Monday, April 30, 2012
Tuesday, April 24, 2012
Research & Writing Attorney Lynn Deffebach
After a stint with the Peace Corps in Samoa and in Washington, D.C., Lynn graduated from Lewis and Clark Law School. She found her way on to one of the Oregon Federal Public Defender trial teams, where her talents and energy quickly resulted in her being brought on full time. Her BOP work had its origins in the 1995 retroactive marijuana sentencing amendments. During group meetings, she began learning of the many ways statutes that were meant to assist prisoners and accelerate release were either under-utilized or completely neglected. For the next seventeen years, she litigated issues involving good time credits, access to community corrections, sentence reductions for drug treatment, and other prison issues in the district court, often to the Ninth Circuit, and twice to the Supreme Court. The picture here is Lynn on the steps of the Supreme Court after the oral argument in Clark v. Martinez, where she was part of the team that helped end indefinite detention of Mariel Cubans who had completed their sentences.
Lynn’s sophisticated approach to legal issues – especially statutory construction – made every team she worked on better, as did her qualities of compassion, courtesy, and humor. For lawyers she worked with and against, her intelligence and skill were inspiring, but it was her kindness and heart that provided a goal for the kind of attorneys we want to be. And she generously passed along her skills and talents by coaching high school students on Constitution teams. Shortly after she went to the Supreme Court the second time on the good time issue in Barber v. Thomas, she coached her Lincoln High students at nationals in D.C., including a team visit with Justice Sotomayor. Lynn loved to read, listen to music, and travel, but most of all to spend time with her nieces and nephews. We miss her.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
Monday, April 23, 2012
Sunday, April 22, 2012
Case o' The Week: FSA not All Cracked Up to Be -- Austin & Crack Resentencing for 11(c)(1)(C) Deals
His 11(c)(1)(C) plea agreement didn't refer to the guidelines (or didn't refer to them clearly enough). United States v. Austin, 2012 WL 1322204 (9th Cir. Apr. 18, 2012), decision available here.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
Friday, April 20, 2012
Cross v. Sisto, No. 08-17324 (4-18-12) (Bea with O'Scannlain and Graber).
Tuesday, April 17, 2012
Sunday, April 15, 2012
Case o' The Week: Nosal, No Sale, for Gov't -- - Nosal and the CFAA
|Chief Judge Alex Kozinski|
Players: Important win for appellate gurus Ted Sampsell Jones (argued), and Dennis Riordan. Decision by CJ Kozinski, joined by eight judges. Dissent by Judge Silverman, joined by Judge Tallman.
Facts: Nosal worked for an executive search firm. Id. at *1. He started a competing company, and convinced some of his former colleagues to download confidential files from his old firm, to use in his new one. Id. “The employees were authorized to access the database, but [the executive search firm] had a policy that forbade disclosing confidential information.” Id.
Nosal was indicted on many counts, including violations of the Computer Fraud and Abuse Act (CFAA), 18 USC § 1030. Id. Nosal challenged the CFAA counts, arguing that this wasn’t unauthorized access into a computer (hacking), but (if proved true), was theft of data by folks who had legitimate access to the files.
ND Cal District Judge Marilyn Patel agreed and dismissed the CFAA counts, holding that the CFAA prohibits hackers from accessing computer information without authorization – not theft by employees who are authorized to access the data. Id. A three-judge panel reversed. See generally blog description of three-judge panel decision, here.
The case went en banc.
Issue(s): “Computers have become an indispensable part of our daily lives. We use them for work; we use them for play. Some-times we use them for play at work. Many employers have adopted policies prohibiting the use of work computers for nonbusiness purposes. Does an employee who violates such a policy commit a federal crime? How about someone who violates the terms of service of a social networking website? This depends on how broadly we read the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030.” Id. at *1 (emphasis added).
Held: “We need not decide today whether Congress could base criminal liability on violations of a company or website’s computer use restrictions. Instead, we hold that the phrase ‘exceeds authorized access’ in the CFAA does not extend to violations of use restrictions. If Congress wants to incorporate misappropriation liability into the CFAA, it must speak more clearly.” Id. at *7.
Of Note: Gallons of ink will be spilled on Nosal and its impact on computer crimes – it is a very important case. Putting all that aside, read Nosal simply for the enjoyment of joyful legal writing. CJ Kozinski – a computer geek in judge’s clothing – gets it: the government’s interpretation of the CFAA would have criminalized logging on a work computer and “g-chatting with friends, playing games, shopping or watching sport hightlights.” Id. at *4.
