Editorial note: This is an Az FPD case.

Towery v. Ryan, No. 12-15071 (2-27-12) (per curiam by Schroeder, Fisher and N. Smith).

Petitioner is under an Arizona warrant and facing execution on March 8. He argues that his counsel's failure to raise an Eddings-Tennard claim (no need for nexus between mitigation and act to consider mitigation) amounts to abandonment, citing Holland and Maples. The 9th holds that there was no abandonment by counsel. Sure, there could well be negligence, states the 9th, but it does not rise to severing the ties with client as required under an abandonment theory. Counsel just missed a key colorable claim, but he was still representing the client in pursuing other claims. Turning to the claim, the 9th, in dicta, finds it tenuous because the state courts seemingly did consider the presented mitigation. The 9th does note that: "One could question the wisdom of the Arizona Supreme Court's decision to accord Towery's evidence little or no weight." (emphasis in original; citations omitted)(p.24). Still, the decision was an individualized one, and thus not contrary to Supreme Court precedent.

Case o' The Week: 9th OK with Cali's Cheeky Swab - Haskell and Pre-Conviction DNA

"[W]e must base decisions not on dramatic Hollywood fantasies . . . but on concretely particularized facts developed in the cauldron of the adversary process and reduced to an accessible record." Haskell v. Harris, 2012 WL 589469, *12 (9th Cir. Feb. 23, 2012) (internal quotations and citation omitted).

Fair point by Haskell's author, Judge Milan Smith. Here's the concretely particularized facts:

 ● Political protestor arrested in California;

 ● Forced by cops to give DNA pre-conviction, or be charged with another crime;

 ● Protestor never actually charged with crime for which arrested --  and certainly never convicted of the crime;

 ● DNA nonetheless remains in national database and is used to investigate other crimes;

 ● Will cost the protestor a fortune to try to remove DNA from database, with no right to appointed counsel for task.

     (Maybe reality is more "dramatic" than a "Hollywood fantasy?")

Haskell v. Harris, 2012 WL 589469, *12 (9th Cir. Feb. 23, 2012),  decision available here.

Players: Decision by Judge Milan Smith, persuasive dissent by Judge W. Fletcher.

Facts: A 2004 Amendment to California’s DNA Act allows officers to collect a cheek-swab sample of anyone arrested for a felony offense. Id. at *1. (To emphasize - this sample is taken pre-conviction -- indeed, it is taken before charges are even brought). That DNA is stored in a database and is used to investigate other crimes. Id. at *2. It is a misdemeanor to refuse to give the sample. Id. at *2.

The Haskell civil plaintiffs were charged with felonies and were forced to give DNA samples. They were never convicted of the felonies for which they were arrested. Id. at *2. Three of the plaintiffs were political protestors who were never charged with any crime, or who had their charge dismissed. Id. at *16 -*17 (Fletcher W., J.,  dissenting).

Hon. Milan Smith

Plaintiffs brought a § 1983 class action alleging a violation of the Fourth Amendment and seeking a preliminary injunction. Id. at *2. The district court found no Fourth Amendment violation. Id. at *3.

Issue(s): “The constitutionality of California’s requirement that all felony arrestees provide DNA samples is a question of first impression for us.” Id. at *5.

“[We ask] whether California’s mandatory DNA collection requirement . . .  as applied to felony arrestees who have not been convicted, violates the Fourth Amendment.” Id. at *3.

“The question before us is whether California’s DNA collection requirement . . . is an unreasonable search. In line with the Constitution’s plain text, the touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security. . . We apply the ‘totality of the circumstances’ balancing test to determine whether a warrantless search is reasonable. Under the totality of the circumstances test, whether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id. at *4.

