (9-20-11) (Graber with O'Scannlain and Bea).

The 9th rejects a Second Amendment challenge under Heller to the offense prohibiting an unlawful user or addict of controlled substances from possessing a firearm under 922(g)(3).

Case o' The Week: Baker Effort Undercooked, Needs Trip to En Banc Oven -- Fourth Amendment and Probation Conditions

Judge Susan Graber (right) is often a tough draw for a criminal defendant on appeal. See blog collections involving Judge Graber here.

She is also no radical when it comes to the Fourth Amendment. See generally, United States v. Crapser, 472 F.3d 1141 (9th Cir. 2007) (Graber, J., affirming warrantless hotel search over Judge Reinhardt's vigorous dissent).

So, when Judge Graber worries that "suspicionless" search conditions for probationers have finally crossed the Fourth Amendment line, and warns that the Ninth should go en banc to review its authority in light of Supreme Court jurisprudence, her call to action should sound alarm bells. Baker, the subject of this "Case o' The Week" post, should go en banc. United States v. Baker, 2011 WL 4359923 (9th Cir. Sept. 20, 2011), decision available here.

Players: Hard-fought case by Bay Area private counsel Jay Nelson and Ethan Balogh. Decision and concurrence by Judge Graber.

Facts: Baker was a passenger in a car during a high-speed chase. Id. at *1. When ultimately stopped, cops found 10 grams of meth in the car. Id. Baker was nonetheless charged with over fifty grams of meth, a mand-min felony. Id. At trial, cops testified that they saw a “snowstorm” of meth thrown out of the car as it fled. Id.

In a great trial victory, Mssrs. Nelson and Balogh beat the felonies and Baker was convicted of misdemeanor possession. Id. Over defense objection, ND Cal DJ Breyer imposed a “suspicionless search” condition on Baker’s term of probation. Id. at *2.

Issue(s): “Defendant challenges the probation condition that permits a suspicionless search:

The defendant shall submit his person, property, place of residence, vehicle and personal effects to search at any time of the day or night, with or without a warrant, with or without probable cause, and with or without reasonable suspicion, by a probation officer or any federal, state, or local law enforcement officer. Failure to submit to a search may be grounds for revocation. The defendant shall warn any residents that the premises may be subject to search.

Id. at *3.

“The government argues that it has a strong interest in protecting the public and that, as a probationer, Defendant has a reduced expectation of privacy and an increased risk of recidivism. Accordingly, the government argues, a suspicionless search condition does not violate the Fourth Amendment. Defendant counters that, although he has a reduced expectation of privacy, it is not reduced so much that a warrantless search, on the basis of no suspicion whatsoever, is reasonable. Defendant points out that he was convicted of a relatively minor misdemeanor drug offense and that the government's interest in protecting the public is therefore less than, for instance, the government’s interest in supervising a convicted violent felon.” Id. at *4.

Held: “We are bound by precedent to agree with the government. In Samson, . . . the Supreme Court held that a suspicionless search of a parolee does not violate the Fourth Amendment. Since that case was decided, we have applied our rule that there is no constitutional difference between probation and parole for purposes of the fourth amendment. . . . Because a suspicionless search of a parolee does not violate the Fourth Amendment, . . . and because our precedent dictates that there is no constitutional difference between probation and parole for purposes of the fourth amendment, we must conclude that a suspicionless search of a probationer does not violate the Fourth Amendment.” Id. at *4 (quotations and internal citations omitted).

Of Note: In a persuasive concurrence, Judge Graber urges that this case should go en banc. As she correctly explains, a parolee is not identical to a probationer for the Fourth Amendment analysis.“The Supreme Court has not addressed the question left open in Knights and raised here: whether a suspicionless search condition imposed on a probationer violates the Fourth Amendment.” Id. at *8 (Graber, J., concurring).

As noted above, Judge Graber is not traditionally viewed as a defense ally and her en banc suggestion should carry particular weight. See id. at *9 (“[T]his court’s continued reliance on the proposition that there is no difference between parolees and probationers in this context directly contravenes the Supreme Court’s clear statements in Samson and, critically, forecloses our ability to resolve that significant question on its merits. We should convene en banc so that we can correct our mistaken continued application of the Motley rule.”)

How to Use: Preserve the objection conditions of probation that impose suspicionless searches: an en banc petition is certain – review, likely.

For Further Reading: For the first time in a long time, the Ninth has lost an active judge: the Honorable Pamela Ann Rymer (left) passed away last week. See article here.

Judge Rymer was appointed to the Ninth by President H.W. Bush in ‘89, after being bandied against Justice Kennedy for the Supremes. For a retrospective of Judge Rymer’s criminal law decisions, see collection here.

