Friday, June 29, 2012

U.S. v. Thomas, No. 11-30120 (6-29-12)(Bea with Gould and Bybee).
The magistrate found that police could detect an odor of marijuana 450 feet or so away, through filtration systems and other smells. This led to the denial of a Franks motion. The district court shook its head at the police's credibility, reversed the magistrate's findings and recommendations, and suppressed. It did so without a de novo or any evidentiary hearing. The government appealed, arguing that the district court had to conduct a de novo hearing when it reversed a magistrate's credibility determinations in favor of the government. After all, a defendant would get a de novo hearing in an appeal from a magistrate's findings. The 9th did not hold that the government had to have a de novo hearing on reversed credibility findings, but it came pretty close. A hearing had to be held so long as the testimony was material and made a difference. If the testimony did not make a difference to the legal ruling, then a hearing was not necessary. The 9th stated that it strongly encouraged and expected that hearings would be held except in limited legal conclusions. As the 9th wrote in vacating and remanding: "We disagree with both of those categorical options, and today we adopt a middle ground, though our rule counsels strongly in favor of holding a de novo hearing. We agree with the defendants that the government does not have an unqualified right to a de novo evidentiary hearing whenever a district judge reverses a magistrate judge’s credibility determinations in a way adverse to the government. But we also agree with the government that its interest in the integrity and accuracy of judicial proceedings—which, after all, similarly underlie a defendant’s due process rights to such a de novo hearing— will often counsel in favor of such a hearing. Thus, we hold that a district court abuses its discretion when it reverses a magistrate judge’s credibility determinations, made after receiving live testimony and favorable to the government, without viewing key demeanor evidence, with one exception: where the district judge finds that the magistrate judge’s credibility determinations had no legally sufficient evidentiary basis, so that, were they jury determinations, judgment as a matter of law would issue for the defendant."

Wednesday, June 27, 2012

U.S. v. Gonzalez, No. 11-10380 (6-27-12) (Tallman with Gould and Bea)
Venue can be a tricky thing.  It is especially difficult where offenses span time, people, and districts.  Here, the defendant was convicted of a conspiracy; one that was prosecuted in the Northern District of California.  Yet, the only connection to that district were two telephone calls placed by a CI to the defendant outside of the district. The drug delivery took place in another district.  Yet, in affirming the conviction, the 9th reaffirms that venue is proper where any portion or act of the offense occurs.  Quoting the Second Circuit, the 9th observes that a telephone call sends a voice and propels the scheme into the person receiving the call. It is like a ripple.  Here, the calls went forth, and snared the defendant who was elsewhere.  The conspiracy's venue is proper in the ND Ca.
(Editorial note: Yet, it is increasingly worrisome with the reach of the Internet).
U.S. v. Meredith, No. 05-50452 (6-26-12) (M. Smith with Kleinfeld and Marbley, Sr. D.J.).
Crime can be taxing, especially if the defendants are engaged in schemes to avoid paying state and federal taxes. This was the case here. The defendants were charged and convicted of conspiracy, fraud, passport fraud, false representation of Social Security numbers, and failure to file income taxes. They ran a series of seminars and lectures, and published books, on how to avoid paying taxes through various schemes. The 9th rejected their First Amendment challenge, reasoning that talking about how bad the income tax is one thing; actively setting up measures to hide income was another. Their actions were not just advocacy. The 9th also rejected the contention that the jury instructions were erroneous, and that the conspiracy was flawed because one of the objects was the commission of misdemeanor offenses. There was sufficient evidence to support the convictions. The 9th did remand for resentencing on one defendant for an issue on restitution.

Tuesday, June 26, 2012

Mackey v. Hoffman, No. 11-15115 (6-25-12)(Garbis, Sr. D.J., with Alarcon and Silverman)
Some of our clients have abandonment issues. The abandonment issue here involves post-conviction relief under 2254. The petitioner hired a lawyer to pursue state post-conviction. The case then went to federal habeas, but the lawyer was doing it by this time pro bono.  He informed the petitioner that he needed more money, or he could not proceed further. The state filed a response, and the lawyer did nothing. He did send letters saying that the petitioner needed to get his parents to pay more money. The lawyer also told the client that he supposedly could not do more. The petition was dismissed. The petitioner inquired of the district court about the status of his case. In a hearing, the court remarked that it was concerned with abandonment. However, ultimately, the court felt it could not grant relief from a final judgment under Fed R Crim P 60(b). The 9th reversed and remanded. It held that a court could use 60(b) to vacate, and that there was no mandatory prohibition against it. The issue here was not a mistake by counsel but abandonment by counsel.

Saturday, June 23, 2012

Case o' The Week: A Wing and a Prayer, Supervised Release Violations

Imagine, if you will, a judicial opinion that narrates hypothetical serial murders in the voice of Rod Serling. 

You have now entered . . . the Ninth Circuit Court of Appeals. United States v. Wing, 2012 WL 2354447 (9th Cir. June 21, 2012), decision available here.

Players: Decision by DJ Moskowitz. Big win for Montana AFPD John Rhodes. Interesting dissent by Judge Tallman.

Facts: Michelle Wing was convicted of embezzlement in Montana and received a term of supervised release following prison. Id. at *1. After Wing left custody, violations ensued. A Form 12 resulted in revocation, more prison and a second term of supervised release. Id. 