Held: “We assess the constitutionality of the 2004 Amendment by considering the ‘totality of the circumstances,’ balancing the arrestees’ privacy interests against the Government’s need for the DNA samples. Law enforcement officials collect a DNA sample from a buccal swab of the arrestee’s mouth, a de minimis intrusion that occurs only after a law enforcement officer determines there is probable cause to believe that the individual committed a felony. Law enforcement officers analyze only enough DNA information to identify the individual, making DNA collection substantially similar to fingerprinting, which law enforcement officials have used for decades to identify arrestees, without serious constitutional objection. Moreover, state and federal statutes impose significant criminal and civil penalties on persons who misuse DNA information. On the other side of the balance, DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects. After weighing these factors, we conclude that the Government’s compelling interests far outweigh arrestees’ privacy concerns. Thus, we hold that the 2004 Amendment does not violate the Fourth Amendment, and we affirm.” Id. at *1 (internal quotations and citations omitted).   

Of Note: In a compelling dissent Judge Fletcher tackles and rebuts each of Judge Smith’s arguments. Id. at *16 (Fletcher, W., J., dissenting). For Judge Fletcher (and for us), the Ninth’s 2009 Friedman case controls: he wonders how Haskell is possible without taking Friedman en banc. Id. at *20.

Hon.  William Fletcher

Judge Fletcher also makes a persuasive distinction between pre-conviction DNA taken for identification (constitutional), versus pre-conviction DNA taken for investigation (verboten). Id. at *22. California pre-conviction DNA, the dissent emphasizes, is plainly used for investigation. Id. at *24.

A case that cries out for en banc review.
                   
How to Use: “Special needs?” D.O.A. Id. at *4. Judge Smith summarily rejects the Fourth Amendment’s “special needs” doctrine in a brief paragraph, and the dissent doesn’t complain – Samson’s “totality” is ascendent. Worth a read re: special needs.
                     
For Further Reading: How spooky is DNA? In one case, a DNA sample from an incarcerated son lead to a “familial” match, and then to the father’s arrest for old offenses. See article here.

   But don’t worry: pre-conviction DNA isn’t used for familial searching (well, at least it is not used - quite - yet). See Haskell, id. at *19 (Fletcher, W., J., dissenting).



Image of "Gattaca" from http://s90.photobucket.com/albums/k241/rhythmonly/Criterion/?action=view&current=Gattaca.png&sort=ascending
Imange of the Honorable Milan Smith from http://www.willamette.edu/wucl/images/Milan_Smith.jpg
Image of the Honorable William Fletcher from http://www.ajcsanfrancisco.org/site/apps/nl/content2.asp?c=irKPIUPFIsE&b=856751&ct=1129507



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



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Case o' The Week: Show Me the Money - Yeung and Restitution Orders

There's "good enough for government work." 

And there is, sadly, "good enough for guideline calculations." See generally USSG §2B1.1(b)(1) comment. n.3. 

But as Judge Ikuta explains in a great new decision, "close enough" doesn't cut it when it comes to restitution orders. United States v. Judy Yeung, 2012 WL 432289 (9th Cir. Feb. 13, 2012), decision available here.

Players: Decision by Judge Ikuta. Laudable victory for ND Cal CJA Panel Attorney Martha Boersch.   

Facts: Yeung was convicted of mortgage fraud. Id. at *1. The schemes involved false info on mortgage applications, and straw buyers who ultimately defaulted on the loans. Id. at *1-*2.

After trial the district court held evidentiary hearings on restitution. Government witnesses did not identify the details of the home-sale transactions after default. Id. The court ordered restitution, using the same loss figures as it had for the guideline calculations. Id. at *3-*4.  The total restitution order was over $1.3 million – reflecting the government’s calculations of the outstanding principal balance of the loans minus proceeds recovered from the sale of the collateral (the homes). Id. at *3.

The restitution order did not make a finding of the value of the loan at the point the secondary-purchaser victim acquired it. Id. at *6. The order also did not make findings of the value of the property at the time the victim took possession. Id. at *7.

Issue(s): “On appeal, Yeung argues that the district court erred in all restitution orders.” Id. at *4.

Held: “First, the district court did not make a finding that [one of the secondary-market loan purchasers] paid an amount equal to the unpaid principal balance of the loans when purchasing the loans, and the government witness acknowledged that she did not have any information on that point.” Id. at *6. “In the absence of any evidence as to value of the loans at the time the victim acquired them, we cannot conclude that the district court’s restitutionary award was free from error.” Id. at *6.

 [In addition], “the court cannot rely on the subsequent sales price of the real property unless it provides reasons why that sales price reflects the value of the real property on the date [the property buyer] took control of the property.” Id. at *7. “Because the district court did not provide reasoning to explain its determination of loss for purposes of § 3663(b)(1)(B), and because the district court did not determine the value of the collateral at the time [the victim-buyer] took title, we must remand for the district court to recalculate and provide its reasoning for this award.” Id. at *8 (emphasis added).

Of Note: This is a big defense win, with a remand on the restitution calculations. Does this also mean that the guideline calculations – based on the same loss figures – were wrong?

   Nope. Id. at *7.

  As Judge Ikuta explains, an estimate of loss is appropriate under the Guidelines. For the guideline calculations (in contrast to restitution), intended loss is fair game, as is gain realized by the defendant. Id.; see also USSG §2B1.1(b)(1) comment. n.3

This is often a difficult concept for clients (and for many of us attorneys, to be honest): broad estimates of guideline loss are OK for sentencing, even if the restitution order is lower than these guideline-loss figures. Yeung is a good teaching tool to explain this counterintuitive concept.

How to Use: If you have a mortgage fraud case, sharpen your pencil, don your green eyeshade, and study Judge Ikuta’s restitution instructions in Yeung. Id. at *5-*6. She provides a step-by-step guide on calculating restitution in these daunting cases, explaining what to do when the ultimate victim bought the loan in the secondary market. Id. at *5. It is the clearest explanation around of a very complicated process: the decision takes pains to demand considerable accuracy in determining these restitution orders. Id. at *5. 

It is worth bearing in mind that while our mortgage fraud clients admittedly aren’t angels, no one thinks that these secondary-market firms are saints. Judge Ikuta is careful in Yeung to lay out a process that avoids any restitution windfall to the “victim” secondary loan markets.
                     
For Further Reading: Wow. When we blogged the tremendous Lopez-Avila prosecutorial-misconduct decision we urged a quick read, before the Az. USAO got the AUSA’s name removed. See previous blog here ("for further reading.")

No need to rush, now. In a remarkable order, Judge Bea flatly denied the government’s motion to redact the AUSA’s name. Judge Bea observes, “If federal prosecutors receive public credit for their good works—as they should—they should not be able to hide behind the shield of anonymity when they make serious mistakes.” See order here.

If you’ve ever been victim of prosecutorial misconduct, trust us – you want to read Judge's Bea order.



Image of the Honorable Sandra Ikuta from http://www.bmi.com/photos/entry/551405

Image of an accountant from http://phillygabe-n-terisa.blogspot.com/2011/11/things-im-thankful-for-day-12.html


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


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U.S. v. Yeung, No. 10-10381 (2-13-12) (Ikuta with Graber and Quist, D.J.).

To the point: courts must explain why they order certain restitution amounts to victims under the Mandatory Victims Restitution Act of 1996. In this case, involving mortgage fraud and "straw purchases" of homes and securities, the court ordered restitution to victim banks without really taking into account loss, or the value of the collateral property once recovered. Although the court faced complexities in various deals, the court should have justified its decisions as to two victims. The matter is remanded for recalculation and explanation.

Case o' The Week: The Kimsey Report - Berzon Rules Against Rules, Criminal Contempt

"In a colloquy ascribed to Sir Thomas More and his daughter: More's daughter urged her father to arrest someone, saying, 'Father, that man's bad.' More replied, 'There's no law against that.... [G]o he should if he was the Devil himself, until he broke the law!'

Here, the government may have proven that Kimsey is, if not the Devil, no saint. But it has failed to persuade us that Kimsey was in criminal contempt under the applicable federal statute."

     United States v. Kimsey, 2012 WL 386338, *11 (9th Cir. Feb. 8, 2012) (footnote omitted), decision available here.

    Kimsey's a keeper.

Players: Decision by Judge Berzon, joined by Judges Bybee and Sr. D.J. Graham. Big win by former Nevada Federal Defender Franny Forsman.   

Facts: A big, messy personal injury lawsuit in the Nevada federal district court spawned over 500 pleadings. Id. at *1. Plaintiff’s counsel finally withdrew. The plaintiff then filed awkward pro se motions –  for awhile. Id. Suddenly, however, while still proceeding pro se the plaintiff suddenly filed documents that were more legally sophisticated. Id. at *2. The civil defendants’ “ghost-busting” investigations, id., revealed these pleadings were in fact written by James Kimsey, a non-lawyer. Id. Kimsey was tried and convicted for criminal contempt, in violation of 18 USC § 402. Id. at *3. Central to the finding of guilt were Kimsey’s violations of the district’s local rules, which prohibit the unauthorized practice of law.  Id. at *4.

Issue(s): “Kimsey contends that he cannot be convicted under § 402 for violation of local rules.” Id. at *6.
           
Held: “We agree. We hold that § 402 does not permit convictions for criminal contempt for violations of standing rules of court.” Id. “[L]ocal court rules . .  do not constitute ‘rules’ within the meaning of § 402 and thus cannot serve as predicates for criminal convictions under that statute.” Id. at *11.

Of Note: Kimsey articulates a welcome new rule for the Circuit. Section 402 criminalizes contempt if a defendant willfully disobeys a “rule,” and that violation would be a crime under the law of any state. Id. at *6. Are local district “rules” what this old statute had in mind? Judge Berzon thinks not, and explains why in a beautifully-written decision. A century ago, when this statute was written, “rule” meant an order or decision of the court – not local “rules” as we think of them today. Id. at *8-*9. Moreover, punishing as contempt a violation of local rules would lead to absurd results: jail time for using the wrong font or incorrect margins, as dictated by local rule. Id. at *10. The Ninth now joins D.C. (and splits from the Seventh) in holding that violations of a court’s local rules cannot create § 402 liability. Id. at *7-*8.

How to Use: Kimsey is a go-to statutory interpretation case. Judge Berzon blows the dust off of the 1910 Black’s Law Dictionary to determine just what “rule” meant back when the statute was written. Id. at *8. “[N]oscutur a sociis . . .  a word is known by the company it keeps,” is one of the many handy principles of construction explained in the Court’s deconstruction of Section 402. Id. at *9.

   Another bon mot is Judge Berzon’s rejection of the precedential value of a previous Ninth Circuit case, dismissing that language as “unstated assumptions on non-litigated issues . . .” Id. at *7. (N.B.: This is valuable stuff for the defense, showing us how to properly characterize non-precedential language in previous decisions. Add to your list of notable quotes.) 

   Kimsey is classic Berzon: rigorous and careful analysis of the real precedential value (or lack thereof) of previous decisions, while evaluating the precise issue before her. See, e.g., United States v. Rodriguez-Preciado, 399 F.3d 1118, 1138 (9th Cir. 2005) (Berzon, J., dissenting and analyzing exact holding of Supreme Court’s plurality decision in Seibert). Holdings aside, Kimsey is worth a close read solely as an example of statutory analysis done right.
                     
For Further Reading: Franny Forsman argued Kimsey. She’s our hero. The former Nevada Federal Defender, Franny’s life has been as rich and complex as they come – a proud “old Hippie” who lived on a commune, writes fiction, headed a huge Defender’s office for many years, and argued before the Supremes. For an interesting article describing her remarkable career – and future plans – see here.

