Saturday, March 31, 2012

Case o' Week: A Minor "Major" Sentencing Win - 924(c)s and Sentencing

Hon. John T. Noonan

NOONAN, Circuit Judge, concurring and dissenting:
I concur in the opinion of the court except as to the sentences of over 700 years. The court says, “No one could dispute that a sentence of almost 750 years is harsh.” No one would bother to characterize such a sentence as “harsh.” It is simply incapable of execution. 

No known human being has the capacity to live 700 years. No living human being is likely to live 700 years. On its face, the sentence is impossible to execute.

The United States asks us to affirm this sentence. It asks us to affirm a sentence that cannot be carried out. I do not believe that we should participate in this utterly empty gesture.

United States v. Major, 2012 WL 1001188, *9 (9th Cir. Mar. 27, 2012) (Noonan, J., concurring and dissenting), decision available here.

  Judge Noonan (above right) doesn't note in his dissent that Major actually gives these defendants a sentencing break: thirty-six months off of their sentences. Id.  

   They'll only serve 742 years, instead of 745.  Marcus Major's release date will be moved back to March 15, 2654. See BOP Inmate Locator, Release Date, Marcus Major, here.

Players: Decision by Judge Wallace, joined by Judge M. Smith. 

   Judge Noonan concurs and dissents.

Facts: Over eight months, armed robbers hit a string of Fresno and Madera retail stores. Id. at *1. Marcus Major and Jordan Huff were arrested while fleeing the scene of a liquor store and charged with over thirty counts of conspiracy, § 924(c) offenses, and other federal crimes. Id. They were convicted after trial. Id. 

The “use” of a gun during a felony is a Section 924(c) offense, and sentences vary depending on how the gun was "used." A “brandishing” § 924(c) conviction carries a 7-year mand-min, a “discharge” § 924(c) carries a 10-year mand-min, and when there is a second § 924(c) conviction that carries a 25-year mand-min. Id. at *7. 

Major and Huff were convicted of “brandishing” and “discharge” § 924(c)’s. When sentencing the district court started with “discharge” (10 years) then stacked 25 years for each additional § 924(c). Id. at *7. “Thus Major and Huff received sentences three years longer than they would have had the district court deemed a brandishing count to be the first conviction.” Id. 

Both men were sentenced to over 745 years. Id. at *1.

Issue(s): “[Appellants] argue that the district court erred in using a ‘discharging’ offense, rather than a ‘brandishing’ offense as the first conviction under section 924(c), resulting in sentences three years longer than if the district court had used a ‘brandishing’ offense as the first conviction.” Id. at *1.

Held: “Applying the rule of lenity, when the district court does not have sufficient information to determine the order in which the jury made determinations of guilty during jury deliberations on multiple counts under section 924(c), it must order the convictions so that the mandatory minimum sentence is minimized. In this case, application of the rule requires the district court to deem one of the brandishing counts, rather than a discharging count, to be the first conviction.” Id. at *9.

Of Note: The bottom line? Major gets a 742 year sentence, instead of 745. The absurdity of this sentence is not lost on dissenting Judge Noonan: “The United States asks us to affirm this sentence. It asks us to affirm a sentence that cannot be carried out. I do not believe that we should participate in this utterly empty gesture.” Id. at *9 (Noonan, J., dissenting).

How to Use: Major is worth a worried read for its FRE 404(b) holding. Id. at *2. In the trial of the retail store robberies, the government was permitted to introduce evidence of earlier home invasion robberies as 404(b) evidence. Id. Judge Wallace walks through the evidentiary value of the home invasion robberies, as they related to the“identity” of the retail store robbers. Id. He ties the two sets of robberies together with the ballistics on the guns used. Id. at *3. Judge Wallace concludes that the home invasion robberies were relevant to identity, “because a jury could reasonably assume that possession of the firearms did not change during the period between each crime.” Id. at *3. The decision is not a profound change in (fact-bound) FRE 404(b) law, but it is a worrisome new addition. Beware of Major and FRE 404(b) in cases involving uncharged offenses and ballistics – a dangerous mix for the defense.

For Further Reading: Read Frye and Lafler yet? These are important new Supreme Court decisions on the Sixth Amendment duties owed to our clients during the plea negotiation process. See SCOTUS blog here.  

Add Padilla to this mix (immigration advisement), and you’ve got a trio of opinions that stiffen our clients’ rights to make informed decisions. This is good. 

The decisions, however, make DOJ and district courts twitchy. Nationally, plans are brewing to expand court inquiries into attorney-client communications about deals – possibly treading on highly confidential ground. This is bad. 

Stave this off (or anticipate the trend) by revisiting that quaint old practice of conveying formal government offers to your clients, in writing, with an explanation of the offers’ pros and cons. After Frye and Lafler, seems imprudent to go to trial without such a letter in the file.

Image of the Honorable Judge John T. Noonan from

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


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Wednesday, March 28, 2012

Putting The Compassion Into “Compassionate Release” With A Little Help From Setser

Your client from years ago calls you with terrible news.....he has a terminal illness; his family suffered a tragedy; an injury or illness renders him no longer able to care for himself. You look through the statute book and see that Congress anticipated this type of issue. Under 18 U.S.C. § 3582(c)(1)(A), the sentencing judge has the authority to reduce the federal sentence at any time based on “extraordinary and compelling reasons.” Congress assigned to the Sentencing Commission the task of defining “extraordinary and compelling reasons,” including examples, in 28 U.S.C. § 994(t). The Bureau of Prisons (BOP) acts as the gatekeeper, filing a motion where such reasons exist, leaving to the sentencing judge the decision whether, considering all the factors under 18 U.S.C. § 3553(a), the motion should be granted. Great theory; horrible reality.

The BOP hardly ever files § 3582(c) motions and when it does, the standard is imminent death or what we call “the death rattle rule.” In about 15% of the cases where a motion is requested, the prisoner dies before the BOP makes its final decision. Although the Sentencing Commission has broadly defined “extraordinary and compelling reasons” in U.S.S.G. § 1B1.13, the BOP expressly refuses to implement the Commission’s standard in its so-called “compassionate release” program, as the Government Accountability Office confirmed in its February 2012 report at pages 25-26. Instead, the BOP violates its statutory mandate and the separation of powers by implementing the program through a regulation that only allows a motion to be filed where there are “particularly” “extraordinary and compelling reasons” – whatever that means – and only if the BOP decides the motion should be granted.

Every federal defense lawyer has the tools to challenge the BOP’s unlawful application of § 3582(c). Phillip Smith recently called AFPD Ruben Iñiguez from federal prison to say that, despite being told that his acute myelogenous leukemia would soon take his life, the BOP had repeatedly refused to file a § 3582(c) motion. Phillip wanted his sentencing judge to decide whether to reduce his 156-month sentence for half-an-ounce of meth to time served, since he only had 29 months left to serve and he suffered from a terminal illness. The defense filed a motion for reduction of sentence before the sentencing judge, asserting that the BOP was violating the statutes and due process by failing to apply the Sentencing Commission standard and by substituting its Executive Branch decision regarding the merits of the motion for the Judicial Branch discretion conferred by the statute and the separation of powers. Given the unconstitutional interference with judicial discretion, the sentencing judge had jurisdiction to address the § 3582(c) issue under 28 U.S.C. § 2255 and under the court’s ancillary authority from the original criminal case. Phillip’s initial motion and the supplement are linked here and here.

So this morning the Supreme Court just gave our § 3582(c) litigation a big boost in Setser. First, in holding that the power to run sentences concurrently or consecutively resided in the Judicial Branch, not the Bureau of Prisons, the Court rejected the BOP’s usurpation of sentencing authority: “But the Bureau is not charged with applying 3553(a).” Exactly. The BOP’s practice of only filing § 3582(c) motions that it believes should be granted now runs contrary to Supreme Court authority. But there’s more. During oral argument, the attorney defending the district court’s authority to order a federal sentence to run concurrently with a not-yet-imposed state sentence asserted that the federal court could review subsequent state court action through § 3582(c). Didn’t he realize that the BOP only allowed consideration of imminent death (see 21 Federal Sentencing Reporter 167 (February 2009))? Although the statute is nowhere in the briefing, the Setser opinion states, “[W]hen the district court’s failure to ‘anticipat[e] developments that take place after the first sentencing,’. . . produces unfairness to the defendant, the Act provides a mechanism for relief,” then sets out the text of § 3582(c)(1)(A). The BOP’s stingy reading of the statute is completely inconsistent with the Supreme Court’s broad reading, and the Court has added to the Sentencing Commission’s recognition of factors “other than, or in combination with” its listed factors that should now include subsequent state sentencing proceedings.

Phillip’s case ended well. After initial litigation, the BOP changed its mind and the Director filed a motion, which was immediately granted. Phillip was home the next day with his family, a little over two weeks after the initial filing. But we know with a prison population of 216,251 inmates, and the proper standard having never been applied, there are clients serving sentences who should be receiving second look consideration from their sentencing judge. We defenders need to advocate zealously for our clients to breath life into the second look statute where there are “extraordinary and compelling reasons” and to remove the ironic quotation marks from “compassionate release.” With any luck, the BOP will recognize that its limitations on second look resentencing under § 3582(c) are unlawful and bad public policy. By broadly providing sentencing judges the opportunity to recalibrate their sentences in light of “extraordinary and compelling reasons,” the BOP stops wasting taxpayer money on prisoners who no longer need to be incarcerated, and relieves federal prison over-crowding – currently at 137% of capacity – that creates dangers for both corrections officers and inmates, while making rehabilitative programs harder to implement.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
U.S. v. Major, No. 10-10147 (3-27-12) (Wallace and M. Smith with a concurrence and dissent by Noonan).

Defendant was convicted for a series of robberies under 18 U.S.C. 1951 and 924. Guns were used, and the sentences ran consecutively. Defendant was sentenced to 8955 months (746 years, and 3 months). On appeal, the 9th affirmed the convictions. It held that admission of 404(b) evidence as to even more robberies was not error because the evidence went to identity. Moreover, evidence of a jacket from a gang was also properly admitted. Defendant argued that the sentence was unduly harsh, but the 9th held that, given the crimes, the sentences were not unconstitutional as being cruel and unusual. There was a question as to whether the sentences ran consecutive to a brandishment or a discharge of a weapon. The verdict form did not indicate which gun charge came first (a discharge or brandishment). Under the rule of lenity, brandishment must be considered first. Hence, the other gun charges run after brandishment. The 9th rejected requiring verdict forms with either the most serious gun charge first or the least. The 9th leaves open ways to determine which gun count was found first by the jury. The defendant will still die in prison even after the resentencing. Noonan, in a strange dissent from the sentence, states that it should not be characterized as "harsh" as does the majority because it simply cannot be executed. No one lives that long. Noonan does not want to participate in this empty gesture.

U.S. v. Rodrigues, No. 11-15530 (3-27-12) (Trott with Goodwin and Murguia).

Defendant was a state director of a union. In entering insurance and dental contracts for the union's members, he insisted the providers include consultant fees. The consultants were family members who, as determined by the investigation, provided no consulting. Moreover, the money ended up with the defendant. He was convicted of numerous fraud and embezzlement, money laundering, and theft of honest servcies. The latter convictions had to be limited to bribes and kickbacks as required under Skilling. The jury instructions did not have this link or element. However, the error in these instructions were harmless. The evidence was overwhelming, and the convictions necessarily had to involve kickbacks. The convictions and sentence were confirmed.

Sunday, March 25, 2012

Case o' The Week: No Win for Nguyen, PC for Search Warrants

Tan Duc Nguyen
In Fort, the Ninth held that state cops working a state case were actually "federal law enforcement officers" for discovery purposes, if -- years later -- their state investigation  evolved into a federal prosecution. See generally blog entry here

In Nguyen, the Ninth considers a federal prosecution for obstructing justice, when a defendant lied to state cops investigating a state crime, that could have evolved into a federal voting prosecution -- but didn't. United States v. Nguyen, 2012 WL 874995 (9th Cir. Mar. 23, 2012), decision available here.

Another troubling prosecution, for those fond of the quaint old concept of limited federal criminal jurisdiction.

 Players: Decision by Judge Reinhardt, joined by Judge W. Fletcher and DJ Zouhary. 
Facts: Nguyen (above right) was a Republican Congressional candidate running against a Latina Democrat. Id. at *1. Mark Lam, an acquaintance of Nguyen’s, hired a mailing service to send 14,000 letters in the district, to newly-registered Democrat or “declined to state” voters with Hispanic surnames. Id. These letters, written in Spanish, warned that voter information was being collected and might be requested by anti-immigrant organizations. Id. The letter also warned that it was illegal for non-citizens to vote. Id.  

The letter sparked complaints; state agents interviewed Nguyen. Id. Nguyen admitted to having limited knowledge of the letter, but explained that Lam had sent it independently from the campaign. Id. 

A state agent got a search warrant for Nguyen’s home and campaign headquarters. The searches produced evidence that Nguyen was more involved with the letter than he had admitted to agents. Id. at *2. The State of California never charged Nguyen. Id. A year later, the feds brought charges for obstruction of justice, a violation of 18 USC § 1512(b)(3). Id. Nguyen lost a suppression motion and was convicted. Id.

Issue(s): “On appeal, Nguyen does not challenge the basis of his federal indictment, but solely the constitutionality of the warrant that was issued by the state magistrate in connection with the state investigation. . . . . We consider here only the one narrow question presented by Nguyen: Was there probable cause for the state magistrate to believe that a crime had been committed and that the search was likely to reveal evidence of that crime.” Id. at *2.

Held: “[W]e hold that the contents of the letter and the circumstances of its distribution were sufficient to allow the magistrate to conclude that there was a fair probability that the mailing constituted a violation of [the] California Election Code . . .  These facts created a fair probability that the distribution of the letter constituted an act of voter intimidation under California law, and provided a sufficient basis for the issuance of the warrant.” Id. at *5.

Of Note: Wait – what exactly was the federal crime here? Note that the State of California never charged Nguyen with anything, and the feds never charged Nguyen with violating a federal election law. Id. at *2. Instead, the federal charge was that Nguyen “tried to hinder or prevent information from getting to sources that may ultimately turn out to be a federal investigation [for voter intimidation under federal law]. . .” Id. at *2. 

Put differently, Nguyen is now serving federal time for not being honest with state agents that were investigating a state offense that may have turned into a federal voting prosecution – but didn't. 


This bizarre prosecution isn’t lost on this panel. The Court sua sponte “expresses no opinion as to whether the basis of Nguyen’s conviction -- his failure to disclose information regarding the mailing of the letter to a state investigator during the course of a state investigation --  would satisfy the elements of 18 USC § 1512(b)(3).” Id. at *2 & n.1. 

So why didn’t this panel tackle what seems to be the real core question of the case? Because it was a question that the defense didn’t ask: “[o]n appeal, Nguyen does not challenge the basis of his federal indictment.” Id. at *2.

How to Use: Nguyen is a defense loss, but is a useful primer on probable cause challenges to search warrants. Id. at *3. (Perhaps unfortunately), Nguyen’s only challenge on appeal was on whether there was sufficient PC to issue the warrant. Judge Reinhardt accordingly devotes much of the opinion to what probable cause means, and what cause is necessary for a search warrant to issue. Id. at *3-*4.  It is a good example of a very close reading of a warrant affidavit: the Court in Nguyen actually rejects two of the three theories that the state agent put forth in support of her search warrant application. Id. at *4. 

For better or worse, Nguyen is also worth a close read because it flags several hurdles that are good to know before mounting a PC challenge to a search warrant (e.g., a warrant can later be upheld as showing PC for a statute not identified in the application, id. at *3 & n.2, and the lack of a later state prosecution for the crime investigated doesn’t undermine PC as to the search warrant, id. at *5).
For Further Reading: Turns out the Ninth isn’t alone, with raised eyebrows on this federal prosecution. Juries weren’t big fans of the Nguyen case, either. The first federal prosecution ended in a mistrial. See article here. The second trial resulted in an acquittal on one obstruction of justice charge, with a conviction on the “trying to obstruct a probe” charge. See article here.

