Case o' The Week: Tense Argument in Child Porn Case - Williams and Child Pornography

Statutory construction, assures the Ninth, and verb tense analysis reveal that advertising an offer to distribute child pornography merits a fifteen-year mandatory minimum sentence.

(Actually distributing child porn, by the way, will get you five). United States v. Williams, 2011 WL 5084645 (9th Cir. Oct. 27, 2011), decision available here.
Players: Hard-fought appeal by Reno AFPD Michael Powell. Decision by Judge Thomas, joined by Judge NR Smith and visiting C.D.J. Solomon Oliver, Jr..

Facts: Williams used peer-to-peer software to post and share over 5,000 images of child porn. Id. After FBI agents traced these images to Williams, they searched his home and found a number of suspicious items related to boys. Id. Williams confessed he used internet networks to view and share child porn. Id.

He was indicted on possession, distribution, and (important to this appeal) “advertising the distribution of child pornography in violation of 18 U.S.C. § 2251(d)(1)(A).” Id. Williams moved to dismiss the advertising count, “arguing that the statute only applies to individuals who either advertise to produce child pornography or advertise child pornography that they actually produced.” Id.

The district court denied the motion; Williams entered a conditional plea to the advertising count.

Issue(s): “The sole issue is whether 18 U.S.C. § 2251(d)(1)(A) requires an individual to personally produce the sexually explicit visual depictions of minors that he advertises for distribution.” Id. at *1.

Held: “The plain language of § 2251(d)(1)(A) answers the question before us: There is no requirement that a defendant personally produce child pornography in order for criminal liability to attach.” Id. “In sum, the plain language of the statute and interpretations by our sister circuits lead to the conclusion that personal production is not an element of the crime.” Id. at *2.

Of Note: Williams was charged with three federal child porn crimes: possession (no mandatory minimum); distribution (five year mandatory minimum); and advertising the distribution of child porn (fifteen year mandatory minimum).

The first two charges fall under the familiar child porn statute: 18 USC § 2252A. The third – at issue here – falls within Section 2251, “sexual exploitation of children.”

When you read Section 2251 in its entirety, it is clearly focused not on viewing or distributing child porn, but on actual sexual contact with minors. In other words, by some dramatic overcharging the government obtained a fifteen-year mandatory minimum sentence for the act of “advertising” the distribution of previously-manufactured child porn. Had Williams been convicted of the (more egregious) distribution of child porn, he would have only had a five year mandatory minimum sentence. Compare 18 USC § 2251(e) (advertising) with 18 USC § 2252A(a)(2)(B) (distribution).

The fact that the “advertising” statute carries a fifteen year mand-min, and the other statute’s “distribution” charge carries five, is strong support for Williams' argument that the heavier sentences of § 2251 are intended for defendants who actually interact with kids, instead of someone redistributing existing porn. Williams is unfortunately silent on the mandatory-minimums that are what are really driving this case – Judge Thomas summarily dismisses the defendant’s charging challenge in a brief paragraph at the end of the decision. Id. at *4.

How to Use: Defending a child porn case? Read past Williams statutory construction analysis, ignore its exegesis on verb tenses, and think deeply about the decision’s tolerance of (in our view) a dramatically-overcharged and mis-charged case. Consider that there was no proof that Williams actually had inappropriate contact with a minor, then consider that he got fifteen years for advertising an offer to distribute existing child porn. See DOJ post here.

This is not just a dry little decision on obscure principals of statutory construction – Williams’ broader ramifications make it a must-read opinion for those who defend child porn cases.

For Further Reading: Fair to say we’re not fans of Williams, but all was not bad news in the Ninth this week. On October 27, the Court voted to take the regrettable Nosal case en banc. You’ll remember that Nosal was a dramatic extension of the Computer Fraud and Abuse Act into the context of an employer’s computers. See blog here.

Note that Joe Russoniello (left) was first Nosal’s attorney – then became the US Attorney for the office prosecuting Nosal! See id. Now that Melinda Haag has Joe’s corner office, maybe he can switch again and argue on Nosal’s behalf en banc?



"Advertise Here" gif from http://visainfobd.com/images/ADVERTISE_HERE.gif Image of Joe Russoniello from http://theeliteones.files.wordpress.com/2010/03/joe-russoniello4.jpg

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


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Boyer v. Belleque, No. 10-35574 (10-28-11) (Gould with Fisher and Paez).

The 9th in habeas holds that the state proved attempted aggravated murder by sufficient evidence.

U.S. v. Newman, No. 10-10430 & US v. Tedesco, No. 10-10444 (Graber, Kozinski, O'Scannlain).

In these issue related cases, the 9th considers whether forfeiture of proceeds is the same as restitution. It is not. Indeed, the remedies serve different purposes, and seek to disgorge funds and to make whole. So what, concludes the 9th, if the defendant has to pay more; the defendant has harmed society and the costs are high. Here, the defendant in a bank robbery has to forfeit his proceeds and make restitution and the same in a bank fraud case, although the latter is remanded for fact-finding as to what exact amount should be forfeited.

U.S. v. Williams, No. 10-10550 (10-27-11) (Thomas with N. Smith and Oliver, D.J.).

The defendant argues on appeal that he cannot be convicted for advertising child porn if he did not produce the child porn. The 9th says "Yes you can." The defendant's argument that the language of the statute, 18 U.S.C. 2251(d)(1)(A), requires some direct connection to the production of the child porn, an argument that focuses on verb tenses (i.e. "involves") is rejected, as the 9th finds the language plain and the meaning clear that advertising does not require hands on production of the child porn.

Schultz v. Tilton, No. 09-55998 (10-27-11) (per curiam with Goodwin, Wardlaw, and Sessions, D.J.).

The petitioner argues that California's Jury Instruction (CALJIC) No. 2.50.01 (8th ed. 2002) violated due process by not requiring every element of the offense be proved beyond a reasonable doubt. This is a habeas challenge to a state sexual offense conviction, in which the state jury instruction allows the consideration of other uncharged sexual molestation acts to be considered as proof of preponderance. The 9th applies the deferential AEDPA standard, and holds that the state courts acted reasonably in holding that the instruction only goes to proof of propensity, but other instructions require the present crime be proved beyond a reasonable doubt. Moreover, the instruction delineates that the evidence is for a limited purpose.

Seeboth v. Mayberg, No. 09-15330 (10-27-11) (Bea with O'Scannlain and Graber).

The petition is dismissed as moot. The petitioner was determined to be a sexually violent predator in a civil trial. He was held for determinate two year periods. A state proposition changed confinement to an indeterminate period, and the state courts held that state petitions for extensions of time were deemed extensions for indeterminate sentences. Petitioner argues that his due process rights were violated because he was held from 2005 until 2010 without a trial. The 9th dismisses as moot because petitioner was subsequently given a trial and found to be still a sexual predator, and he was in custody for an indeterminate period.

Habeas Update: Twelve Rules For Surviving The AEDPA

For those who litigate federal habeas corpus cases, the arc of habeas law has bended steadily toward procedural traps and obstacles that tolerate and enable violations of federal constitutional rights in state courts. In an effort to encourage development of state court records that permit federal courts to more frequently reach the constitutional merits, we have posted this article entitled Recent Supreme Court And Ninth Circuit Habeas Decisions: Why We Need Full Factual Development And Preservation Of Issues In State Court. As with surgeons who use checklists to improve medical outcomes (and as in the movie Zombieland Columbus keeps rules for survival), we have come up with twelve rules for state practitioners that can ameliorate the threats to merits review posed by the Antiterrorism and Effective Death Penalty Act of 1996 and recent construction of that statute. For example:

Rule # 1
Double Tap: If The Issue's Worth Raising, It's Worth Federalizing.

Rule # 6
Full Facts First: Make Sure The State Factual Record Has Every Possible Evidentiary Support For Your Position.

Rule #9
Cardio: Develop The Stamina To Raise Federal Issues On Appeal And Petition For Review Because They Must Be Presented To The Highest State Court To Be Exhausted.

The article also addresses developing issues such as why there should be no diligence requirement in Schlup actual innocence cases and why we need to develop evidence regarding the adequacy of state review procedures. If you have thoughts on modifications, deletions, and additions to the rules, please email your ideas. If there are state practitioners who might find the article useful, pass it on.

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

U.S. v. Reveles, No. 10-30313 (10-24-11) (Guilford, D.J., with Noonan and M. Smith).

The defendant was driving while impaired on a military base. He was given a non-judicial punishment by the Navy under the Military Code. After getting fined, reduced in rank, and other punishment, he then faced a criminal prosecution. A double jeopardy challenge was raised. The 9th held that there was no double jeopardy bar because the military punishment was non-judicial punishment, and not criminal. Looking at congressional intent, Congress did not mean to impose criminal punishment under the provision of the Military Code. The penalties do smack of punishment, but do not rise to criminal because of the limited cap or max and limited punitive intent. Since the first prosecution was not criminal, there is no bar.

Doe v. Busby, No. 08-55165 (10-24-11) (M. Smith with Pregerson and Beezer).

The 9th affirmed the district court's granting of habeas relief. The 9th rejected the State's argument against equitable tolling. The State acknowledges that counsel was incompetent, abandoned the client, and the client tried to file a petition, but argued that the petitioner should have known that counsel was incompetent. Really, that was the argument. It was given short shrift. The 9th then held that there was constitutional error because, under California's CALJIC No. 2.50.01, the state argued that murder and domestic violence could be proved by the jury finding unadjudicated prior acts of domestic violence by a preponderance of proof. Under precedent, Gibson v. Ortiz, 387 F.3d 812 (9th Cir. 2004), this state instruction has been held unconstitutional for this lessening of proof beyond a reasonable doubt. A general instruction as to the State's requirement to prove each element beyond a reasonable doubt does not save the conviction.

Case o' The Week: Ninth Gives Defense Welcome Immunity Shot - Wilkes

California Congressman Randall "Duke" Cunningham (right) took his resignation hard, after being caught in a massive bribery and corruption scandal. Duke's alleged co-conspirator, Brent Wilkes, has cause for a more joyful reaction: the Ninth just sent his case back down after conviction when the defense was denied court-ordered immunity for an important witness. United States v. Wilkes, 2011 WL 4953070 (9th Cir. Oct. 19, 2011), decision available here.

Players: Big win for San Diego Ass’t Fed. Defenders Shereen Charlick and Gabriel Cohan.

Facts: Wilkes’ company converted government docs to an electronic format. Id. at *1. To win government contracts Wilkes spent tens of thousands of dollars on meals, trips, and payments to former California Congressman Randall “Duke” Cunningham. Id. The bribes and contracts escalated for eight years, until a newspaper exposed the scheme and Wilkes was charged with a variety of federal offenses. Id. At trial Wilkes sought immunity for defense witness Williams, whom he contented would contradict the testimony of prosecution-immunized witnesses. Id. at *2. The district court denied the motion, holding that it “could not compel a defense witness’s immunity absent a finding of prosecutorial misconduct.” Id. Wilkes was convicted of thirteen counts, and appealed. Id.

Issue(s): “Wilkes maintains that the district court should have compelled the prosecution to grant use immunity to defense witness Williams because had he been granted immunity, his testimony would have corroborated Wilkes’s testimony and directly contradicted the testimony of immunized government witnesses. The government contends that Wilkes was not entitled to compelled use immunity for Williams because Wilkes failed to provide a valid offer of proof of Williams’s testimony in the presence of the witness’s counsel and counsel for the government. Wilkes’s ex parte proffer to the district court was thus meaningless, the government argues, because there was no reason to believe Williams would have testified as Wilkes proffered.” Id. at *3.

Held: “Here, the district court concluded that Wilkes had proffered testimony by Williams that would have been ‘material and relevant evidence that the defense would want to present to counter some of what’s been presented by the United States through immunized witnesses.’ The district court also repeatedly expressed its concern that not granting Williams immunity would have the effect of distorting the fact-finding process. The court nonetheless refused to compel use immunity because it concluded that it was powerless to do so absent a finding of prosecutorial misconduct.” Id. at *5.

“In view of this court’s ruling in Straub that a finding of prosecutorial misconduct is not required to compel use immunity, this matter must be remanded to the district court for an evidentiary hearing so the trial court can gather ‘greater detail about [Williams’s] proposed testimony and the immunity agreements the government gave to its other witnesses’ to determine whether compelled use immunity was constitutionally required. Straub, 538 F.3d at 1151.” Id. at *6.

Of Note: Sadly, other issues in this long opinion didn’t fare as well as the defense-immunity question. Of particular concern is the Court’s tolerance for withholding proffer sessions from the defense. Id. at *6-*7. Wilkes argued a Brady / Giglio violation when the government failed to disclose proffer sessions of an important witness. Id. at *7. Judge Alarcón, in our view, incorrectly characterizes these sessions as “cumulative” – the defense already knew that the government witness had immunity, and knew of the witness’s involvement of in the bribery scheme. Id. at *7.

However, as anyone who has proffered a snitch knows, Judge Alarcón’s justification misses the point: those secret sessions are where a cooperator’s story is “polished” (or “dictated”) into an acceptable script for the government. It is the changes in a cooperator’s story, revealed in proffer sessions, that is the Giglio gold – not the obvious fact that the cooperator is also a crook.

The disclosure of Gilgio material from proffer sessions is a challenge that needs further work: Wilkes’ analysis gives the issue short shrift.

How to Use: When hunting immunity for defense witnesses, compare Wilkes to another post-Straub case, Flores-Blanco. See blog here. The key difference in the two Ninth Circuit decisions? In Wilkes, there were prosecution-immunized witnesses; in Flores-Blanco, not. That key fact can give much sharper teeth to a Straub challenge to failure to order immunity for defense witnesses.

For Further Reading: President Obama has nominated a replacement for Ninth Circuit Judge Rymer: Paul Watford (above left). See article here. A former AUSA and a Justice Ginsburg clerk, 44-year old Watford will presumably have a different confirmation experience than (now-California Supreme Court Justice) Goodwin Liu.




Image of Randall "Duke" Cunningham from http://www.momdot.com/biggest-meltdowns
Image of Judicialnominee Paul Watford from http://articles.latimes.com/2011/oct/18/nation/la-na-obama-nominates-judge-20111018


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


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U.S. v. Rizk, No. 10-50051 (10-19-11) (Gould with Schroeder and McCuskey, Chief D.J.).

In an appeal from a loan fraud, bank fraud, and conspiracy trial, the 9th affirms convictions and sentences. The defendant was a licensed appraiser that allegedly appraised too high. The 9th found sufficient evidence to support the conviction, and also affirmed numerous other contentions. This is a good road map for evidentiary issues in mortgage fraud matters. Of special note was the discussion by the 9th on FRE 1006 concerning summaries (which will be used a lot in document cases) and their interplay with FRE 404(b) (other act evidence). The 9th also corrected the restitution so that the victims did not receive more than their losses.

U.S. v. Wilkes, No. 08-50063 (10-19-11) (Alarcon with O'Scannlain and Silverman).

This appeal arises from prosecutions related to the bribery prosecution of Congressman "Duke" Cunningham. The 9th remands for an evidentiary hearing on whether the government's refusal to grant immunity to a defense witness, after granting immunity to many of its witnesses, so skewed the trial as to require a constitutionally mandated grant of immunity by the prosecution. In this, the 9th follows its precedent in U.S. v. Straub, 538 F.3d 1147 (9th Cir. 2008). In Straub, the 9th held that a district court can compel a defense witness's immunity without a finding of prosecutorial misconduct. It can do so in "exceptional cases" where the fact-finding process is so distorted by the government's granting immunity to its own witnesses while denying immunity to a defense witness who has directly contradictory testimony. Straub, 538 F.3d at 1166. Here, the defense witness was found by the court to have relevant, contradictory evidence. The court thought it needed to find prosecutorial misconduct (Straub came out subsequently). As to various challenges for Brady / Giglio evidence, the 9th found found no violations because of no prejudice. The 9th also held there was not prosecutorial misconduct in argument, as the prosecutors were responding to defense arguments. There was also no Santos violation.

Congratulations to Shereen Charlick and Gabriel Cohan of the Federal Defenders of San Diego.

Case o' The Week: Inmate Gets Shanked -- Urena, Confrontation Clause, and Experts

In Urena, an inmate was hurt in an unfair fight, where contraints meant that he unable to defend himself in any meaningful way.

And that was just the trial. United States v. Urena, 2011 WL 4840665, (9th Cir. Oct. 13, 2011), decision available here.

Players: Hard-fought appeal by CD Cal AFPD Elizabeth Newman.

Facts: Inmate Urena was charged with assault and possessing a shank. Id. at *1. At trial, the government called the doc who had treated the victim – another inmate. Id. The doctor was offered to testify “on the nature and extent of [the victim’s] injuries.” Id. The doc’s report had opined that an injury above the victim’s eye “was likely caused by a punch, or a fall to a ground, not a knife.” Id. The government moved to prevent the defense from crossing the doc on causation – the cause of the injury – and the court granted that motion. Id. At trial, Urena tried to designate the doc an expert to ask about the injury; the district court refused. Id. Urena was convicted. Id.

Issue(s): 1. Confrontation Clause: “Urena . . . contends that the district court erred by preventing him from examining Dr. David about the cause of [the victims] injuries and that this violated his Confrontation Clause rights.” Id. at *3 . . . .

2. Expert Witness: “Urena alternatively argues that the trial court erred 1) by ruling that testimony about causation of the injuries would be expert testimony and 2) by not allowing Urena to designate Dr. David as an expert.” Id.

Held: 1. Confrontation Clause: “The Government called Dr. David to testify only as to the nature and extent of [the victim’s] injuries. Urena’s Confrontation Clause rights were not violated, as he was allowed to cross-examine Dr. David on these issues, and on matters of bias and motivation.” Id.

2. Designation as Expert: “[O]ther courts have held that a physician’s assessment of the cause of an injury is expert testimony . . . . We are persuaded, and agree with our sister circuits, that Dr. David’s opinion on issues of causation required expert testimony.” Id. at *3. “Urena’s argument that he should have been allowed belatedly to designate Dr. David as an expert to testify on the cause of the injuries also lacks merit . . . [I]nstead of designating a medical expert before trial, he tried without success to designate Dr. David as his expert once trial had begun. The district court has ample discretion to prevent a party from designating a new expert witness after the trial has started.” . . . “We hold that the district court here did not abuse its discretion in declining to permit Urena to add Dr. David as a defense witness on the causation issue during trial.” Id. at *3.

Of Note: With little analysis authoring Judge Gould adopts a new Ninth rule: a treating physician cannot testify as to causation, without being designated as an expert. Id. at *3. Could a percipient, lay witness – here, the treating doc – also be designated as an expert witness and opine as to causation? Sure, under the rationale of a regrettable Ninth expert decision, United States v. Anchrum. See Anchrum blog here.

Note that Judge Gould did not say in Urena that the treating doc could not have been designated as an expert as to causation: the problem was one of inadequate notice by the defense of this anticipated expert testimony. Id. at *3.

How to Use: As noted by fellow blogger Jon Sands, Urena stands for the broad proposition that a district court has tremendous discretion to control the presentation of witnesses in trial. Id. at *3. Urena significantly strengthens defense arguments that a district court can and should order detailed pretrial disclosure of government witnesses, and that a district court can unilaterally exclude witnesses (with no showing of unfair surprise or prejudice) if late disclosures were not in compliance with pretrial orders. Id.

The government, not the defense, is far-more-frequently the culprit with late witness disclosures, belated expert notices, or expert testimony that exceeds the pretrial description. (Probably because we rarely have witnesses). Along with the W.R. Grace decision, Urena bolsters a district court’s ability to put short work to these government shenanigans. See id. at *3 (quoting Grace, 526 F.3d 499, 516 (9th Cir. 2008) (en banc); see also W.R. Grace blog here.

For Further Reading: For a thoughtful criticism of Urena’s rejection of a self-defense instruction, see blog here.


Image of "Shank" movie from http://www.brokeandfamous.cz/blog/2010/02/04/shank-movie-trailer/



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

U.S. v. Carper, No. 10-10517 (10-14-11) (Noonan with M. Smith and Fogel, D.J.).

On a clear night, you can see forever with PVS-14 night sight equipment. That was the problem for the Marine who, to make some extra money, sold a night sight device to a Polish resident, another to a Chinese resident, and three others knowing they were being shipped to China. He pled guilty straight up to the four-count Indictment charging violations of 18 U.S.C. 554, 371, and 22 U.S.C. 2778, making criminal the unlicensed export of items on the U.S. munitions list. On appeal, he argued that the court should have used the offense level 14 and not 26 under USSG 2M5.2, because 14 applies to non-fully automatic small arms, not exceeding ten. The problem, reasons the 9th in affirming the sentence, is that the night sight devices are not firearms. The adjustment would not apply. As to the issue of departing on policy grounds, well, that was not raised, and under plain error review, the sentence of 36 months was reasonable.

U.S. v. McEnry, No. 10-10433 (10-13-11) (Tashima with Rawlinson and Hatter, Sr. D.J.).

The 9th finds sentencing procedural error when it incorrectly calculated the defendant's guidelines. The defendant was charged with operating an aircraft as an airman without an airman's certificate in violation of 49 U.S.C. 46306(b)(7) (a pilot's license in effect...he did have a student's certificate in 1986). Oh yes, he came to the attention of the FAA, and the airport where he landed, when he appeared unsteady, disoriented, and spoke about flying through military airspace alongside military jets. At sentencing, there was no guideline on point, and so the court used a guideline that referenced interference with a flight, based on relevant conduct. The 9th found error because relevant conduct cannot be used to pick out a guideline; rather, the guideline has to be most applicable, and here it would be 2B1.1, which has enhancements for risk.

Congratulations to AFPD Eric Kersten of the FPD Office, Eastern District of California (Fresno).

U.S. v. Urena, No. 09-50285 (10-13-11) (Gould with Schroeder and McCuskey, D.J.).

This is a prison assault case that raises some troubling issues, all of which were rejected by the 9th in affirming the conviction for assault with a dangerous weapon and sentence. First, the defendant argued that he acted in self-defense because he was earlier called "a bitch" by a fellow inmate. He also argued that the victim carried a shank. The 9th said that the undisputed evidence was that the defendant was the aggressor and that harsh or insulting words do not give a person leave to attack, even in prison. It should be noted, though, that the defendant had presented some evidence that the victim had a shank, and so the attack could have been an escalation of a fight. Not much evidence is needed for an instruction. More troubling is the district court's barring of a doctor to testify on cross as to the causation of a wound. The doctor wrote a report that there was a wound on the victim's face, and it was caused by a fall or punch. The government called the doctor only to testify as to the nature and extent of the injury, not as to the cause. The district court barred defense counsel from crossing on the causation as being outside the scope, and barred counsel from using the doctor as an expert because he was not so designated. The 9th held that confrontation was not violated because counsel could cross on the extent of direct testimony. The court had discretion to prevent new evidence once the trial was underway. (Editorial note: the court did not address the fact the government was not surprised, and it gave important evidence as to the injury. The next time the government tries to bring in new evidence, this case can be cited against them as the need for enforcement of pretrial disclosure). Lastly, the defendant was assessed criminal history recency points, despite the fact that a guidelines amendment eliminated such points. The 9th held that the defendant is sentenced under the guidelines in effect at the time, and that it is substantively reasonable. The 9th acknowledges that the basis for the adjustment, recidivism, was shown to be faulty, but the 9th would not remand to give the district court a chance to re-evaluate its sentence in light of the amendment. If a guideline amendment is not retroactive, and this was not, then tough, one gets the guidelines in effect.

U.S. v. Reyes, No. 10-10323 (10-13-11) (M. Smith with Gould and Marbley, D.J.)

The 9th affirms convictions for securities fraud and false filings. The 9th finds no prosecutorial misconduct in evidence as to the profits of the defendant in backdating proxies; the evidence was to show motive. The 9th also finds the evidence sufficient to support the verdict.

James v. Schriro, No. 8-99016 (10-12-11) (W. Fletcher with Berzon and M. Smith).

The 9th grants IAC relief on penalty phase of a capital sentence. The 9th finds that trial counsel completely failed to investigate and present mitigating evidence of the petitioner's troubled childhood, mental illness, and drug abuse. Such failure was prejudicial. The 9th denied relief on the guilt phase claims based on Brady, Giglio and Napue evidence (a plea agreement with the testifying juvenile co-defendant turned cooperator) because of harmlessness and lack of prejudice due to overwhelming evidence of guilt.

Case o' The Week: "Willful" Obstruction of Justice - for Unknown Investigation? Gilchrist and U.S.S.C. § 3C1.1

Don't lie. Or, at the very least, don't lie in a civil deposition when the feds have an investigation underway. If you do, obstruction of justice awaits (even if you don't know of the federal investigation at the time of the lie!) United States v. Gilchrist, 2011 WL 4537789 (9th Cir. Oct. 3, 2011), decision available here.


Players: Hard-fought appeal by our ND Cal CJA colleague Bob Waggener. Appeal from sentencing imposed by D.J. Susan Illston, ND Cal. Decision by Judge Carlos Bea (above left).

Facts: Gilchrist had a check–kiting and fraud scheme running with Wells Fargo. Id. at *1. When caught, he made a fraud claim against Wells Fargo – and civilly sued the bank! Id. at *2. Unbeknownst to Gilchrist, the FBI picked up the referral from Wells Fargo and began an investigation. Id. at *2. Gilchrist then perjured himself in depositions related to the civil suit. Id. at *2.

Gilchrist was ultimately charged federally and pleaded guilty to federal embezzlement and bank fraud. Id. at *1-*2. At sentencing Judge Illston imposed the “obstruction of justice” enhancement under USSG § 3C1.1, adding two levels for Gilchrist’s lies during the civil depositions. Id. at *3.

Issue(s): “[Gilchrist’s] primary contention is that because he did not know he was the subject of a pending criminal investigation at the time he committed perjury in a civil suit concerning the very same conduct later charged in the criminal Indictment, the district court erred in applying U.S.S.C. § 3C1.1 to enhance his sentence for willfully obstructing justice.” Id. at *1.

Held: “We agree with our sister circuits that ‘willful means only that the defendant have engaged in intentional or deliberate acts designed to obstruct any potential investigation, at the time an investigation was in fact pending; it does not mean the defendant had to know for certain that the investigation was pending.” Id. at *9.

Of Note: When the challenge is that a district court abused her discretion at sentencing, what is the standard of review? Hinkson, it turns out. We’ve bellyached about the regrettable new Hinkson standard for abuse of discretion from 2009, concocted in the context of evidentiary rulings for a federal conviction. See blog entry here. In Gilchrist, Judge Bea expressly relies upon that hugely deferential standard while reviewing Judge Illston’s sentence. See id. at *6.

Hinkson is a formidable hurdle if you are a defendant alleging an abuse of discretion at sentencing. If you are a defendant defending a sentence against government attack, however, be sure to tuck up under Hinkson’s remarkably deferential wings (the Ressam en banc case is a great example, where the government is challenging the substantive reasonableness of a sentence).

How to Use: Gilchrist adopts a new and unwelcome rule in the Ninth Circuit: you can get hit with obstruction for lying during civil depositions, even if you weren’t aware of a federal investigation when you lied. In an era where banks and Silicon Valley firms have shouldered the bulk of the FBI’s white collar investigation responsibilities, this new rule is yet another thing to worry about in civil depositions – and is a new basis for asserting the Fifth during a depo.

The one solace is that Judge Bea emphasizes a distinction between the Ninth’s rule and the rule in (some) other circuits: the federal investigation must actually be underway when the civil perjury takes place.

For Further Reading: Have you been watching Ken Burns’ great new documentary, Prohibition, on PBS? (You should). Sentence guru Professor Berman has, and has written a terrific post on the series here. The good Prof muses on the parallels between the prohibition of booze a century ago, and the federal prohibition of pot today. It’s a particularly timely analogy, as the Obama administration flip-flops on its earlier position and is now sending target letters to marijuana dispensaries – clinics that are in full compliance with state regulations. See Associated Press article, here.


Image of the Honorable Carlos Bea from http://www.hispanicallyspeakingnews.com/notitas-de-noticias/details/sb-1070-judge-was-once-almost-deported/ Image of Medical Marijuana from http://infohemp.com/wp-content/uploads/2011/01/California-Medical-Marijuana-150x150.jpg Image of Prohibition promo from http://www.thefastertimes.com/crime/2011/10/02/ken-burns-prohibition-a-documentary-about-the-promise-of-america/


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


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Carreras v. Ayers, No. 08-99007 (10-4-11) (Bea with O'Scannlain; dissent by Tashima).

The 9th considers whether defense counsel's failure in a 1983 California capital trial to object to a prosecutor's allegedly group bias-based preemptory strikes was IAC. The 9th held it was not IAC. The prosecutor struck six Hispanic venirepersons. Two Hispanics did sit as jurors, with one as an alternate. The defendant had a high bar to prove ineffectiveness, and he did not clear it. The reasons for striking the prospective jurors seemed strategic and tactical, and the record supported reasons to want them removed. Tasima dissents, arguing that a prosecutor's striking of 75% of Hispanic jurors should have rang an alarm. The reasons for such strikes seem flimsy.

U.S. v. Gilchrist, No. 09-10250 (10-3-11) (Bea with Schroeder and Rawlinson).

A defendant who perjures himself in an attempt to impede a civil administrative investigation conducted by a governmental investigative body that eventually results in related criminal charges can be subject to a 3C1.1 Guideline enhancement for obstruction, even if he is not aware of the pending or ongoing criminal investigation. "Wilful" obstruction means that the defendant engaged in intentional obstruction at the time of a pending investigation; it does not mean that the defendant had to know for certain that the investigation was pending. This aligns with other circuits, which go even further, such as the 11th, which does not even require a criminal investigation be underway at the time.

U.S. v. King, No. 09-30442 (10-3-11) (W. Fletcher with Aldisert and Fisher).

The 9th upholds the Safe Drinking Water Act, 42 U.S.C. 300h-2(b)(2) against a constitutional challenge that the Act violates commerce clause jurisdiction. Congress has the power to regulate interstate commerce, and safe underground water affects interstate commerce. The 9th also affirms the counts of conviction against statutory challenges that the government failed to prove that an injection of water adversely affected well water; the government need only show that the defendant failed to get a permit to inject water. The 9th also affirms the false statement conviction. The false statement need not be made to a federal agent; it must be, and was, made to an agency that has the power to exercise authority over the subject matter.

Case o' The Week: The Sixth Glitch in Fitch -- Upward Variances on Judge-Found Facts

How does one manage to get a twenty-one year sentence for murder, when:

● No body is ever found;

● No murder charges are ever filed;

● No jury ever hears the charge; and,

● There is insufficient evidence to prove the suspected crime beyond a reasonable doubt?

Easy -- just get convicted of fraud in federal court. United States v. Fitch, 2011 WL 4430809 (9th Cir. Sept. 23, 2011), decision available here.

Players: Decision by Senior District Judge Block (ED NY), joined by Judge NR Smith. Dissent by Judge Goodwin.

Facts: David Fitch dated Ms. Molano and went to visit her in England. While there, and while still romantically involved with Molano, Fitch met and married a different woman: Ms. Bozi. Id. Bozi came to the US and lived with Fitch in his Nevada mobile home. Soon after, Ms. Bozi stopped calling family and friends abroad. Id. at *2.

For weeks after Bozi’s last call, Fitch withdrew money from her bank account (one time wearing a fake mustache). He also withdrew a $8,000 cashiers check from Bozi’s account, made payable to Molano. Id. A search of Fitch’s trash produced a receipt for chloroform sold to, “Dr. David.” Fitch later tried to sell used women’s clothing and shoes, explaining his wife had “left him.” Id.

Under investigation, Fitch made a false ID and passport, flew the England, and married Molano using an assumed identity. Id. at *3. He was arrested when he returned to the U.S.; later searches revealed guns, Bozi’s passport, and a number of books in Fitch’s briefcase. Id. at *3 & n.4.

Ms. Bozi has not been heard of since her last calls to her friends and family.

Issue(s): “[ ] Fitch was convicted by a jury of . . .bank fraud, . . . fraudulent use of an access device, . . . attempted fraudulent use of an access device, . . . laundering monetary instruments, and . . .money laundering. The applicable Sentencing Guidelines range was 41–51 months. At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means he used to commit his crimes. Relying on that finding, he imposed a sentence of 262 months.

Fitch appeals his sentence, arguing that the district court committed procedural error and that, in any event, its sentence was substantively unreasonable. Because Fitch has never been charged with his wife's murder, his sentence is a poignant example of a drastic upward departure from the Guidelines range – albeit below the statutory maximum – based on uncharged criminal conduct. We have not had occasion to address a scenario quite like this . . .” Id. at *1 (emphases added) (footnote omitted).

Held: “. . . but are constrained to affirm.” Id.

Of Note: The unfortunate books in Fitch’s briefcase? “The Modern Identity Changer; How to Make a Silencer for a .45;. . . The Revenge Encyclopedia; 100 Ways to Disappear and Live Free; . . . Hit Man, A Technical Manual for Independent Contractors; . . . The Death Dealer's Manual; . . . How To Make a Silencer for a .22; Methods of Disguise; . . . New ID in America; and Kill Without Joy! The Complete How to Kill Book.” Id. at *3 & n.4.

How to Use: Fitch is a Big Deal. It tolerates a skyrocketing sentence, based solely on facts (a suspected murder) not found by a jury, and not proved beyond a reasonable doubt. In short, the opinion eviscerates the intent of Apprendi and fully implicates Justice Scalia’s Sixth Amendment concerns. See id. at *6. (To be fair, visiting Judge Block concedes many of these concerns -- and gives the impression he'd welcome further review in light of the Sixth Amendment issues).

Fitch cries out for Supreme Court review.

Moreover, Fitch hits us just as the Ninth struggles with the meaning of “substantive reasonableness” review. In Fitch the guideline range was just one fifth of the ultimate sentence imposed, yet the panel upholds this whopping upward variance. (The sentence imposed is five times the guideline range). Fitch came out just days after the Ressam en banc argument (argument available here), while "substantive reasonableness review" is very much on everyone's minds.

In Ressam, a downward variance resulted in a sentence 1/3 of the guideline range – yet it is Ressam that is getting the close look on substantive reasonableness review. Fitch is far-and-away the greater variance from the guidelines (a variance upward), but it is Ressam (a variance downward) that is now undergoing substantive reasonableness review by an en banc court of the Ninth Circuit.

Put differently, will the Ninth's new rule be that an upward variance five times the guideline range is OK, but a downward variance to one third of the guideline range is not?

(We know, we know -- in Gall the Supreme Court "reject[ed] the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence." 522 U.S. at 47. Still, we're in "rough justice" territory here - and if you listen to the Ressam en banc argument, the jurists are rightly concerned how any new substantive reasonableness rule will resonate against other cases).

Will Fitch and Ressam together mean that, practically speaking, substantive reasonableness review is just for government appeals, for sentences that are too low? Continue to make and preserve objections to the substantive reasonableness of sentences: Fitch and Ressam are a developing duo of cases that could have a big impact on federal sentencing law in the Ninth.

For Further Reading: Because Section 3553(a)’s parsimony provision is mandatory, Fitch affirms an unconstitutional sentence based on facts not proved to a jury beyond a reasonable doubt. For an elegant explanation of why this is so, see Steven Hubachek, The Undiscovered Apprendi Revolution: The Sixth Amendment Consequences of an Ascendant Parsimony Provision, 33 Am. J. Trial Advoc. 521 (2010).

(The California Evening Primrose (above right), it turns out, is a lot like Section 3553. To find out why, hit Huba's article).



Image of the Sixth Amendment from http://www.richardkruse.com/products/6th_Amendment_T-Shirt.jpg

Ultraviolet image of the California Evening Primrose from http://www.dailymail.co.uk/sciencetech/article-473897/A-bees-eye-view-How-insects-flowers-differently-us.html



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

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