Are you of a libertarian bend, prone to tuning into “Reason.TV” while at work? Id. Do you hit Ebay, while filling out timesheets and CJA vouchers? Id. at *5 &n.8. Visit Hulu and JDate? Id. Netflix and Pandora? Id. Do you describe yourself on Craigslist’s dating site as “talk dark and handsome,” when you’re really “short and homely?” Id. at *5. The Chief has no problem with you getting fired – but he and the Ninth don’t want you prosecuted for a federal crime.
How to Use: Fellow blogger Steve “Rule of Lenity” Sady loves Nosal - and you should too. CJ Kozinski explains that the rule is not only intended only to protect citizens, who need fair notice of criminal laws. Id. The Rule of Lenity also ensures “that Congress will have fair notice of what conduct its law criminalizes. We construe criminal statutes narrowly so that Congress will not unintentionally turn ordinary citizens into criminals.” Id. at *7. Great quotes for the defense bar’s favorite rule of construction.
For Further Reading: Are you making too much of a “simple little case,” bringing cutting-edge challenges on “silly issues” that make prosecutions slow and expensive? You must have been hanging out with Carl Gunn. For three decades Carl has been the government’s gadfly while serving in three Defender offices – you’ll remember him as the rebel who “gunned” for the Marshal’s shackling policy in L.A.. See Howard blog here.
Carl’s now semi-retired, and is maintaining a very interesting blog in his new private practice life. See "Hanging out with Carl" blog here. Hit Carl’s blog for a great essay on challenging “controlled substance” priors in federal court – it is a valuable new site to add to your RSS feed.
Image of the Honorable Chief Judge Alex Kozinski from http://3.bp.blogspot.com/_9AeuD2eCaOg/TFRLkko-2UI/AAAAAAAAAbY/0W8msHSL2lk/s1600/judge+alex+kozinski.jpg
"Reason TV" logo from http://www.reason.tv/
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
Friday, April 13, 2012
Wednesday, April 11, 2012
U.S. v. Nosal, No. 10-10038 (4-10-12) (en banc) (Kozinski for majority; Silverman with Tallman dissenting).
This opinion rejects a broad expansive reading of the Computer Fraud and Abuse Act (CFAA), 18 USC 1030, and adopts a narrow reading that criminalizes improper access (hacking) but not misuse. The case here concerned an employee who violated a company's confidential use of information policy to transfer trade information to a rival. The defendant argued that the CFAA targeted hackers, not individuals with authorized access. The 9th, here, agreed, widening a circuit split. Examining the statute, and language, the 9th construed the language to follow the intent against hackers or those who are not supposed to have access. The government's argument that it would never ever try to use this statute in an overbroad manner (but see money-laundering etc.) was unpersuasive and its reading of the language strained. The dissent concentrated not on the parade of horribles imagined by the majority, but focused on the facts in this case, where employees violated policy to take what was not their's and give valuable information to a rival. The dissent regards the statute as plainly written, and not strained, and written in an expansive manner to apply to situations like this.
Monday, April 09, 2012
Sunday, April 08, 2012
Case o' The Week: Breach to the Third -- Manzo II, Breach, IAC, and "Law of the Case"
Three, so far, in 2012 (and its only April!)
United States v. Jose Manzo, (Manzo II) 2012 U.S. App. LEXIS 6838 (Apr. 5, 2012), decision available here.
Players: Big win by ED WA AFPD Matthew Campbell. Decision by Judge Gould.
Facts: Manzo was charged with possession of precursors to manufacture meth, and with distribution of meth. Id. at *2. He went to trial on the manufacturing case and was found guilty; sentencing was continued pending resolution of the distribution case. Id.
Manzo then pleaded guilty pursuant to a plea agreement in the distribution case. Id. In the agreement the government agreed to offense level (OL) 34, and to a three-level reduction for acceptance. Id. at *2-*3.
Sentencing came, and Probation went south: the PSR grouped the two offenses, converted the precursor and meth to the marijuana equivalency as directed by the guidelines, added the marijuana amounts, and came up with offense level 38. Id. at *3. The PSR also refused to give Manzo acceptance, because he had gone to trial on the manufacturing case. Id.
At sentencing, the government abandoned the OL 34 recommendation and endorsed OL 38, and didn’t recommend the acceptance reduction. Id. at *5.
Defense counsel didn’t argue breach. Id.
Manzo – who expected no more than 14 years with his deal – got hammered with 24 at sentencing. Id. In a mem dispo (“Manzo I”) the Ninth upheld the sentence on direct appeal, under plain error review. Id. at *6.