Image of Mr. Tan Duc Nguyen from

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


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Friday, March 23, 2012

U.S. v. Nguyen, No. 11-50061 (3-23-12)(Reinhardt with W. Fletcher and Zouhary, D.J.).

The defendant sent a letter when he was running for Congress as a Republican. The letter was sent to foreign-born registered voters with Hispanic surnames who were registered as Democrats or "decline to state." And what might that letter have said? Well, it raised the specter of investigation and implied the meaninglessness of voting. So much for a civics lesson. The defendant downplayed his involvement, but an investigation ensued, which led to a warrant being issued. No state charges were filed, but eventually he was indicted and convicted of a federal charge, obstruction of justice under 18 U.S.C. 1512(b)(3). This appeal focuses on the issuance of the warrant. The 9th held that the letter, with its implied threats and discouragement, did provide probable cause for the issuance of a warrant. The warrant led to a search of computers and offices, and disclosed a close connection between (surprise!) the defendant and the letter (via a mass mailing service). The 9th acknowledged that no state charges came from the search, but that the letter, read plainly, did provide probable cause to believe that interference with voters exercising their rights had occurred, or that infringement on the right to vote took place. That was all that was needed. The letter also did not violate the defendant's First Amendment rights as related to the warrant.

Sunday, March 18, 2012

Case o' The Week: 22, a Tad Too Few -- Ressam and Substantive Reasonableness Review

In an en banc opinion, the Ninth last week delivered a watershed sentencing decision that will control all future sentencing appeals in the Circuit.

(If the appeal involves recanting cooperating Algerian terrorists caught at the Canadian border). United States v. Ressam, 2012 WL 762986 (9th Cir. Mar. 12, 2012), decision available here.

Thomas Hillier II
Players: Righteous fight by Thomas Hillier, II, Fed. Public Defender W.D. Wa. Majority decision by Judge Clifton, joined by Judges Graber McKeown and Bybee. Concurrence by Judge Reinhardt, joined by Chief Judge Kozinski and Judge Wardlaw. Dissent by Judge Schroeder, joined by Judges Paez, Berzon, and Murguia.

Facts: Ressam, an Algerian terrorist, planned to blow-up LAX. Id. at *1-*2. He was caught at the Canadian border with a car full of explosives. Id. The trial resulted in a guilty verdict, and soon after Ressam began cooperating against other terrorists. Id. at *4. His cooperation was extensive: over 280 hours of trial testimony, depos, and debriefings. Id. at *5. After long confinement under tough conditions Ressam=s mental state deteriorated B he ultimately refused to continue to cooperate and recanted previous allegations. Id. at *6. After a tortured appellate procedural history, Ressam finally faced sentencing with a 65-life guideline range. Id. at *9. The experienced district judge B who had lived with the case twelve years B varied downwards to twenty-two years. Id. at *12. The court at sentencing conducted an extensive ' 3553(a) analysis and review of the cooperation efforts of Ressam. Id. at *12-*15.

Hon. Richard Clifton
Issue(s): AThe government appeals the sentence imposed by the district court upon  . . . Ressam . . . as substantively unreasonable.@ Id. at *1.

Held: ARecognizing the deference owed to the district court, it is our conclusion that the sentence imposed by the district court in this case was substantively unreasonable. We reach that conclusion after examining the 'totality of circumstances' as directed by Gall . . . and Carty.@ Id. at *8 (citations omitted).

Of Note: In a potent dissent, Judge Schroeder persuasively argues that A[t]he majority=s implicit assumption that terrorism is different, and must be treated differently . . . flies in the face of the congressionally sanctioned structure of sentencing that applies to terrorism as well as all other kinds of federal criminal offenses.@ Id. at *26. 

   Want an example? 

   In Ressam, a downward departure to one-third of the guideline range was Asubstantively unreasonable.@ Id. at *18. But just five months ago, in Fitch (a non-terrorism case), the Ninth upheld an upward departure over five times the guideline range (from four years to twenty-one years) as Asubstantively reasonable.@ See United States v. Fitch, 659 F.3d 788 (9th Cir. 2011), decision available here (2011); see generally blog here.

  ADeath is different@ B maybe, implicitly, terrorism is, too.

How to Use: Volumes will be written on Ressam, but here=s the bottom line: it is probably a one-off. 

Hon. Stephen Reinhardt
  With only four votes, Judge Clifton=s majority needed the additional votes of Judge Reinhardt's three concurring judges to reverse the district court's sentence. (Takes six to win an en banc).

   In an earlier opinion, Bradley, Judge Clifton himself clearly explained the limited precedential value of a fractured en banc decision: AThe plurality opinion has been joined by only five of the eleven judges on this limited en banc panel. Because that constitutes less than a majority of the panel, that opinion does not announce the law of the circuit. The precedential effect of this decision does not extend beyond the conclusions expressed in this separate opinion, which concurs in the judgment on more narrow grounds.@ Bradley v. Henry, 518 F.3d 657 (9th Cir. 2008) (ord. amend. and denying rh=g en banc), available here; see also blog here. 