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


Image of "ghostbuster" from http://upload.wikimedia.org/wikipedia/en/thumb/e/ee/Ghostbusters_logo.svg/220px-Ghostbusters_logo.svg.png



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Farmer v. McDaniel, No. 10-99017 (2-17-12) (Bea with Trott and Pallmeyer).

The 9th affirms the denial of a habeas petition challenging a capital sentence on double jeopardy grounds. The petitioner had been condemned to death based on aggravators that the murder arose in the course of committing another felony. The court did not rule on other aggravators presented. The Nevada Supreme Court subsequently found use of such aggravators unconstitutional and vacated the death sentence. The state now seeks to sentence him to death using other aggravators. The 9th concludes that petitioner's double jeopardy rights would not be violated since the state was using different aggravators, which had not be ruled on or decided in the first death sentence.

U.S. v. Reyes-Bonilla, No. 50361 (2-6-12) (Goodwin with Wardlaw and Cogan, D.J.).

In a 1326 appeal, the defendant argues that his his prior removal hearing was fundamentally unfair, and violated his due process, because he did not have counsel nor did he understand the proceedings. The defendant was a Guatemalan undocumented alien when he was convicted of carjacking, which lead to the removal in 2001. In seeking relief in a collateral attack on a prior deportation or removal, there must be a violation of due process and prejudice. Here, the 9th holds that: (1) prejudice will not be presumed even when an alien is not advised of his right to counsel and did not waive this right; and (2) the defendant did not have a plausible or tenable claim to to relief in 2001. The holding reflects that to have prejudice from denial of advisement of counsel, there must be a basis for relief.

Case o' The Week: Sentencing Big Mac Attack - McGowan, Due Process, and Reliability of Evidence at Sentencing

Due process at sentencing -- like other beasts in cryptozoology -- is rumored to roam the Ninth Circuit, but is rarely seen and is almost never documented. 

     Until McGowan. United States v. McGowan, 2012 WL 233257 (9th Cir. Jan. 26, 2012), decision available here.

Players: Win by SF appellate gurus Dennis Riordan and Donald Horgan. Decision by Judge Reinhardt.

Facts: Robert "Big Mac" McGowan (above left), a prison guard, was charged with abusing prisoners and with conspiring to obstruct justice. Id. at *1. After the jury found him guilty, he moved for judgment of acquittal under Rule 29(c) – but did not move for a new trial under Rule 33. Id. The court granted the Rule 29 motion; the Ninth reversed after the government appealed. Id. On remand, McGowan filed a motion for new trial which (Rule 33), which was dismissed as untimely. Id.

At sentencing, the district court relied on allegations from a prison inmate and imposed a guideline sentence of 51 months. Id. at *2. The inmate, Seevers, alleged that McGowan had snorted meth with him and had smuggled meth into prison. Id. at *5. Some of those allegations were made under oath, in a different prosecution. Id. at *5.

Issue(s): “McGowan . . .  contends that he was deprived of due process when the district judge relied on a prisoner inmate’s unreliable allegations at sentencing.” Id. at *1.

Held: “Here, the district judge abused his discretion in finding that Seevers’ claims were reliable.” Id. at *5. “Seever’s allegations were made under oath but absent any other procedural mechanism that would ensure that a witness with the incentive to lie was telling the truth. They were not only inconsistent with McGowan’s denials, but were unsupported by any other evidence. They therefore lacked the requisite minimal indicium of reliability to serve as a basis for McGowan’s sentence.” Id. at *6 (internal quotations and citations omitted).

Of Note: McGowan is startlingly good. It rejects the sentencing testimony of a government witness, who made allegations under oath. It speculates that the snitch received benefits for the testimony – but there’s no evidence of that in the case. Id. at *6. The government's evidence in McGowan wasn’t second or third-hand hearsay repeated to some DEA agent; some of the allegations were direct observations made by the witness on the stand during the trial of another guard. Id. at *5. And the snitch’s story was substantiated by his ability to describe McGowan’s personal residence, where the pair had allegedly snorted meth together. Id. at *5.  

  Contrast McGowan to the lousy evidence from drug snitches routinely offered and relied upon at federal sentencing: double-hearsay, not under oath, well-documented benefits and incentives to lie, with no corroborating facts. From the trenches, the government’s evidence rejected in McGowan looks far better than the unreliable dross often tolerated at sentencing hearings in district court – making McGowan a potent defense tool for sentencing litigation.

How to Use: McGowan gives an important trial-practice tip. “We hold that a judge granting a motion for acquittal may conditionally rule on a motion for a new trial only if the defendant has made such a motion. The district judge did not err in failing to conditionally grant McGowan a new trial, as McGowan did not make a motion requesting one.” Id. at *3.

 Put differently, when the guilty verdict comes in make both a Rule 29 motion for judgment of acquittal, and a Rule 33 motion for new trial. If you win the former, you’ll want to still have the latter in your pocket when the Ninth gets the government’s appeal of your Rule 29 victory. Note, however, that there may be times when a defendant does not want to simultaneously make a Rule 33 motion. Judge Reinhardt lays those strategic considerations out for us in depth. Id. at *4-*5 (describing a better-prepared prosecutor on the second prosecution, a fear that a judge will compromise away from Rule 29 towards a Rule 33 if given the chance, or worries about shifting to another judge). Those considerations are worth a close read, before the trial gets underway.
                     
For Further Reading: Thoughtful district judges have wondered why there aren’t more evidentiary hearings at sentencing, given these known reliability issues. The answer is powerful guideline disincentives for the defendant. If a defendant is found to have falsely contested a sentencing fact, he or she could lose three offense levels of acceptance and risk an additional two levels for obstruction.  See USSG § 3E1.1 (acceptance); USSG 3C1.1 (obstruction), comment. n.4(H) ("providing materially false information to a probation officer in respect to a presentence or other investigation for the court").

  This makes contesting facts in the PSR a high-risk proposition for the defense. Is fighting a level or two specific offense characteristic worth risking losing up to five offense levels, when it will be the defendant's word against a cop's? When the fact-finder is also the sentencing judge? When the government's burden of proof is (usually) only by a preponderance of the evidence?

   By contrast, if a snitch or “victim” lies at a sentencing hearing, the government just shrugs and foregoes its sentencing enhancement. There is no disincentive for the government: no corresponding reduction in the defendant's base guideline range if the government's witness is found to have falsely contested a sentencing fact.

   For a thoughtful explanation of this unfair sentencing structure -- and the institutional costs of this imbalance -- see Margareth Etienne, Parity, Disparity, and Adversariality: First Principles of Sentencing, 58 Stan. L. Rev. 309, 319, available here.  


Image of Robert McGowan from http://www.pacovilla.com/?page_id=41496


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



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U.S. v. Noriega-Perez, No. 10-50501 (2-1-12) (Tallman with Fernandez; partial dissent by Moore, D.J.).

It is hard to find renters now a-days. In this case, with two houses close to the Mexico border, the defendant rented to alien smuggling organizations (the rent was paid on time). Convicted, he argued on appeal that there was insufficient evidence of the alienage of material witnesses named in the indictment but who did not testify; eight did. The 9th held there was sufficient evidence of alienage. The witnesses who testified were situated in the same place, under the same conditions, as the ones who did not. An inference is permitted. The 9th also held that there was sufficient evidence of cross-border crossing, even if some of the witnesses were stopped at another location prior. Moore dissented from this portion concerning those witnesses who stopped at other locations. He argues that there has to be a terminus, and the nexus may well be stretched to an extent it would not support the cross border entry, but rather a harboring conviction.