1. IAC: “Manzo argues that his counsel gave him ineffective assistance of counsel.” Id. at *8.
2. Breach: “Manzo contends that the government breached its plea agreement with respect to the distribution sentence by merely agreeing before the district court that in light of the grouping, a base offense level of 38 was a correct calculation without recommending a base offense level of 34, per the agreement’s terms, and by not recommending a downward departure for Manzo’s acceptance of responsibility.” Id. at *11.
1. IAC: “We agree with Manzo that his counsel’s failure to anticipate that the offenses would be grouped for sentencing purposes and then advise Mazo to move to withdraw his agreement was constitutionally deficient.” Id. at *9.
2. Breach: “[T]he government had agreed that a base offense level of 34 would apply to Manzo’s sentence and promised to recommend a 3-level downward departure upon Manzo’s acceptance of responsibility. At the sentencing hearing, however, the government did neither and so breached the express terms of the plea agreement.” Id. at *13.
Of Note: The second time was a charm, for Manzo.
The present case was decided on habeas review. Three years ago, on direct appeal, a different three-judge panel of the Ninth held that the government didn’t breach. See Manzo I, 337 Fed. Appx. 643 (9th Cir. June 1, 2009) (mem.) (Per curiam, Judges Canby, Thompson and Callahan).
In this week’s habeas “Manzo II,” Judge Gould acknowledges the earlier mem dispo, but explains that his panel isn’t bound by that decision – quoting authority that explains that the “law of the case” doctrine doesn’t apply when “the first decision was clearly erroneous.” Manzo II, 2012 U.S. App. LEXIS 6838 at *13 & n.3 (citation omitted).
For appellate folks, footnote three is the most intriguing corner of this interesting case: a welcome tool to distinguish a “conclusory sentence” in a previous panel’s “summary disposition.” Id. at *13-*15 & n.3.
How to Use: “Don’t breach” seems a recent Ninth theme. See recent blogs on breach here. Judge Gould explains – yet again – what the government is to do when its plea agreement contains incorrect guideline calculations. Id. at *16. Turns out it isn’t that hard, to keep a promise: an AUSA is to acknowledge the correct guidelines, but argue for lower guidelines reflected in the negotiated deal. Id.
With three big Ninth breach decisions in the last four months, there’s certainly plenty of guidance on how to handle the situation . . . .
For Further Reading: Judge Gould, author of Manzo II, replaced Judge Beezer when he went senior in 1996. We’re sad to report that Judge Beezer passed away last week. For a review of some notable criminal-law decisions by Judge Beezer – including the original Carty case – see blog entries here.
Image of "Breach" from http://www.moviewallpaper.net/wpp/Ryan_Phillippe_in_Breach_Wallpaper_2_1024.jpg
Thursday, April 05, 2012
Although the opinion came out on April 5, it contained no cite or analysis of the two recent Supreme Court IAC plea cases, Frye and Cooper.
Congratulations to AFPD Matt Campbell, Federal Defenders of E. Wa. (Spokane).
Wednesday, April 04, 2012
Tuesday, April 03, 2012
On the Importance of George II - the Constitutionality of SORNA
|King George Augustus II|
Federal Defenders of Eastern Washington and Idaho
Judge Gleeson Explains All Regarding Unjust Implementation Of Mandatory Minimum Sentences
“This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences. In the substantial percentage of cases in which they apply, they produce a sentencing regime that is worse than the one the Sentencing Reform Act of 1984 was enacted to replace. They make opaque what that law was intended to make transparent. They strip criminal defendants of the due process rights we consider fundamental to our justice system. Most importantly, too many nonviolent, low-level, substance-abusing defendants like Jamel Dossie ‘lose their claim to a future’ – to borrow a phrase from Attorney General Eric H. Holder, Jr. – because lengthy mandatory prison terms sweep reasonable, innovative, and promising alternatives to incarceration off the table at sentencing.”
Judge Gleeson then provides a valuable lesson on the historical purposes of mandatory minimums, which have often been displaced by knee-jerk over-incarceration of relatively minor players. He also notes the importance of treatment based court programs that are snuffed by mandatory minimum sentences. His analysis and suggested limits on mandatory minimum discretion provide strong grounds for appreciation of those prosecutors who wield mandatory minimum power lightly, for presentation of reasons unreasonable prosecutors should modify their approaches, and for deep distrust of a sentencing system that has transferred unbridled and opaque sentencing power from the Judiciary to the Executive Branch.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon