U.S. v. Leal-Felix, No. 09-50426 (11-30-11) (en banc: N. Smith writes majority; McKeown writes concurrence; Rawlison dissents).

Sitting en banc, the 9th holds that a citation is not an intervening arrest for Guideline criminal history purposes. The defendant had two citations, issued at different times, and he was sentenced on both at the same time. The district court considered the issuance of a citation subsequent to another to be an intervening arrest (as some state laws and precedents define it). The 9th disagreed. The 9th holds that a citation does not rise to an arrest level for purposes of defining an intervening arrest. "[W]e interpret the term 'arrest' to require that the individual be formally arrested; the mere issuance of a citation, even if considered an arrest under state law, is insufficient." (20500). The Commission has not defined "intervening arrest" a citation as an arrest. An analysis of what is an arrest, drawing from Fourth Amendment precedents, does not cover a citation. A contrary approach is the Seventh Circuit, but it relies upon precedent that is questionable, misread, or inapposite. The 9th's approach finds support in the Supreme Court's definitions of arrest, and the over-all approach of the Guidelines. Here, the defendant was never told he was "under arrest" for driving with a suspended license, he was not transported to a police station, nor booked into a jail. These are formal arrests hallmarks that are missing here. Concurring, McKeown (joined by Kozinski, Graber, and Wardlaw) highlights the common understanding of what an arrest is. The concurrence has practical pragmatic reasons, some amusing (related to applications for jobs, colleges, and so forth). as to why citations are different from arrests. Rawlinson dissents, arguing that Fourth Amendment jurisprudence should not be imported to sentencing jurisprudence, and that we should not conflict with the Seventh Amendment. Rawlinson believes that treating citations as a "non-event" undermines the recidivism considerations of the Guidelines and understates the criminal history.

Case o' The Week: Ninth Breaks "One-Way Ratchet" - Tadio, Rule 35(b), and Sentencing

What could be more unfair than a "one-way ratchet": a rule that allows factors which aggravate -- but do not mitigate -- a defendant's sentence?

Fortunately, Judge William Fletcher doesn't buy it, either. United States v. Tadio, 2011 WL 5839660 (9th Cir. Nov. 21, 2011), decision available here.


(Ed. Note: Westlaw has glitched its star cites in the WL version - apologies for missing pin citations).


Players: Welcome decision with new Ninth rule by Judge W. Fletcher (left).

Facts: Tadio pled guilty to threatening a federal witness in a murder case. Cooperation before sentencing earned him a 33-month break. He continued to cooperate after sentencing, with trial testimony that lead to criminal convictions.

To reward Tadio, the government moved under Rule 35(b) for an additional 24 month reduction. Tadio countered and asked for 48 more months off. The district court went with the government’s recommendation, given “the circumstances of Defendant’s criminal conduct, and Defendant’s prior criminal history.” Over defense objection, the court held that non-Rule 35 facts “were relevant factors that may be weighed when considering a Rule 35(b) motion.” Tadio appealed, arguing only Rule 35(b) should be considered.

Issue(s): “Federal Rule of Criminal Procedure 35(b) authorizes a district court, on the government’s motion, to reduce a defendant's sentence ‘if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.’ The question in this case is whether a district court may consider factors other than a defendant’s substantial assistance in determining the amount of a Rule 35(b) sentence reduction.”

Held: “We hold that once a district court determines that a defendant has provided substantial assistance to the government, the court may consider factors other than assistance, including those listed in . . . § 3553(a), in order to ensure that the sentence ultimately imposed accords with the purposes of sentencing that Congress has articulated . . . . The sentence imposed must be related to the degree of assistance rendered, but a district court may consider non-assistance factors in awarding a reduction, whether that reduction is greater than, less than, or equal to the reduction that a defendant’s assistance, considered alone, would warrant.”

Of Note: Mr. Tadio’s loss is our gain. The Eleventh and Seventh Circuits have considered this issue, and held that non-Rule 35(b) factors were a “one way rachet” – they could mean a higher sentence, butcouldn’t let a court go down beyond the government’s recommendation. Judge W. Fletcher calls out the injustice (and illogic) of that view, and adopts a good new rule for the Ninth: “[W]e agree with those courts that allow the district court to consider the full range of factors referenced in § 3553(a) when determining the amount to reduce a sentence under a Rule 35(b) motion. However, unlike courts that have held that non-assistance factors operate as a one-way ratchet, we see no basis for that limitation. Instead, we adopt a symmetrical rule, under which the district court may consider the non-assistance factors listed in § 3553(a) when determining how much to reduce a defendant’s sentence, irrespective of the direction in which those factors cut.” (emphasis added).

How to Use: What, realistically, more can a cooperator hope to gain on a second sentencing under this new rule? Well, thanks to a terrific Sotomayor decision, post-offense rehabilitation is now fair game for the court’s consideration on a second sentencing. See Pepper v. United States, 131 S.Ct. 1229 (2011).

Interestingly, Judge W. Fletcher spices Tadio with Pepper, relying on the Supreme Court case to rebut a number of the government’s arguments. For a full paean to Pepper, and more tips on how to use the case, see Champion article here.

For Further Reading: The Stevens case in Alaska has been a jaw-dropping revelation of Brady abuses by the federal government. A remarkable new order provides a glimpse of the secret report of the scandal. Turns out that prosecutors aren’t being referred for criminal contempt prosecution, because the district court never issued a “a ‘clear and unequivocal'order directing the attorneys to follow the law.” (?!?!) So here’s an absurd but apparently necessary practice tip: start cases by moving for a clear order that AUSAs are to “follow the law.”

For presiding Judge Sullivan’s (above right) – pointed – views on these latest developments, see his order here.


Image of the Honorable William Fletcher from http://www.law.gonzaga.edu/news-and-events/Files/quackenbush/fletcher.jpg Image of the Honorable Judge Emmet Sullivan from http://www.dcd.uscourts.gov/dcd/sullivan Image of ratchet from http://s7.sears.com/is/image/Sears/00944977000-1

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



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U.S. v. Rudd, No. 10-50254 (11-23-11) (Wardlaw with Berzon and Whyte, D.J.).

The defendant pled to traveling to a foreign country to engage in illicit sexual conduct in violation of 18 U.S.C. 2423(c). He agreed to a special condition of not residing within direct view of places (listed) where persons under the age of 18 frequent. At sentencing, the court imposed a more restrictive condition, stating that he could not reside within 2000 feet of such places. This "special" special condition was appealed. The 9th held that the court committed procedural error by failing to articulate or explain why 2000 feet was necessary. The usual special condition of not having a room with a view seemed to serve the purpose shielding the defendant from temptation. Indeed, a survey of other states and districts reveal that a "view" condition was widely accepted; while even a 1000 foot condition caused some concern as creating a ban on residency. The 9th did not address the substantial reasonableness of 2000 feet given the procedural error. The sentence is vacated and remanded for resentencing.

Congratulations to AFPD Jonathan Libby of the FPD Office of CD Calif (Los Angeles).

Three Questions From Justice Kennedy

In each of three recent Supreme Court arguments, Justice Kennedy’s participation in argument distilled constitutional interests that support protection of individual rights. Whether the analyses reflected in the questions appear in the ultimate opinions remains to be seen. But Justice Kennedy’s thinking provides instruction for our approaches to the prosecution’s obligation to disclose exculpatory evidence, to the analysis of Sixth Amendment issues in the context of plea bargaining and sentencing, and to the future of privacy and technologically enhanced surveillance.

Smith v. Cain

In Smith, the New Orleans district attorney's office claimed there was no violation of the Brady obligation to produce exculpatory evidence. In a murder prosecution involving a single eyewitness, the prosecutor failed to provide the defense with several reports of pretrial statements in which the witness asserted he could not identify the shooters. As a consequence, the witness positively identified Mr. Smith at trial free from impeachment with his prior inconsistent statements. Before the Supreme Court, the New Orleans district attorney's office claimed that, although production would have been the better practice, there was no violation of Brady.

The Court heard this argument in the context of last Term's 5-4 reversal of a $14 million judgment against the New Orleans district attorney who, while withholding exculpatory evidence, sent an innocent man to death row (Connick v. Thompson). The Connick dissenters, led by Justice Ginsburg, had apparently not forgotten that the reversal was based on the district attorney’s claim that the Brady violation was an isolated incident, asking hard questions regarding the obviously exculpatory statements. But Justice Kennedy's observation separated the violation of the constitutional obligation and the availability of a remedy:

“[W]ith all respect, I think you misspoke when you -- when you were asked what is -- what is the test for when Brady material must be turned over. And you said whether or not there is a reasonable probability -- reasonable likelihood; pardon me -- a reasonable probability that the result would have been different. That's the test for when there has been a Brady violation. You don't determine your Brady obligation by the test of a Brady violation. You're transposing two very different things. And so that's incorrect.”

Smith Transcript at 48. One of the greatest frustrations in litigating Brady issues is the routine conflation of the pretrial obligation to produce exculpatory material with the post-trial consequences that flow from its concealment. Justice Kennedy demonstrated that the pretrial constitutional obligation to produce exculpatory material must not be diluted by the standard for deciding whether a violation of the constitutional obligation requires reversal.

Lafler v.Cooper

The second question from Justice Kennedy similarly focused on the distinction between a constitutional right and the remedy for a violation of that right. The Supreme Court considered two cases involving the application of the Sixth Amendment to attorney ineffectiveness during plea negotiations: in Missouri v. Frye, defense counsel failed to communicate an offer which, if accepted, would have reduced the exposure for a driving offense; in Laffler v. Cooper, the attorney incorrectly advised the defendant he could go to trial without risk on assault with intent to kill, which resulted in a much greater sentence (and no meaningful defense at trial). Both these cases looked fairly simple because, after Padilla, the guilty plea is clearly a critical stage of the prosecution at which the Sixth Amendment right to counsel applies. In both Frye and Laffler, the State admitted incompetence of counsel; on the prejudice question, the Supreme Court had previously held in Glover that even a day of additional incarceration from ineffective assistance of counsel during non-capital sentencing constitutes prejudice.

At the outset of the Lafler argument, Justice Kennedy appeared to be clearing the underbrush of what seemed obvious prejudice – exposure to greater prison time without correct advice – as opposed to remedies such as recision of the guilty plea and specific performance of the plea offer, asking:

“We can think about adjudication as having a constitutional violation, injury, and remedy. Are you saying that there was a violation in the abstract here but no injury, or was there a violation and an injury but just no remedy?”

Lafler Transcript at 5. The conversation in both cases never seemed to return to this simple analysis, which would appear to provide a basis for resolution of the difficult hypotheticals posed by various Justices. If the prisoner establishes that the plea offer would have been accepted, the prejudice element should be established under Hill with a “reasonable probability” of a different result. Given that Justice Kennedy wrote Glover, stating that “our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance,” he will likely be focusing on remedy rather than prejudice. Justice Kagan also appeared to have had Glover on her mind when she repeatedly referenced the prejudice from a single day of additional incarceration due to ineffective assistance of counsel.

The remedy question should be decided based on the principles of equity. Justice Kennedy authored the landmark Guantánamo opinion in Boumediene, which included the quotation from Schlup that habeas “is, at its core, an equitable remedy.” Similarly, the federal habeas statute incorporates principles of equity in directing courts to dispose of cases as “law and justice require.” 28 U.S.C. § 2243.In plea bargaining, if there is Sixth Amendment incompetence and prejudice, the remedy should be relatively simple. As the Santobello decision recognized, specific performance is available where one prosecutor failed to perform on another prosecutor’s plea agreement. In the same way, the equitable remedy would require the parties to be returned to the status quo ante for performance of the agreement that was thwarted by defense counsel’s ineffectiveness.

Jones v. United States

In an epic Fourth Amendment case, the Court heard argument in Jones regarding the privacy rights implicated when police use global positioning devices to effect extended round-the-clock surveillance of a citizen's car. Early in the argument, Justice Kennedy framed factors that are likely to be outcome-determinative by asking:

“Well, under that rationale [that there is no privacy in anything exposed to public view], could you put a beeper surreptitiously on the man’s overcoat or sports coat?”

Jones Transcript at 5. The question reflects concerns that permeated the rest of the argument: the intrusion from the initial placement of the device; the lack of a clear line of demarcation between surveillance and intrusion into traditionally protected areas; and the Orwellian consequences of leaving unregulated by the Fourth Amendment practices that apply to Justices as well as suspected criminals.

For those following the evolution of privacy and technology (as blogged here), the full argument is well worth the read. Across the political spectrum, the Justices seemed to have misgivings about having our country take a decisive step toward 1984 on their watch. At the same time, the government used the Court's prior steps in that direction to say that 24/7 surveillance is no big deal: after all, the Court has found no constitutional objections to the police going through citizens' trash, recording the length and destination of telephone calls through pen registers, and trespassing on property not in the curtilage, then making observations from the open fields. The non-consensual planting of the global positioning device probably provides for a narrow decision in which the defendant prevails, but the Court is clearly looking ahead to the time when technology makes such a trespass unnecessary.

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

U.S. v. Tado, No. 10-10144 (11-21-11) (W. Fletcher with Tashima and Berzon).

A defendant cooperates after sentencing, and the government moves for a Rule 35 reduction. In fashioning a sentence, does the court only look at the substantial assistance or at all the 3553(a) sentencing factors? Here, the defendant argued, after cooperating and testifying at various trials against former confederates, that the court should only look at his cooperation, and not at his lengthy criminal history or own involvement. The 9th sensibly held that first (1) a Rule 35 sentence requires the court to find that substantial assistance did in fact occur; but then (2) the court considers non-assistance 3553 factors. This can result in a sentence lesser, greater, or the same as if only the cooperation was considered. Although the defendant here lost his appeal, the principle established will help more than it hurts other defendants. Rule 35 is "Peppered" (after the Supreme Court case upholding consideration of post-sentence rehabilitation in a resentencing).

U.S. v. Beltran Valdez, No. 11-50117 (11-21-11) (Sessions, D.J., with Leavy and Wardlaw).

As trial approached, the court denied defendant's request for appointment of replacement counsel or to represent himself. He immediately sought appellate review. Interestingly, the 9th had never considered whether this could be an interlocutory appeal. The 2nd, 3rd, 4th and 8th had, and all held that the appellate court lacked jurisdiction. The issue could be reviewed after trial or conviction. The 9th fell in line, and found no jurisdiction. The defendant could not appeal a denial of his request for change of counsel.

Ortiz v. Uribe, No. 09-55264 (11-18-11) (Alarcon with O'Scannlain and Silverman).

The murder suspect, after waiving his Miranda rights, was ushered into an office in the sheriff's department, where he met a seemingly kind, motherly, and oh so empathetic polygraph examiner. They talked of many things, including nervousness, doing what was proper for the family, and the need for his version as opposed to only the co-defendant's. Lo and behold, there was no need for the polygraph after all, since he confessed to the shooting. The kindly examiner? A deputy sheriff. The petitioner challenged his confession, arguing that he was tricked, and his will overborne. No so, said the state courts; not so, said the district court; and the 9th affirmed the "not so," holding that the petitioner's will was not overborne; he was not forced to confession by moral overpowering; and that the tactics were acceptable. Oh yes, because of AEDPA, the state court's findings were to be given deference.

Case o' The Week: Mommy & Miranda - Ortiz, the Fifth Amendment, and Confessions

What could be more heartwarming than a maternal cop who assures a nervous young defendant that she "loves him," tells him that he reminds her of her own kids, warmly refers to him as a "young puppy," and assures him that she wants to hug him?

(Oh - did we mention that she also misleads him about being a cop while preparing him for a polygraph, and then elicits a murder confession that leads to his conviction?) Ortiz v. Uribe, 2011 WL 5607625 (9th Cir. Nov. 18, 2011), decision available here.


Players: Decision by Judge Alarcón.

Facts: Suspected of a homicide, eighteen-year old Ortiz voluntarily went to the sheriff’s for questioning. Id. at *1, *2. He waived his Miranda rights. Id. at *1. To support his claim of innocence Ortiz agreed to a polygraph. Id.

Detective Kathy Cardwell conducted the examination – but didn’t reveal to Ortiz that she was a sheriff. Id. When he admitted that he was nervous, Cardwell assured him she would help him get through. Id. Before the exam, she called Ortiz, “young puppy,” and “poor guy.” She compared Ortez to her own sons, “told him that she loved him, and offered him a hug.” Id. (emphasis added). She informed Ortiz that the “cops” couldn’t dictate the questions to her (not revealing that she was a cop,) and assured him “They [the cops] can’t have any say so in here, this is my world.” Id. “[D]o the right thing by [your] mom,” she urged, and by your “daughters and lady.” Id. After these instructions, and before the exam started, Ortiz confessed to the shooting. Id. at *2.

He was convicted in state court of, among other things, murder. The California appellate and Supreme Court denied his challenges to the use of his statements in trial, id., and the federal district court denied his habeas petition. Id. at *3.

Issue(s): “The question before this court is whether the California Court of Appeal’s decision was contrary to, or involved an unreasonable application of, clearly established Supreme Court law, or whether the court’s decision was based on an unreasonable determination of the facts in light of the evidence presented when the court determined that Ortiz’s will was not overborne when he confessed, based on the totality of the circumstances, including Ortiz’s claim that Detective Cardwell played a maternal role during the interview, concealed her identity as a police officer, allegedly made implicit promises that Ortiz would be given leniency, and appealed to his moral obligation to his family. Ortiz argues that his confession was involuntary because his will was overborne as a result of deceptive interrogation tactics.” Id. at *4.

Held: “[A] polygrapher’s empathic and parental questioning does not render a confession involuntary. We are persuaded that the undisputed evidence reflected in the record of the state trial court’s proceedings demonstrates that Detective Cardwell’s advice to Ortiz that he had to tell the truth to pass a polygraph examination, was not coercive. The California Court of Appeal’s conclusion that Detective Cardwell’s motherly or parental tone in preparing Ortiz for a polygraph examination did not violate Ortiz’s Fifth Amendment rights was not contrary to, and did not involve an unreasonable application of, clearly established Supreme Court law, and was not based on an unreasonable determination of the facts in light of the evidence presented.” Id. at *6.

Of Note: There’s little silver lining, in this dark cloud. Beyond its tolerance for an -- unusual -- interrogation technique (remember, Ortiz was just 18), the opinion isn’t bothered by the fact that Detective Caldwell ‘concealed the fact that she was a sworn officer and misled appellant into believing that she was not a police officer and that she was his ally rather than his adversary.” Id. at *6. “[T]his type of ‘deception,’” reassures Judge Alarcón, “is well within the range of permissible interrogation tactics necessary to secure a lawful confession by the police.” Id. at *6.

How to Use: Ortiz is a habeas case, and the Ninth is working under the extraordinarily deferential standards of AEDPA. It is conceivable that on a direct challenge, the facts of Ortiz could violate the Fifth – yet not rise to the level of AEDPA error. Hammer that distinction: the more Ortiz is confined to habeas law, the better.

For Further Reading: “[T]he current system of criminal law and enforcement (like too many of our citizens) has grown obese.” So observes Justice Stevens, in a fascinating N.Y.T. book review on our “Broken System of Criminal Justice,” available here.



"My Mom is a Deputy Sheriff" from http://images7.cafepress.com/image/28626857_125x125.png

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


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Second Chance Act Update

When Congress doubled the available pre-release community confinement in the Second Chance Act, federal defenders hoped to see significant easing of reentry, with earlier family reunification and community-based employment and treatment. These hopes have come to very little because the BOP has continued to follow informal rules that effectively limit pre-release community confinement to six months, rather than the twelve months now permitted under 18 U.S.C. § 3624(c). Because an Oregon judge struck down its first SCA regulation for violation of the Administrative Procedure Act, the BOP has submitted for comment the same regulation, again failing to put into effect the meaningful change called for by the statute. Linked here is the Federal Public and Community Defenders' comment calling for the BOP to follow the letter and the spirit of the pre-release community confinement provisions of the SCA. Comments are due by November 21, 2011.

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

Ceballos: Isn’t There A Right To A Ruling On A Sentencing Request Under Rule 32 And Due Process?

In the recent case of Ceballos, the Ninth Circuit appears to have degraded sentencing rights without considering its own precedents that protect those rights. Mr. Ceballos’s sentencing letter included a request for a judicial recommendation for designation to a facility close to his family, a recommendation that the designation statute – 18 U.S.C. § 3621(b) – requires the Bureau of Prisons to consider. Rule 32(i)(3)(B) requires that the sentencing court shall, for “any disputed portion of the pre-sentence report or other controverted matter,” rule on the question or determine that a ruling is unnecessary, a rule that requires “strict compliance” (Fernandez-Angulo, 897 F.3d at 1516; accord Houston, 217 F.3d at 1208). The sentencing judge simply did not rule on Mr. Ceballos’s request; then eight days later, the government and the defense jointly agreed the judgment should be amended to include the recommendation. The district judge, acting as if he had no discretion in the matter, denied the request: “It is the Bureau of Prisons’ responsibility for the housing of prison inmates. Mr. Ceballos should request his housing from the Bureau of Prisons.” And the Panel affirmed this non sequitur, claiming no jurisdiction to review.

This case needs a second look. Where the sentencing judge failed to rule initially on the designation request, the sentencing court should have jurisdiction under Rule 35 to correct “clear error.” Under both Rule 32 and due process, the failure to rule on a request for a judicial recommendation was erroneous. Mr. Ceballos unquestionably alerted the sentencing judge to his desire that the court make a ruling on his request, which § 3621(b) makes a relevant factor at sentencing. As the Ninth Circuit has stated, supported by Supreme Court authority, “The existence of discretion requires its exercise” (Miller, 722 F.2d at 565). Or as the Supreme Court said in Koon regarding sentencing discretion, “A district court by definition abuses its discretion when it makes an error of law” (518 U.S. at 100). Here, the sentencing judge failed to exercise discretion that Mr. Ceballos invoked. What could be easier or fairer than agreeing with the parties to correct the error by amending the judgment? Especially where, as a prior panel held in Rodriguez, the BOP is required to consider the factors enumerated in § 3621(b), including the recommendation of the sentencing judge, in determining the appropriate correctional facility.

The Ceballos opinion purports to be the first Ninth Circuit precedential opinion on § 3621(b) recommendations, although the Reynolds opinion addressed post-sentencing nunc pro tunc designations to achieve concurrent sentences. In finding that recommendations are not reviewable, the Panel relied on a series of out-of-circuit opinions involving actual court recommendations, which were made during sentencing hearings, that were supported by the record. In contrast, the Ceballos case involved a complete failure to rule. The other circuits’ holdings that the recommendations themselves did not present reviewable questions are far different from the complete failure to rule in Ceballos. In a final footnote, the Ceballos opinion stated that district courts have the authority “to make (or not make) non-binding recommendations to the Bureau of Prisons at any time – including but not limited to – during the sentencing colloquy.” However, the sentencing court does not have the option to fail to rule on a request for a recommendation, absent the findings required under Rule 32(i)(3)(B), especially where the prejudice from the lack of a recommendation can immediately affect the BOP’s initial placement of the prisoner.

Basic sentencing rules should require a decision on the merits. By allowing courts to ignore recommendation requests, the Panel trivialized the statutory instructions to the BOP in § 3621(b) and undermined sentencing advocacy regarding recommendations that, as described in our recent Guide to BOP advocacy available here, provide important means for ameliorating otherwise overly harsh sentencing. A ruling on the statutorily-based recommendation regarding designation is not optional. The judge must exercise discretion either for or against the request. If a recommendation is rejected on the merits, the sentencing judge should state simply why the recommendation was denied. An improper motive would certainly justify reversal, such as race or dislike for the defendant’s haircut. How about if – as it appears in Mr. Ceballos’s case – the judge does not believe the authority exists to make a recommendation? As the Supreme Court held in Rita, the sentencing court needs to provide a minimum amount of information to enable the reviewing court to determine that sentencing discretion was properly exercised (551 U.S. at 356-57). Where there is jurisdiction under 18 U.S.C. § 3742 to review a sentence “in violation of law” under Rule 32 or Rule 35 or the due process clause, a ruling on the merits with a minimal explanation is not asking too much.

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

Case o' The Week: Paez, Ikuta and the Chism Chasm - Fourth Amendment and Child Porn

Proposition: Intellectual honesty and vigorous application of Fourth Amendment principles is particularly important in child pornography cases. Because of the great stigma of these charges, illegal arrests and searches of innocent folks can wreak unique havoc on careers and lives.

Proposition Exhibit A: Todd Chism (left). Chism v. Washington State, 2011 WL 5304125 (9th Cir. Nov. 7, 2011) (Amend. & Ord. Denying Rehearing en banc), decision available here.


Players: Thoughtful decision by Judge Paez, joined by Judge B. Fletcher. Dissent by Judge Ikuta.

Facts: [Ed. Note: Legally irrelevant to this decision, but important in equity: these plaintiffs, Todd and Nicole Chism, were actually innocent of any of the child porn offenses discussed below. See article here.]

The Chisms, a married couple, appeal from an adverse summary judgment in a federal civil rights suit. The case started with tips to Washington cops reporting that child porn was uploaded onto two Yahoo! websites. Id. at *1. When cops traced the user information for the sites they found the first site was billed to “Mr. Nicole Chism,” with the registration address and billing information matched that of the Chisms. Id. The second site was billed to Mr. Nicole Chism, with no physical location but a credit card that traced back to the Chisms.

When the cops traced the IP addresses used to create the websites, they lead to other people not associated with the Chisms. Id. at *3. [It later turned out that the Chisms’ identities and credit cards had likely been hacked]. Id. at *9 fn. 13.

The cops got a search warrant, and in the affidavit (falsely) represented that Todd Chism had downloaded images: he hadn’t. Id. at *5. The affidavit also (falsely) represented that the Chisms’ credit card had been used to purchase child porn from the websites: it hadn’t. Id.

The affidavit omitted the fact that the IP addresses used to open the Yahoo! accounts were traced to people and residences other than the Chisms. Id. The searches (including a search of Todd Chism’s workplace) revealed nothing and the Chisms were never charged. Id. at *4.

Issue(s): “The Chisms argue that the officers violated their Fourth Amendment rights through judicial deception.” Id. at *5.

Held: “We are mindful that a letter-perfect affidavit is not essential. In this case, however, we do not believe that a reasonable magistrate judge would have issued the search warrant if she had been apprised of an accurate version of the evidence. We therefore hold that the affidavit’s false statements and omissions were material to the probable cause determination for the search warrants.” Id. at *9 (quotations and citation omitted). “[W]e reverse the district court's grant of summary judgment to the officers.” Id. at *11.

Of Note: Judge Ikuta’s pointed dissent helpfully points us to the valuable lessons of Judge Paez’s great decision. Id. at *11 (Ikuta, J., dissenting). As her dissent highlights, Chism is an important decision for Fourth Amendment in the context of child porn because it works through and distinguishes Gourde (that most-regrettable 2006 en banc decision). Id. at *8. See blog discussion of Gourde here. Fourth challenges in child porn cases will now be battles between Gourde and Chism – with Chism the defense touchstone.

How to Use: There are many important Chism principles for future Fourth fights. One of the most important is this: it is a material omission undermining a search warrant application if cops do not disclose that an IP address associated with child porn images is not associated with the physical address to be searched. Id. at *9. Put differently, if an IP address is associated with a physical address different than the physical address to be searched, that fact undermines probable cause and must be disclosed. Id. at *8.

Judge Ikuta bemoans this new “reverse proposition”: that a “lack of a match between an IP address associated with such images and the IP address of the defendant’s computer reduces probable cause of the defendant’s involvement.” Id. at *15 (Ikuta, J., dissenting) (emphases in original).

Happily, Judge Ikuta is in the minority and the case has now survived an en banc call: thanks to Chism, we now have another arrow in our Fourth Amendment quiver.

For Further Reading: Todd Chism, a Spokane Firefighter, also had his work computer searched because of this unlawful warrant and was arrested while the searches took place. For a video of Todd Chism discussing the case, see link here .

For a thoughtful discussion of the Chism decision, laying out the affidavit's misrepresentations and omissions in more detail, see blog entry here.



Image of Todd Chism from http://khq.images.worldnow.com/images/8243545_BG1.jpg Image of the Honorable Judge Sandra Ikuta from http://www.bmi.com/images/photoblog/2011/cache/photo_3_cordozamootcourt_bmi10-570x0.jpg

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



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U.S. v. Ceballos, No. 09-50502 (11-7-11) (Per curiam with Silverman, Wardlaw, and Sessions, D.J.)

The designation recommendation, and whether is can be appealed, is the subject of this appeal. After the hammer is dropped, the sentence imposed, the defendant sometimes asks the court to recommend a BOP designation. Sure, the court knows that it is BOP's call, but the recommendation is considered, and sometimes followed. Usually the judge intones that it is not binding, but recommends the institution, or region. Here, the defendant forgot to ask, and eight days later files a joint stipulation with the government to the court to revise the Judgment to state a recommendation for Southern California. On the joint stipulation, the court scrawls "denied" followed by saying it is BOP's responsibility and the defendant should ask BOP. The defendant had a 188-month sentence and his family was in Southern California. The defendant appealed this denial. The 9th held first that the court could not revise the judgment after the sentence. Second, and more important, and significantly, the 9th had no jurisdiction over the recommendation, or denial of recommendation. It is a decision for BOP, and that's that. The other circuits so agree. However, the 9th points out in footnote 2 that this decision does not deprive the court from making a non-binding recommendation.

Case o' The Week: Sanchez Sends a Memo -- Prosecutorial Misconduct in Closing Arguments

Why don’t we send a memo to all federal prosecutors, to all AUSAs in the Ninth Circuit —why not our nation while we’re at it? Send a memo to them and say, "dear prosecutors, this an argument that you cannot make in a criminal trial." United States v. Sanchez, 2011 WL 5149141 (9th Cir. Nov. 1, 2011), decision available here.

Players: Decision by Judge Pregerson (above left), joined by Judges Fisher and Berzon.

Facts: After a narcotics dog alerted on Sanchez’s car at the Mexican border, a search revealed 29 kilos of cocaine in hidden compartments. Id. at *1. Sanchez told an ICE agent he thought marijuana had been hidden in the car, asked the agent to “help him,” and explained that he wanted his family to be safe. Id. At trial Sanchez described the duress that a Mexican cartel had exerted on him to smuggle the drugs, threatening his family if he refused. Id. at *2.

In the rebuttal closing argument, the AUSA argued, “[W]hy don’t we send a memo to all drug traffickers, to all persons south of the border and in Imperial County and in California—why not our nation while we’re at it. Send a memo to them and say dear drug traffickers, when you hire someone to drive a load, tell them that they were forced to do it. Because even if they don’t say it at primary and secondary, they’ll get away with it if they just say their family was threatened. Because they don’t trust Mexican police, and they don’t think that the U.S. authorities can help them. Why don’t we do that?” Id. at *2.

Sanchez was convicted on both cocaine counts. Id.

Issue(s): “Arturo Sanchez appeals his convictions for importation and possession of cocaine. He asserts that the last statement made by the prosecution in its closing rebuttal argument rendered the trial unfair.” Id. at *1. “Sanchez contends that the ‘send a memo’ statement made by the prosecutor during his closing rebuttal was improper argument. Sanchez did not raise this objection before the district court. Thus, we review for plain error.” Id. at *2.

Held: “We hold that the prosecutor’s inflammatory remarks delivered at the end of his closing rebuttal argument were improper and prejudicial. We reverse Sanchez’s convictions and remand for a new trial.” Id. at *1.

Of Note: Any defense win from a prosecutorial misconduct challenge is welcome. A defense win, on plain error review – now that’s an opinion to add to a trial binder.

As is its wont, the government in Sanchez tries to salvage the conviction by hiding behind the general milk-toast jury instructions (“what the lawyers say is not evidence.”) Id. at *4. Judge Pregerson ain’t buying it: “curative instructions fail to neutralize the harm of improper statements by a prosecutor when they do not mention the specific statements of the prosecutor and are not given immediately after the damage is done.” Id. at *4 (quotations and citation omitted).

Sanchez is doubly important: as a thoughtful example of a great prosecutorial misconduct analysis, and as proof that plain error review, honestly undertaken, can still cost the government a conviction.

How to Use: What, exactly, was wrong with the prosecutor’s “send the memo” argument? An AUSA can’t urge a conviction to “protect community values, preserve civil order, or deter future lawbreaking.” Id. at *3 (quotations and citation omitted). An AUSA can’t comment on the “social ramifications of the jury’s reaching a verdict,” and it is “improper to make statements designed to appeal to the passions, fear, and vulnerabilities of the jury.” Id. (quotations and citations omitted). In Sanchez, the AUSA managed to hit all three of these forbidden arguments. Consider reviewing these verboten themes before a prosecutor’s closing argument, to tune one’s ear for potential objections.

For Further Reading: The Ninth’s loss was California’s gain, when Governor Brown nominated Goodwin Liu to the California Supreme Court. Having lost one great nominee to a state Supreme Court, President Obama has decided to steal back another. On November 2, President Obama nominated Arizona Supreme Court Vice-Chief Justice Andrew Hurwitz to the Ninth Circuit, to replace Judge Mary Schroeder (who is going senior status). See press release here.

How is Hurwitz on criminal law? Well, he argued the lead Apprendi death penalty case, Ring v. Arizona, before the Supreme Court on behalf of death row inmates – and won, 7-2! See Ring summary here.



Image of the Honorable Harry Pregerson fromhttp://extras.mnginteractive.com/live/media/site200/2010/0213/20100213__valentine_dc_02.JPG Image of the Honorable Justice Andrew Hurwitz from http://www.lawclecenter.com/uploads/authors/andrew_hurwitz_full.jpg



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


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U.S. v. Sanchez, No. 10-50192 (11-1-11) (Pregerson with Fisher and Berzon).

"Why don't we send a memo," said the AUSA in rebuttal argument, "to all drug traffickers" south of the border, indeed to everyone, that to get away with being caught as a courier, all they have to say is that their "family was threatened." Duress would be their acquittal ticket. Well, the 9th sent a published opinion that this was inflammatory, and prosecutorial misconduct. This required reversal, even under a plain error standard, because the prosecutor personalized the "send a message" argument with "send a memo" (Next? Send an e-mail or tweet?). The statement crossed the line, and went beyond fair response to defense argument. It was prejudicial because the defendant has said his family felt threatened when stopped, and the defendant had testified as part of his duress defense.