While the defense often disagreed with Judge Rymer's positions, she was an engaged jurist and an elegant legal writer. As we observed in our '08 summary of the Zavala/Carty en banc decision, "Judge Rymer’s concise, bullet-point distillations of the Supreme Court’s sentencing morass are clear and well-written; they will be the Ninth’s hornbook for post-Booker sentencing practice. . . . If a Ninth Circuit defense counsel reads only one thing on federal sentencing, it should be Carty." See blog here.


Image of the Honorable Susan Graber from http://www.id.uscourts.gov/distconf08/photos/slides/Judge%20Susan%20Graber%20.JPG Image of the Honorable Pamela Rymer from http://nh.tributes.com/show/Pamela-Rymer-92390242


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

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U.S. v. Baker, No. 10-10223 (9-20-11) (Graber with Silverman and Lynn, D.J.).

The 9th affirms the sentence on a misdemeanor possession conviction (a lesser included), and the condition of suspicionless searches, but reverses the condition for DNA collection. The district court exceeded its statutory authority in ordering it. In a concurrence, Graber notes the distinction in treatment of defendants on parole and probation. Defendants on probation have slightly greater expectations of privacy than parolees. The Supremes recognize this but the 9th continues to treat the two sentences the same. A probationer may not be subject to a suspicionless search as would a parolee under Knights. Grabber calls for an en banc to recognize the distinction.

U.S. v. Dugan, No. 08-10579 (9-20-11) (Graber with O'Scannlain and Bea).

The 9th rejects a Second Amendment challenge under Heller to the offense prohibiting an unlawful user or addict of controlled substances from possessing a firearm under 922(g)(3).

U.S. v. Ibarra-Pinot, No. 10-50341 (9-20-11) (Bolton, D.J., with Ikuta; concurrence by Kozinski).

The defendant argued that he should have gotten a duress defense instruction. He presented evidence of threats to him and his family that unless he drove drugs across the border, he or they would be hurt or killed. He also presented evidence that the threat would be carried out. However, the trial court found that he did not present evidence on the third element, that he did not have a reasonable opportunity to escape the harm. The 9th affirmed the court. In a comprehensive opinion on the duress defense, the 9th parses the evidence, and explains that the defendant was allowed to present evidence, but he failed to show that he could not reasonably have sought help from the police, or authorities. In a concurrence, Kozinski would have sidestepped the discussion whether the court could have precluded the defense before trial, which he finds a difficult issue.

Habibi: Civil “Aggravated Felony” Definition Clashes With Supreme Court Rules Interpreting The Same Statute

On September 14, 2011, the Ninth Circuit decided in Habibi how long it takes for a year to elapse, holding that “one year” in the “aggravated felony” statute takes less time than an astronomical year. Even though the decision was made in a civil context, defenders will need to be aware of the ways in which this decision, which potentially increases the punishment for our § 1326 clients, clashes with the Supreme Court’s rules for construing the “aggravated felony” statute in Leocal and Lopez. The Ninth Circuit appears to be recapitulating its analytical error – eventually reversed by the Supreme Court – of giving different treatment to prior convictions in civil and criminal settings. Governing Supreme Court authority should foreclose application of Habibi in the criminal context.

In Habibi, Judge Bybee determined that the alien’s 365-day misdemeanor sentence, in the civil deportation context, met the definition of “aggravated felony” under 8 U.S.C. § 1101(a)(43). The statute designates as an “aggravated felony” “a crime of violence....for which the term of imprisonment is at least one year.” The Habibi panel established that, as a matter of scientific fact, a year elapses in about 365.2524 days. Relying on pre-Leocal Ninth Circuit authority – and never mentioning Leocal at all – the court deferred to the immigration agency’s informal reading of the statute. Science just seemed too inconvenient: “Because taking the intricacies of astronomy into account would needlessly complicate this area of law, we adopt the [Board of Immigration Appeals]’s definition.”

Not so fast: doesn’t this analysis run directly contrary to the Supreme Court’s construction of “aggravated felony” in Leocal and Lopez? In Leocal, Chief Justice Rehnquist analyzed § 1101(a)(43) in deciding whether drunk driving constituted an “aggravated felony.” In holding that the statute did not extend to drunk driving, the Court appears to have provided three reasons that Habibi’s reasoning is fundamentally flawed and that earlier precedent based on immigration agency convenience has been superseded by intervening Supreme Court authority.

First and most basically, the Supreme Court in Leocal’s footnote 8 articulated the principle that, because “aggravated felony” has criminal consequences also, any ambiguity must be resolved based on the rule of lenity: “Because we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.” Given the reality-based length of a year, any ambiguity the Habibi court faced should have been resolved with a finding the 365 days is less than a year. A year may be only .2524 days more, but 365 days is not a year.

Second, the Leocal opinion emphasized that construction of the statute should be informed by the term ultimately being defined, in that case “crime of violence.” Just as the natural meaning of that term would not encompass drunk driving, the term “aggravated felony” does not naturally include Mr. Habibi’s misdemeanor conviction. Although the Habibi court noted that the federal standard could trump the state description of the offense, at the very least, the term being defined militates against treatment of a 365-day misdemeanor sentence as an “aggravated felony.”

Third, the Leocal opinion is notable for providing no deference to the immigration agency’s position. Quite properly, the Court treated the matter strictly as judicial interpretation of the statutory term. Given the potential criminal consequences, basic separation of powers values militate against deference to the Executive in a manner that expands the punishment for criminal conduct. Instead of narrowly construing a penal statute, the Habibi panel decided the case as if administrative convenience is the deciding factor. And what’s so inconvenient about defining a year as 365.2524 days?

For those who remember the Ninth Circuit’s internal split over treatment of simple drug possession as an “aggravated felony,” Habibi is like deja vu all over again. In Ibarra-Galindo, back in 2000, the court through Judge O’Scannlain held that, in a criminal case, simple possession constituted “illicit trafficking,” which included “drug trafficking offenses” if the state treated possession as a felony. Judge Canby dissented, facing down the majority and six other circuits, in reliance on a common sense reading of the statute and, in the alternative, the rule of lenity. Six years later, in Cazarez-Gutierrez, Judge Betty Fletcher wrote for the court that, in the civil deportation context, simple possession was not an aggravated felony. As a result, the same statutory words meant different things depending on their use in criminal or civil context, and, oddly enough, the harsher interpretation applied to criminal punishment.

Finally in late 2006, the Supreme Court in Lopez resolved the nationwide conflicts by holding that simple drug possession was not included as an “aggravated felony,” largely for reasons foreshadowed in Judge Canby’s Ibarra-Galindo dissent. Justice Souter, writing for all but Justice Thomas, started the opinion by describing the “aggravated felony” provision as involving both criminal and civil consequences. In contrast, the court in Habibi refers only to the consequence of removal – there is no reference to the effect on criminal sentencing. The Habibi court’s failure to recognize that there can be only one statutory definition, and that definition applies in both civil and criminal contexts, appears to be inconsistent with the Lopez methodology. The omission is also inconsistent with Figueroa-Ocampo, in which the Ninth Circuit recognized that Lopez necessarily overruled Ibarra-Galindo’s different interpretation in the criminal context: “Given the Supreme Court's discussion of the shared definition of ‘aggravated felony’ under the [Immigration and Nationality Act] and the Sentencing Guidelines, the Court's reference to Ibarra-Galindo and Cazarez-Gutierrez, and the Court's interpretation of the INA term ‘aggravated felony’ adopted by the Guidelines, it is beyond dispute that Lopez applies in both criminal sentencing and immigration matters.”

Justice Souter also followed the Leocal lead in focusing on the “commonsense conception of ‘illicit trafficking,’ the term ultimately being defined.” In Lopez, the Court cited to Leocal in objecting to turning “simple possession into trafficking, just what the English language tells us not to expect.” Again in Lopez, as in Leocal, the Court indicated no reliance on the agency interpretation of the statute. In Habibi, the natural reading of “aggravated felony,” unmediated through the Executive agency, militates against treating a 365-day misdemeanor sentence as a qualifying conviction.

While the Lopez and Leocal litigation involved large numbers of clients who suffered years of over-incarceration, the number of defendants potentially affected by Habibi is undoubtedly much smaller. But for clients facing sharp increases in sentencing exposure based on 365-day sentences, we should be prepared to litigate the position that a year means a real year in the criminal context, asserting that Habibi’s failure to address Leocal and Lopez invalidates its precedential effect under the criminal statute and guidelines. And we should be vigilant in looking critically at all civil immigration cases that, while failing to apply the narrowing rules of construction for penal statutes, construe immigration statutes broadly, thereby increasing the potential level of criminal punishment.

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

Case o' The Week: Tinker, Taylor, Soldier, Spy -- Tafoya-Montelongo and Sex Crimes as "Crimes of Violence"

If a prior sex state conviction does not qualify as a guideline "crime of violence," an illegal reentry defendant could be looking at less than two years of custody. If the prior does qualify, however, the guideline range trebles and the alien could be looking at over six years.

That's exactly what happened in Tafoya-Montelongo, a new Ninth Circuit decision that undertakes a modified categorical analysis and holds that a Utah attempted sex offense qualifies as a "crime of violence." United States v. Tafoya-Montelongo, 2011 WL 4060586 (9th Cir. Sept. 14, 2011), decision available here.