  Bradley means that Judge Reinhardt=s concurrence is likely the only Atrue@ holding of Ressam. That concurrence emphasizes that Ressam is not the case "in which to establish general principles governing when 'substantive unreasonableness= will warrant vacating a sentence imposed by the district court.@ Id. at *27 (Reinhardt, J., concurring). Judge Reinhardt goes to great lengths to limit his concurrence to this case and these facts, for a Aforeign enemy terrorist.@ Id. at *30. In short, Judge Clifton=s long and thoughtful discussion of substantive reasonableness, id. at *16-*25,  B though interesting B is probably dicta given the extraordinarily narrow language of Judge Reinhardt=s concurrence.

For Further Reading: Prosecutors, Beware the Ides of March. On March 15, a court-ordered report on the Brady violations from the Alaska Stevens case was released. Over five-hundred pages long, the report is the result of a comprehensive two-year investigation. 

How profound were the Brady violations in Stevens? Bad enough to immediately spark new Brady reform legislation in the Senate. For a comprehensive review of the Stevens case and the need for Brady reform, with helpful summaries, links to the Stevens report, and to Senate Bill 2197, see NACDL=s great posting here

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

Image of Federal Public Defender Thomas Hillier from
Image of the Honorable Richard Clifton from
Image of the Honorable Stephen Reinhardt from
Image of the "Ides of March" from‑ides‑of‑march.jpg


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Saturday, March 17, 2012

Ode To Saint Patrick

As a child I wished I could find a way
To skip the joys of St. Patrick's Day:
Chauvinism rampant and coercing green,
To celebrate beer and Gaelic spleen.
That merry robed Pat, with uplifted truncheon,
He whacked scaly wildlife into extinction.
But history forced me to change my view,
To realize that I should celebrate too.
The Fifth Century was hard for a Romanized Celt,
Captured by bandits, into slavery dealt.
He labored, cold and hungry, in bondage pastoral,
Learning hard lessons how slavery's immoral.
Transformed to live a more spiritual way,
He heeded a voice: you must run away.
In his fugitive life, the dangers abounded,
Til by sea from Ireland at last he absconded.
In ravaged Gaul he developed his rough-hewn creed,
Then to Eire he returned to help people in need.
In a time when Druids played the executioner's song,
He taught capital sacrifice was morally wrong.
A lone voice against slavery, he sought abolition;
It would be centuries before others joined in his mission.
A non-violent warrior, injustice he fought,
To end the oppression that was Ireland's lot.
So to this man we should toast, esteem we should render,
To the patron saint of the public defender.

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

Image of St. Patrick from

Friday, March 16, 2012

Phillips v. Ornoski, No. 04-99005 (3-16-12) (Reinhardt with B. Fletcher; partial dissent by Kleinfeld).

In this capital petition, the 9th excoriates the prosecutor for wilfully misleading the jury and withholding evidence as to a special circumstance that may have impacted the death verdict. Although the "deceptive ruse" did not affect the guilt verdict, and the denial of the petitioner's claims related to them was affirmed, the 9th did vacate the death sentence. The issues revolved around what the motive was for the killing, and the hidden information were benefits received by the cooperating witness. Kleinfeld dissents from the sentence relief, arguing that it was harmless given the overwhelming evidence and the testimony of a surviving witness.

Wednesday, March 14, 2012

U.S. v. Del Toro-Barboza, No. 10-50487 (3-14-12) (Gould with Noonan and Ikuta).

In an appeal from bulk cash smuggling in violation of 31 U.S.C. 5332 and exporting money under 31 U.S.C. 5324, the 9th affirms the conviction and sentence. The defendants were caught with $500,000 in a box in the bed of their pick-up truck being driven to Mexico. Interesting that border agents just happened to look in the pick-up's bed, and pick out the one box among many. Cash? In the truck? Who knew? The prosecutor argued that the defendants did, and presented evidence of past trips, a cluster of calls from Mexico, and other circumstantial evidence. Ah, but the charges required specific intent, and did the government present enough evidence on that? Enough, held the 9th, to find that there was sufficient evidence, even if the reviewing court might have some doubt about the strength. The 9th did find that the two charges were multiplicitous, but did not violate double jeopardy because Congress did intend to punish twice the same conduct with different elements under Blockburger. The closing arguments were heated, and the prosecutor stated that the defense counsel played games, was like a Wizard of Oz, and so forth. The 9th did not find misconduct. Some arguments were in response to defense counsel's closing, and some were permissable. Trials can be hard fought, observed the 9th, and there may be some verbal cage fighting. The 9th let this go. The 9th found that jury instructions were not erroneous, and finally, the sentence was not unreasonable.

Tuesday, March 13, 2012

U.S. v. Ressam, No. 09-30000 (3-12-12) (en banc).

Sitting en banc, the 9th considers the 22-year sentence imposed upon the so-called "Millennium Bomber" and holds that it has "a definite and firm conviction" that the district court committed "clear error" in its sentence, and thus the sentence was "substantively unreasonable." The 9th engaged in a detailed analysis of the twists and turns of this case, with plea offers, counter-offers, offers to cooperate, cooperation, withdrawal from cooperation, self-representation, and various assessments of the value of cooperation he did provide. The 9th faulted the district court for its comparisons with other terrorism cases, and for its scant attention to the guidelines. It did value the familiarity of the court with this case, now some 12+ years old, and so remanded back to the court for a resentencing. Concurring, Reinhardt, with Wardlaw, caution that this is a unique case, and that it is difficult to develop general principles concerning "substantive unreasonableness." The highly contextual nature of substantive review of sentences, and the circumstances of this case, make it atypical. The concurrence believes the sentence must be vacated, but is cautious as to what markers are laid down for the future. Dissenting, Schroeder, joined by Paez, Berzon and Murguia, would defer to the district court and affirm the sentence as given. The dissent argues that the majority commits Gall error, and vacates the sentence because it disagrees with it.

Kudos to Tom Hillier, FPD of the W.Dist of Wa (Seattle) for his continued spirited representation. Back for resentencing.

U.S. v. King, No. 11-10182 (3-13-12) (Per curiam with Graber, Berzon and Tallman, and concurrences by Graber and Tallman).

The 9th affirms a search of a home based upon the defendant's probation condition specifically allowing warrantless searches with or without probable cause. Here, the defendant was supposedly linked to a shooting by various unreliable informants and/or witnesses. Reasonable suspicion was lacking. However, Baker, 658 F.3d 1050 (9th Cir. 2011) permitted the search of his room (via a questioning, overheard conversation with others, a fight among kids over a jacket, a Google search of an album cover, and a stop at one address that led to another) which yielded a shotgun possessed by this prohibited possessor. Graber, concurring, believes that Baker should be reconsidered in light of Supreme Court developments. Searches without even reasonable suspicion via a probation condition troubles her. Tallman, concurring, would affirm because to him reasonable suspicion was established by the various links between the shooting, witnesses, and connections to the defendant.

Saturday, March 10, 2012

Case o' The Week: Broaching the Breach - Whitney and Prosecutorial Breach of Plea Agreements

"The government's argument [on appeal] is disingenuous."

Expect good things to follow, when the analysis of an AUSA's breach of a plea agreement begins with that blunt assessment. United States v. Whitney, 2012 WL 718483, *4 (9th Cir. Mar. 7, 2012), decision available here.

Players: Decision by Judge Reinhardt, joined by Judges B. Fletcher and Tashima.

Facts: While incarcerated for another (similar) offense, Whitney filed false tax returns. Id. at *1. He was charged, then cooperated, and then ultimately pleaded guilty pursuant to a plea agreement. Id. 

  In the plea agreement the government pledged to recommend the low-end of the guideline range, and promised it wouldn’t use information from Whitney’s debrief. Id. The agreement permitted both parties to contest a role adjustment. Id. The PSR identified three inmates in the scheme, but failed to identify how Whitney "managed" others. Id. Nonetheless, Probation recommended the two-level upward adjustment, and a whopping upward departure to 87 months (double the guideline range). Id. at *2. 

   Whitney's defense counsel contested the role adjustment at sentencing. Id. The AUSA then recommended “the low end of the guidelines as we have obligated ourselves to do.” Id. She then argued for the +2 OL role adjustment, explaining that Whitney “supplied information to me during his debriefing session that put himself in a supervisory role, a two-level increase.” Id. 

 Defense counsel didn’t object to this argument. 

The district court found the role adjustment applied, and departed upwards to 87 months. Id.

Issue(s): “[Whitney] contends that the U.S. Attorney breached the parties’ plea agreement by disclosing admissions made by Whitney while cooperating with the government, and by urging imposition of a sentence above the low end of the Sentencing Guidelines.” Id. at *1.

Held: “Although the prosecutor uttered the requisite words by recommending a sentence at the low-end of the guidelines, her additional statements constituted an argument for a higher sentence, breached the government’s obligation to recommend a low-end Guideline sentence, and likely had an impact on the far-above-guideline sentence imposed  . . .  The prosecutor’s reference to inculpatory statements made by Whitney during the course of his cooperation bore on the applicability of the two-level sentencing enhancement as well and similarly constituted an obvious breach.” Id. at *4. “We hold that the breach of the plea agreement by the U.S. Attorney resulted in plain error that affected Whitney’s substantial rights.” Id. at *1.

Of Note: This would be a great breach decision in any context, but is a particularly potent case because Judge Reinhardt grants relief despite undertaking plain error review. Id. at *3. Olano plain error is that bane of the defense on appeal: a  four-part test that usually results in a government win. Id. at *3. Judge Reinhardt not only finds “plain” error in the breach -- he also explains that the breach affected Whitney’s substantial rights, id. at *5, and affected the fairness and integrity of the judiciary, id. at *6.  

Whitney make breaches even more dangerous for the government, because even if trial counsel fails to object the defendant can prevail -- on plain error – on appeal. The remedy? Specific performance and a different district judge on remand! Id. at *9.

How to Use: Whitney also reverses the sentence because insufficient facts supported the leadership role enhancement. Id. at *1. It is an equally valuable decision on that issue; Judge Reinhardt carefully explains the necessary "level of control" to support this adjustment – facts not found in Whitney. Id. at *7-*8. 

Footnote six is of special interest – the Court there eviscerates the government’s argument that 1993 amendments to the guidelines altered the showing necessary for a leadership role. Id. at 7 & n.6. Read and rely on Whitney when fighting leadership adjustments.
 For Further Reading: President Carter appointed the three judges on this panel: Judges Reinhardt, B. Fletcher, and Tashima. It is, sadly, increasingly rare to see a three-judge panel of Carter appointees – even this Whitney panel features two senior Ninth Circuit judges (Judges B. Fletcher and Tashima).

For a very interesting discussion of the unusually large Carter “cohort” of Ninth judges and their tremendous impact on this Circuit, see Susan B. Haire, Judicial Selection and Decisionmaking in the Ninth Circuit, 48 AZLR 267 (2006). 

 Ed. Note: An astute reader clarified that Judge Tashima was indeed appointed by President Carter -- but to the district court, not to the Ninth Circuit. Judge Tashima was appointed to the Ninth Circuit by President Clinton.

Trailer still of "Breach" from
Portrait of President Jimmy Carter from

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


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Thursday, March 08, 2012

U.S. v. Whitney, No. 10-10118 (3-7-12) (Reinhardt with B. Fletcher and Tashima).

A deal was struck between the government and the defendant. At sentencing, the prosecutor breached explicitly and implicitly some provisions. Specifically, the prosecutor disclosed information in a debriefing that was agreed to remain confidential; and an argument about criminal history supported an upward departure. Here, in fraud case, the guideline range was 41 to 51 months. The court departed upward to 87 months, after finding an organizer adjustment, on the basis of under representation of criminal history. The 9th held that plea agreements are contracts, and the breaking of an agreed term is a violation. The 9th found that indeed promises made were broken. Moreover, the court even erred in a guideline determination, finding no evidence to support an adjustment for the defendant being an organizer. The case is remanded for resentencing before a new judge.

Wednesday, March 07, 2012

U.S. v. Loughner, No. 11-10339 (3-5-12) (Bybee, concurrence by Wallace, dissent by Berzon).

In a number of appeals arising from the involuntary pretrial medication of the defendant (the Tucson shootings), the 9th affirms the district court's decisions, holding that the doctors at FCI-Springfield know best. The opinion overviews the legal standards for involuntary medication, precedent (Harper, Riggins, and Sell), the procedures at issue, and findings. Parsing all the claims, the opinion finds that due process was afforded as to both substance and procedure in determining that involuntary medication was medically appropriate, and no other alternatives were as effective. The opinion did pause as to whether the defendant, under the procedure in place, had someone actually representing his interests, but nonetheless found that the staff representative was sufficient to satisfy due process. The bottom line is that the district court's finding that there was a substantial probability that the defendant could be restored to competency in the foreseeable future was supported by evidence and not clear error. Wallace, concurring, took issue with even raising this point, and concurred in the rest. Berzon, dissenting, bemoaned the abdication of judicial determination as to the appropriateness of the involuntary medication, the melding of various standards for pretrial and post-trial, and the following of due process.

U.S. v. Lequire, No. 11-10066 (3-5-12) (Silverman with Tashima and Adelman, D.J.).

Remember when we learned the elements of larceny, robbery, and embezzlement in Crim Law? Remember when the professor shrugged and said that was common law, and in modern penal codes, we are all guilty of something so it doesn't matter. Well, it does, at least here, when a treasurer of an insurance agency is caught using the premiums collected by the agency not to pay the insurance company's fees, but for other stuff, like personal expenses for the owner, and former Congressman (Renzi). It isn't embezzlement, with which he was prosecuted, because the funds were not "in trust." There was a fiduciary duty, but the use, and misuse, of the premiums were not embezzlement because they were not entrusted to the defendant. Under long-standing Arizona law, the contract between the agency and the insurance company, allowing commingling, only required monthly payments, which, if late, accrued interest. This created a creditor-debtor relationship, not a trust. An element of embezzlement was missing. A judgment of acquittal was required.

Sunday, March 04, 2012

Case o' The Week: Pitch Dark & White - Competency in Federal Court

A defendant is convinced he can kill his attorney from heaven, that defense counsel forged a legal treatise on a computer and re-attached the book's cover as part of a conspiracy for conviction, and is inexplicably fixated on an insignificant event that took place with a sheriff's deputy years before trial. 

Competent to face charges carrying a life sentence?

Competent enough. United States v. White, 2012 WL 639291 (9th Cir. Feb. 29, 2012), decision available here.

Players: Hard-fought appeal by NorCal comrades George Boisseau and Dena Meierhenry. Decision by Judge Wallace (above left).

Facts: White and others were charged with RICO offenses, including murders, arising from the activities of the "Pitch Dark Family" gang. Id. at *1. In 2005 the district court held a competency hearing as to White. Id. White was shipped to FMC Butner for evaluation; BOP shrinks found him competent. Id.

White returned to the charging district and a second attorney was appointed. Id. Problems between White and counsel ensued; the defendant refused to meet with attorney 34 times in three months. Id. at *2. White was disruptive and angry when his request for third counsel was denied. Id. White’s defense counsel “advised the court that he believed White was competent but that White was choosing not to cooperate.” Id.

On the eve of the 2007 trial, counsel revealed that White threatened to have his car shot with armor-piercing ammo. Id. During trial, White lunged towards his attorneys and spit at them. Id. During trial, counsel revealed White’s threat to have counsel killed “even from heaven.” Id. at *3. White accused defense counsel of altering a legal book on a computer and then changing the cover, as part of a conspiracy to get him convicted. Id. White remained in court, without incident, for only four days of the twenty-five day trial. Id.

Issue(s): “White contends that the district court erred when it failed to hold a competency hearing, sua sponte, to determine whether he was competent to stand trial.” Id. at *1.

Held: “[T]he district judge did not abuse his discretion in not holding a second competency hearing sua sponte. Based on the evidence before the district judge, including more than four years’ experience with White, a reasonable judge in the district judge’s position would not necessarily have entertained a bona fide doubt as to whether White had the ability to understand the nature and object of the proceedings against him and had the ability to assist in his defense. Therefore, the decision not to order a second competency hearing was within the district court’s sound discretion, and that discretion was not abused.” Id. at *7.

Of Note: The real issue in White is the standard of review. When a trial court has not made an express finding of competency there is little deference: “appellate review is not limited by either the abuse of discretion or clearly erroneous standard.” Id. at *4. 

When there has been a competency finding, however, “the decision whether to hold a second or subsequent competency hearing rests in the trial judge’s sound discretion.” Id. at *4. In other words, once the trial court has found competency, decisions on whether to have subsequent competency hearings are reviewed for abuse of discretion. 

Moreover, this first competency “finding” need not come after an evidentiary hearing. Here Judge Wallace characterizes the district court's brief order -- after the Butner evaluation -- as a competency "finding" (although there was no evidentiary hearing). Id. That first finding of competency by the trial court then pushed this appeal into the difficult abuse of discretion standard.

How to Use: It is bad form to armchair-quarterback a defense attorney who had such a tough client. Nonetheless, it is worth noting that suggesting a client is malingering doesn’t help a competency appeal. Here defense counsel directly opined about White’s competency, explaining, “I agree with the state doctors and federal doctors, he is competent to go to trial. I feel he’s choosing not to cooperate.” Id. at *5. Judge Wallace relies frequently on that concession in White, to defeat the defense's competency arguments on appeal.

   Was that defense concession really necessary? A mere, “I acknowledge the reports of the doctors, and submit the competency issue on the record” probably would have sufficed – and wouldn’t have come back to haunt the defense on the inevitable appeal of a life-sentence case.
For Further Reading: Federal Public Defenders are the real Federalist Society. We defend State Rights – the right to legalize marijuana; the right to define state-law crimes (like burglary), and the right to exonerate past crimes, if the state so chooses. We’ll be defending that last right soon: the Ninth just voted to take Yepez en banc. See order here. Yepez is a terrific J. Wardlaw decision honoring comity between the state and federal courts. 652 F.3d 1182 (9th Cir. 2011).

The San Diego Federal Defender will be defending Judge Wardlaw’s decision before the en banc Court, and fighting for the independence of the California judiciary.      

Image of Madison from 
Image of the Honorable John Clifford Wallace from

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


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Thursday, March 01, 2012

U.S. v. Bolivar, No. 11-30055 (2-29-12) (Graber with Tashima and Rawlinson).

The probation officer searched a probationer's apartment. Nothing unusual there. In looking through a closet, though, filled with clothing of the boyfriend, a backpack was seen. Inside was a sawed off shotgun that belonged to the boyfriend, a prohibited possessor. The boyfriend became the defendant here. He moved for suppression, arguing that the probation officer lacked probable cause to conduct a warrantless search of the backpack. After all, the probation officer had consent to search the apartment, but not belongings that were not the probationer's. The 9th affirmed the search. It held that the standard was one of "reasonable suspicion" and that it was met here. There is precedent that indicated that probable cause might be required in some searches, Motley v. Parks, 432 F.3d 1072 (9th Cir. 2005) (en banc), but that higher standard for warrantless searches of probationers related only to residences. Was that the actual home of the probationer? The "downstream" search afterwards was gauged by reasonable suspicion.

U.S. v. White, No. 07-10460 (2-29-12) (Wallace with M. Smith and Rakoff, Sr. D.J.).

Should the court have ordered a competency hearing sua sponte of the defendant in this RICO gang prosecution? The 9th holds that it was not an abuse of discretion for the court not to order such a hearing. The court had determined the defendant to be competent after an evaluation at FCI Butner. The court had ample time to observe the defendant and gather information from counsel and interact with the defendant. There was evidence of delusions, but on the whole, the court did not abuse its discretion. The defendant was on trial for serious charges, and this may have been a tactic. In addition, the court did not abuse its discretion in determining that the defendant could have assisted counsel if he chose.

Towery v. Brewer, No. 12-15381 (2-28-12) (per curiam by McKeown, Berzon and Rawlinson).

Editorial note: This is an Az FPD case

The State intends to execute petitioner on March 8th. In carrying out the execution, the State changed its protocol, when it discovered that one of the three drugs to be used was expired. Other changes also occurred, such as barring counsel from seeing the client after 9:00 PM the night before. The 9th expressed exasperation with the State, chastising the Az Department of Corrections for its shell game, and wondering whether it needed to step in to manage each execution given the lack of trust with the State. Alas, though, the 9th will give the State one more chance to follow its protocols, with modifications, as the Baze standards can be met, and other constitutional challenges fall short of what is required for the granting of a preliminary injunction.

Moormann v. Schriro, No. 08-99035 (2-27-12) (Schroeder with McKeown and Rawlinson).

Petitioner faced impending execution. He filed an 11th hour petition for stay and permission to file a successive habeas. He argues that his counsel effectively abandoned him by lack of effective representation. The 9th rejects the argument, finding that his counsel was active, and although there may be claims of serious negligence or ineffectiveness, there was not abandonment. The petitioner was executed on February 29, 2012, at 10:33 A.M.