A disappointing decision for our skyrocketing number of federal illegal reentry defendants (see chart of Section 1326 prosecutions as a function of administration, above).

Players: Decision by Sr. DJ Mills, joined by Judges W. Fletcher and N. Smith.

Facts: Tafoya-Montelongo pleaded guilty to illegal reentry after a preliminary PSR put his range at 15-21 months. Id. at *2. The final PSR came back at 63-78 months, after Probation came up with a 16- level specific offense adjustment for a prior Utah conviction for attempted sexual abuse of a child. Id. Tafoya-Montelongo was sentenced (after a variance) to 52 months. Id. at *2.

Issue(s): “Tafoya-Montelongo . . . only challenges the 16-level enhancement, arguing that his conviction for attempted sexual abuse of a minor is not a ‘crime of violence.’” Id. at *2.

Held: “Tafoya–Montelongo’s assertion that his conduct was ‘not abuse under the federal generic definition,’ but merely ‘self-gratification,’ is without merit because of the age of the victim. Because he attempted to engage in sexual conduct with a girl under the age of 14, his conduct was per se abusive under one of the generic federal definitions of ‘sexual abuse of a minor.’ Having determined that the conviction satisfies one of the definitions, we need not address whether it also meets the other . . . After considering the state court records, we conclude that Tafoya–Montelongo’s conviction for attempted sexual abuse of a child qualified as a ‘crime of violence’ under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district court committed no error, plain or otherwise, in applying a 16–level enhancement. . . in calculating [the] guideline range.” Id. at *5 (footnote omitted) (citations omitted).

Of Note: The narrow issue before the en banc court in the recent Aguila Montes de Oca (“AMdO”) case was whether California burglaries qualify as “crimes of violence” under the illegal reentry guideline. See AMdO blog entry here. The big-ticket issue, however, was whether the district court are permitted to rummage about and find facts to patch state convictions that were missing elements of generic federal crimes. The (formerly great) Navarro-Lopez rule prohibited that approach.

When the recent Aguila en banc decision eliminated Navarro-Lopez, federal defense folks quickly began worrying about sex priors. Many state sex statutes are missing elements of the generic federal definition; under the old Navarro-Lopez rule those state crimes didn’t count as “crimes of violence.” See generally Castro blog entry here.

(Interestingly, Judge W. Fletcher’s was on both the Tafoya-Montelongo panel and the AMdO en banc court. Prophetically, his only question at the Aguila en banc argument was how eliminating Navarro-Lopez would affect sex crimes).

Tafoya-Montelongo is an aftershock of the Aguila Montes de Oca quake, is laced with Aguila cites, and recites the modified categorical approach described in Aguila to find that this Utah sex-with-a-minor offense qualifies as a crime of violence. While it isn’t clear from this terse opinion whether this Utah sex statute was missing an element of the generic federal offense, or that the case would have been decided differently if Navarro-Lopez still existed, Tafoya-Montelongo and AMdO generally bode ill for our efforts to fight state sex convictions as federal generic crimes of violence.

How to Use: Tafoya-Montelongo teaches the importance of specific PSR objections to dodge plain error review. In the district court Tafoya-Montelongo objected to the PSR’s sixteen level specific adjustment for the sex prior. Id. at *3. The objection, however, wasn’t to whether the prior actually qualified, but to the shifting calculations between the preliminary and final PSRs. Id. This wasn’t specific enough: “Because Tafoya-Montelongo did not argue below that his conviction for the attempted sexual abuse of a minor did not qualify as a crime of violence, we review the issue for plain error.” Id.

For Further Reading: Last year we reported on a dias infaustus - the regrettable Ressam decision reversing a twenty-two year sentence because it was "unreasonable" (i.e., "too short!") See Ressam blog entry here.

Next week the case gets another look en banc – with a panel of CJ Kozinski, and Judges Schroeder, Reinhardt, Graber, McKeown, Wardlaw, Paez, Berzon, Clifton, Bybee, and Murguia. See Ninth Circuit en banc report here.


Graph of illegal reentry prosecutions as a function of Presidential administration from http://trac.syr.edu/immigration/reports/251/



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

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U.S. v. Ruiz-Apolonio, No. 10-50306 (9-14-11) (Wardlaw with B. Fletcher and Kavanaugh, Cir.).

In a 1326 appeal, the 9th holds that forcible rape under California Penal Code 261(a)(2) is categorically a "crime of violence" under the Guidelines.

U.S. v. Ayala-Nicanor, No. 10-50069 (9-14-11) (Wardlaw with Goodwin and Cogan, D.J.).

In a 1326 appeal, the 9th holds that willful infliction of corporal injury of a spouse under California Penal Code 273 is a categorical "crime of violence" under the Guidelines.

U.S. v. Tafoya-Montelongo, No. 10-10177 (9-14-11) (Mill, D.J., with W. Fletcher and N. Smith).

In a 1326 appeal, the 9th considered whether the defendant's conviction for attempted sexual abuse of a child under Utah Code 76-5-404.1 is a" crime of violence" under the Guidelines. The 9th finds that the Utah Code is overbroad, but using a modified categorical approach, and examining the plea agreement, finds that the acts constitute a crime of violence. The +16 adjustment is affirmed.

Trigueros v. Adams, No. 08-56484 (9-14-11) (M. Smith with D. Nelson and Bybee).

The 9th reverses a denial of a habeas petition for untimeliness. The 9th finds that the California Supreme Court's consideration of the petitioner's pro se writ, request for informal briefing by the state, and the subsequent denial of the petitioner's writ, can be considered a finding of timeliness by the state.

Reina-Rodriguez v. U.S., No. 08-16676 (9-13-11) (Thomas with B. Fletcher and Gertner, D.J.).

The 9th remands for re-sentencing through the lens of U.S. v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc). In Grisel, courts must use a modified categorical approach to determine whether a "dwelling" in a Utah burglary statute meets the Guidelines' definition of a dwelling. Here, Grisel applies retroactively, and the court must use the information and judgment to see whether the defendant's Utah burglary conviction qualifies as a burglary of a dwelling. The court cannot conduct its own sua sponte investigation into public documents.

U.S. v. Alvarez-Moreno, No. 10-10045 (9-13-11) (Berzon with Paez and Bea).

In this interesting, albeit rare, double jeopardy issue, the 9th considers whether a court after a bench trial can order a new trial absent a defendant's motion under Fed. R. Crim. P. 33 where the defendant had not properly waived his right to a jury trial in the first place. The defendant and the government set this case for a bench trial (alien smuggling) and the trial proceeded before it was recognized, after verdict, that the defendant had not formally waived his right to a jury trial. Defense counsel moved to vacate but did not ask for a new trial. The district court recognized the error and cut to the chase with a new trial order. Alas, cutting to the chase meant clearing procedural and constitutional hurdles which trips up the order. Double jeopardy attached with the verdict. It is up to the defendant to move for a new trial, or he can appeal (in which case the case will likely be remanded for a new trial). Alternatively, the defendant can decide to just accept the verdict. It is up to the defendant. The case is remanded.

Rossum v. Patrick, No. 09-55666 (9-13-11) (Per curiam opinion with D. Nelson and Reinhardt; dissent by Gertner, D.J.).

The 9th finds that the Supremes' decision in Pinholster, 131 S. Ct 1388 (2011) controls. Gertner dissents, arguing that Strickland's IAC test, and the evidence before the state court, supported the prior opinion's remand for an evidentiary hearing.

Case o' The Week: The Great Santini - Evidentiary Limitations on Gov't Experts

There's many reasons to hate government experts in criminal trials. Close to the top of the list is the old trick of smuggling radically-inadmissible evidence into trial, disguised as a "basis" for the government expert's opinion. Federal defense attorneys hate this gambit.

Turns out the Great Santini is no fan, either. United States v. Santini, 2011 WL 3930078 (9th Cir. Sept. 8, 2011), decision available here.

Players: Big win by San Diego Ass’t Fed. Defender Zandra Lopez. Per curiam decision by Judges B. Fletcher, N. Smith, and District Judge James Gwin.

Facts: Santini was caught crossing the Mexican border with 28 kilos of marijuana hidden in his car. Id. at *1. At trial Santini argued that he’d been tricked: someone else had hidden the drug in his car without his knowledge. Id. The defense argued that Santini was easy to manipulate because he had suffered a traumatic brain injury in ‘05 – a defense shrink explained that this type of injury can cause difficulty with “social perception of other people.” Id. at *1.

The government’s shrink, Dr. Mark Kalish, disagreed, asserting that Santini’s rap sheet showed “extensive prior contacts with law enforcement” before 2005. Id. Dr. Kalish opined that if the current charges were related to the ‘05 brain injury, one wouldn’t expect to see this “similar behavior” before the accident. Id. “The defense objected to the admission of Dr. Kalish’s testimony regarding the rap sheet” and challenged “that testimony on appeal.” Id.

Issue(s): “The government argues that Santini’s criminal history was either admissible as evidence of his ‘state of mind’ under [FRE] 404(b) or could be introduced as the basis for Dr. Kalish’s opinion under [FRE] 703.” Id.

Held: 1. FRE 404(b): “We conclude that the testimony of a psychiatrist relating disputed information contained in a rap sheet, which was neither admitted into the record nor examined by the district court, was not evidence that could support a finding by the jury that Santini had ‘extensive’ law enforcement contacts. Dr. Kalish’s testimony on this matter was, thus, not admissible under Rule 404(b).” Id. at *2.

2. FRE 702 and 703: “[The government’s] argument fails for two reasons. First, expert testimony must satisfy the requirements of Rule 702, which provides that an expert’s opinion must be ‘based upon sufficient facts or data.’ Fed.R.Evid. 702. For the reasons outlines above, the rap sheet was not sufficient to form the basis of Dr. Kalish’s opinion that Santini had engaged in ‘similar’ criminal behavior prior to his brain injury . . . . Second, the statement that Santini had ‘extensive’ prior law enforcement contact was far more prejudicial than it was probative in assisting the jury to evaluate Dr. Kalish’s opinion . . . . It was an abuse of discretion for the district court to allow this testimony.” Id. at *3.

Of Note: This brief opinion is rich and dense, and deserves a close read whenever an expert appears on the government’s witness list. Of particular note is its FRE 404(b) analysis. Id. at *1-*2.

Too often, government experts are backdoor conduits to the wholesale admission of otherwise inadmissible testimony. “I relied on the information for my expert opinion,” has become the miracle sanitizer that redeems cruddy evidence and means evidentiary anarchy when a government expert takes the stand. In the great Santini, the panel rejects this trend of blind deference and scrutinizes the bases for Dr. Kalish’s expert opinion with the same vigorous FRE 404(b) analysis leveled against other, mere mortal witnesses.

“Abuse of discretion” reversals in government-expert cases are rare birds indeed: Santini should feature prominently our in limine filings and trial objections to government experts.

How to Use: Santini teaches that a government expert can’t be used to smuggle in inadmissible FRE 404(b) evidence. Another valuable lesson bears on FRE 702 and 703. Santini takes seriously the requirement that “otherwise inadmissible evidence” relied upon by a government expert must have a “probative value in assisting the jury to assess the expert’s opinion” that “substantially outweighs” the “prejudicial effect.” Id. at *2 (quoting FRE 703) (emphasis added).

This is a different, and more rigorous test than the vanilla FRE 401 and 403 requirements: remember to level this additional challenge when confronted by a government expert.

For Further Reading: There’s a big brouhaha brewing between Crawford and gang “experts.” For an interesting, practical, and recent article on this hot new issue, see Hon. Jack Nevin (left), Conviction, Confrontation, and Crawford: Gang Expert Testimony as Testimonial Hearsay, 34 SEATTLE U. L. REV. 857 (2011), available here.

Image of "The Great Santini" picture from http://www.impawards.com/1979/posters/great_santini.jpg

Image of the Honorable District Judge Jack Nevin from http://advocacytraining.blogspot.com/2011/04/confrontation-clause-and-gang-expert.html


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

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U.S. v. Santini, No. 10-50391 (9-8-11) (Per curiam with B. Fletcher, N. Smith, and Gwin, D.J.) The 9th reverses importation and possession with intent convictions and remands for a new trial. The defendant at trial argued that a traumatic brain injury made him easy to manipulate and he was unaware of the marijuana placed in his car. The government mental health expert opined that the defendant knew what he was doing, and that his prior "extensive contacts" with the police showed a similar behavior and behavior that predated the injury. On appeal, the 9th found that this was FRE 404(b) and 702 error. The prior contacts were not similar (simple possession, indecent exposure) and the reliability is questionable. Moreover, the expert strayed from his expertise in opining on a rap sheet, which he admitted was confusing. This testimony was also more prejudicial than probative. The error was prejudicial.

Congratulations to Zandra Lopez of the Federal Defenders of San Diego.

U.S. v. Rodgers, No. 10-30254 (9-7-11) (McKeown with Schroeder; dissent by Callahan).

In this automobile search case, a warrantless search was invalid because it was premised simply on probable cause to arrest a passenger or because the passenger could not provide identification. The defendant here was stopped in a high crime area driving a car with a different paint color than was stated on the car's registration. The driver (soon to be defendant) explained he painted the car, but did not yet have the money to change the registration. This was not an offense. His driver's license was in order. His passenger, though, appeared very young -- 11 to 12 -- and not the 19 she said. She also gave a name that resulted in an outstanding warrant. However, there was nothing she said or did that indicated there was contraband in the car, or she was hiding something, or that there was a danger. The police searched anyway, and found drugs and guns. The 9th considered it a close question whether the car could even be stopped for reasonable suspicion, but sidestepped that issue to reverse denial of the suppression motion because there was nothing in the record to support a particularized search of the car for any contraband or evidence related to the reason to arrest the young female passenger. The 9th brushed aside the explanation that if the girl was 19, as she said, of course she would have had identification with her. Dissenting, Callahan argues that it was reasonable to assume that some identification was in the car. The identification could support prosecution for false statement to the officer or obstruction.

Sivak v. Hardison, No. 08-99006 (M. Smith with Kozinski and Thomas).

In this capital habeas arising from a felony-murder conviction of a store clerk, the 9th grants sentencing relief. The petitioner's due process rights were violated when the state used jailhouse informants who lied. One admitted he was a habitual liar on the stand; the other committed perjury as to the benefits he received for testifying. Each informant said that the petitioner was the triggerman and had been involved with the murder (there was a co-defendant). There was overwhelming evidence of the petitioner's involvement at the guilt phase, but the testimony was prejudicial at the sentencing stage. The 9th also held that the claim was not procedurally barred, and that the petitioner had raised the issue.

Congratulations to Bruce Livingston and Colleen Ward of Federal Defender Services of Idaho.

U.S. v. Cisneros-Resendiz, No. 10-50521 (9-6-11) (Ikuta with Rymer and Tallman).

The 9th considers again prejudice from an IJ failing to provide information about potentially available discretionary relief from an entry of a removal order. This comes in the wake of U.S. v. Barajas-Alvarado, No. 10-50134, 2011 WL 3689244 (9th Cir. Aug. 24, 2011). The 9th focuses on the withdrawal of an application of admission. The 9th holds that there was no prejudice because the calibration on such discretion does not weigh equities, such as family or cultural ties, but "interests of justice" as to the causes of inadmissibility.

Ybarra v. McDaniel, No. 07-99019 (9-6-11) (Tallman with Silverman and Clifton).

The 9th affirms the denial of a petition seeking capital relief. The 9th finds error in dismissing a claim raising the issue of impartial jury because of failure to exhaust, but still does not grant relief. The 9th also finds error in finding a claim raising prosecutorial misconduct unexhausted. It was exhausted, but still no relief was forthcoming. The 9th denies relief on various IAC claims.

Payton v. Cullen, No. 07-99020 (9-2-11) (Rymer with Gould and Rawlinson).

Relief was granted, and then taken away by the Supremes. Back to the district court for claims not addressed. The district court denied the claims. On appeal, the 9th dismissed the challenge to California's lethal injection protocol as premature. It affirmed denial of IAC, Brady, and cumulative error claims.

Case o' The Week: That (Apprendi) Dog Don't Hunt -- Harmless Error for Apprendi cases, Hunt

Think "harmless error" analysis is the dry, technical domain of appellate wonks? Compare these two quotes:

"Today, a defendant who has consistently evaded responsibility for his criminal conduct is once again rewarded for his labors. And today, the public sees a criminal who has shown nothing but cruelty to his fellow citizens and contempt for the law escape a richly deserved sentence based on an irrelevant technicality."

United States v. Hunt, 2011 WL 3850555, *17 (O'Scannlain, J., dissenting) (9th Cir. Sept. 1, 2011).

"We are aware that Hunt has a less than stellar criminal record, but we reject the dissent's implicit suggestion that Hunt's criminal record should somehow influence our harmless error analysis."

Id. at *9 (majority decision, written by Judge Paez).

You'll have to Hunt hard if you Neder better example of how abstract legal principles can have a real-world impact. United States v. Hunt, 2011 WL 3850555 9th Cir. Sept. 1, 2011), decision available here.

Players: Decision by Judge Paez (above right), joined by Judge Beezer. Dissent by Judge O’Scannlain.

Facts: After cops discovered a FedEx package with a over kilo of cocaine they did a controlled delivery. Id. at *1. Hunt ended up with the package; he confessed when he was stopped. Id. at *2. Hunt was indicted for attempting to possess with intent to distribute over 500 grams of cocaine. Id.

At a later guilty plea, Hunt conceded that he tried to possess a controlled substance – with the caveat that he had no specific knowledge “of what [the package] contained.” Id. At sentencing Hunt argued that he had not conceded at his plea the type or amount of drug. Id. at *3. A detective then testified as to the amount in the box and opined that a buyer of large amounts of cocaine (such as a kilo) would specify the amount he wanted to purchase. Id.

Over defense objection, the district court found Hunt responsible for more than 500 grams of cocaine and sentenced him to 180 months (with an obstruction adjustment, an upward departure, and an upward variance thrown in). Id. at *4.

Issue(s): “Hunt appeals his sentence but not his conviction. He alleges that the district court erred under Apprendi v. New Jersey, 530 U.S. 466 . . . (2000), by sentencing him for attempted possession with intent to distribute an unspecified amount of cocaine even though he never admitted that he attempted to possess cocaine.” Id.

Held: “The district court erred under Apprendi in sentencing Hunt under section 841(b)(1)(C) because his maximum penalty increased from one year to 20 years in prison based on a fact – Hunt’s possession of cocaine – that Hunt never admitted and the government never proved beyond a reasonable doubt.” Id. at *6.

“[B]ecause Hunt contested the fact that the drug he intended to possess was cocaine and because the record evidence is far from overwhelming, we conclude that the Apprendi error in this case was not harmless . . . . Due to the Apprendi error, we are required to vacate Hunt’s sentence and remand for resentencing. We recognize that our ruling will result in a substantial reduction in Hunt’s sentence. On remand, the district court must resentence Hunt within the statutory range applicable given the facts that were admitted at the original change of plea hearing. . . . Without an admission to the type of drug involved in the offense or a waiver of his rights under Buckland and Apprendi, Hunt faces a maximum of one year in prison under 21 U.S.C. § 841(b)(3) . . .” Id. at *9.

Of Note: While defense folks were excited for a new Apprendi / Buckland / Thomas decision from the Ninth, Hunt is actually far more important for its second layer of analysis: harmless error. You’ll recall that Neder harmless error was the kryptonite to our Apprendi efforts back in the heady early days of this Sixth Amendment litigation. See, generally, United States v. Zepeda-Martinez, 470 F.3d 909, 913 (2006). In Hunt, Judge Paez undertakes a lengthy and rigorous review of harmless error – and after addressing each proffer of evidence, concludes that the government ultimately comes up short. Id. at *6-*9.

Judge O’Scannlain (above left) is (thoroughly) unpersuaded, and grumbles in dissent that the majority “promulgates a new rule for this circuit, essentially eliminating harmless error review of Apprendi violations.” Id. at *10 (O'Scannlain, J., dissenting).

Hunt-ing for en banc votes, Judge O’Scannlain probably exaggerates when he describes Judge Paez’s fact-specific holding as a “new rule” for the Ninth. Nonetheless, his point bears much emphasis: Hunt is now one of the precious few harmless error cases that favor the defense, and deserves a close read and heavy citation.

How to Use: This defendant was sentenced to 15 years; he’ll serve one after appeal. How do we replicate that outcome? There are, sadly, some caveats.

As Judge Paez observes, the judge and AUSA could have simply been more precise during the plea colloquy and secured Hunt’s explicit admission of the type of drug he intended to possess. Id. at *9. And, if Hunt balked (as he did here), the AUSA could have demanded a Thomas bench trial to try to prove it. Id. (Though Judge Paez, intriguingly, discusses “proof beyond a reasonable doubt” “to a jury” in Hunt.) Id. at *6.

In sum, Hunt’s gambit is an interesting needle, but one that can be a tad tricky to thread.

For Further Reading: Hunt came down the same day as another Apprendi decision in the Eight Circuit. The good Prof Berman highlights the very different outcomes in these two cases, in his blog here.


Image of the Honorable Richard Paez from http://lawweb.usc.edu/news/article.cfm?newsID=1121

Image of the Honorable Diarmuid O’Scannlain from http://www.timesofmalta.com/articles/view/20110411/local/american-judge-invites-maltese-lawyers-to-view-speedy-trial-act.359282


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


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U.S. v. Hunt, No. 09-30334 (9-1-11) (Paez and Beezer; dissent by O'Scannlain).

The defendant plead guilty to attempt to possess a controlled substance with intent. At the plea colloquy, the amount or type was not made clear; neither was the specific knowledge required for attempt. This resulted in Apprendi error. It was not harmless because the defendant had always disputed the amount supposedly involved. His sentence is reduced from 15 years to 1 year. Dissenting, O'Scannlain scoffs at the result, complaining that the majority has effectively gutted any harmlessness in an Apprendi analysis. He argues that evdience overwhelmingly shows that the defendant intended to possess cocaine and distribute it.

U.S. v. Lafley, No. 10-30132 (9-1-11) (Thomas with D. Nelson and Graber).

The 9th upholds a SR restriction barring use of marijuana against a challenge under the Religious Freedom Restoration Act. The government had a compelling interest.

Jackson v. Ryan, No. 10-15067 (9-1-11) (Gertner, D.J., with B. Fletcher and Thomas).

The 9th finds error in a felony murder instruction. The matter is remanded for the court to consider AEDPA and IAC issues in light of the finding.