Five months later, Wing was indicted in Washington for different crimes, based on conduct that predated the second term of supervised release. Id.  

The Montana probation officer filed a new Form 12, seeking to violate the second term of supervised release because of the Washington crimes (again, crimes that predated the imposition of the second term of supervised release, but that took place during her first term of supervised release). Id. Wing unsuccessfully challenged the district court’s jurisdiction to violate the second term of supervised release, based on conduct that predated the imposition of the term. Id. at *2.

Issue(s): “The issue before us is whether, under 18 U.S.C. § 3583, a district court has jurisdiction to revoke a future term of supervised release based upon newly discovered violations of conditions of a past term of supervised release. We have not located any reported decisions addressing this issue under the current version of the statute.” Id. at *2.

Held:In this matter of first impression, we conclude that a district court lacks jurisdiction under 18 U.S.C. § 3583(e)(3) to revoke a term of supervised release based on newly discovered violations of a previously revoked term of supervised release . . . .” Id. at *1. 

“In 18 U.S.C. § 3583, Congress has established a scheme where separate and distinct terms of supervised release may be imposed upon a repeat offender of supervised release conditions. Each term has its own conditions as well as its own beginning and end (either by termination or revocation). This statutory scheme leads us to conclude that once a term of supervised release has been revoked, a later-discovered violation of a condition of that term cannot form the basis of a revocation of a subsequent term of supervised release.” Id. at *3.

Of Note: We disagree with the legal thrust of the dissent, but commend it to your reading for its Rod Serling narration. Id. at *12 (Tallman, J. dissenting). We quote: 

Wing will now begin an iniquitous journey through space and time. Her companion on this journey will be fraud. Her route, embezzlement. That’s a signpost up ahead; her next stop: The Twilight Zone.


Judge Tallman complains that “for villains like Wing, [gaps in supervised release] present a metaphysical netherworld constrained only by the outer limits of criminal imagination.” Id. 

 The dissent ends when the “screen transitions to the setting of our final scene.” Id. at *17. “Patty” (a fictional female federal inmate) strangles two other prisoners and leaves the third in a coma after a savage beating. Id. Patty’s federal “parole officer” [presumably a Probation Officer?] is helpless to save society from Patty’s reign of terror. Id.; but see id. at *10 & n.8 (observation in majority decision that because Prison Patty is actually not on supervised release while incarcerated hypothesized murders could never be supervised release violations).

How to Use: Judge Moskowitz’s majority decision lacks the dissent’s sense of drama. Read it nonetheless: it is a beautiful legal analysis of supervised release generally and the true meaning of the controlling statutes. Id. at *3. Wing is a very good primer for supervised release overall, outside of this narrow legal issue.      
For Further Reading: Finished reading the 1,573 pages of crim-law decisions that came down last week? Any correlation with the schedules of the law clerks, stressing over August departure dates and being pushed to clear their plates? For an interesting insight into the Ninth’s clerkship mix – and hiring schedules – see blog here.

Image of "The Twilight Zone" from 
Image of  Peppermint Patty from

Steven Kalar, Senior Litigator ND Cal FPD. Website at


Labels: , ,

Friday, June 22, 2012

U.S. v. Rivera, No. 10-50426 (6-22-12) (Berzon with Reinhardt and Kennelly, D.J.).
The Sixth Amendment right to a public trial was violated when the district court excluded the defendant's family members from the court. The court did so because he did not want children to be used as "props" and he expressed a preference for a cleared empty courtroom. Sentencing is part of a trial, and the public has a right to be present, especially family and friends of the defendant. The sentence is vacated and remanded before a new judge.

Johnson v. Uribe, No. 11-55187 (6-22-12) (Marbley, D.J., with Kleinfeld and M. Smith).
Petitioner got relief from the district court on the basis of IAC. The court 's remedy was to order sentencing within the statutory maximum. On appeal, petitioner argues that his conviction should be vacated as well, and the case returned to the pre-plea stage of proceedings. The 9th agrees. The performance of appointed counsel was totally inadequate, from the initial stage, and the IAC permeates every stage.

U.S. v. Suarez, No. 10-10393 (6-22-12) (Tashima with Silverman and Adelman, D.J.)
This case involves what constitutes a "final prior conviction." It has tremendous implications because a prior conviction can be used to enhance sentences. Here, the prior was for possession of drugs BUT the defendant had taken advantage of a California drug diversion program under 1000.3. If a defendant completes the program, which the defendant did here, the charge is dismissed. he has no right to appeal while in the program, nor is he sentenced. The court found this as a prior, and under 21 USC 851, the sentence was a mandatory minimum 20 years. the 9th vacated and remanded for resentencing. The 9th concludes that to qualify as a prior final conviction under 841(b)(1)(A), a guilty plea must either "(1) ripen into a final judgment; or (2) result in a legally cognizable sentence." Under the state program, the plea to possession did not meet this standard. The 9th distinguishes Dickerson, and concludes that other circuits never really considered the "finality" aspect of a program. As for the defendant's conviction for conspiracy, the 9th affirmed, holding that an acquittal on the possession with intent charges was not fatally inconsistent. The analysis is to look at whether evidence supported the verdict, in the light most favorable to the government, and it did so here.

U.S. v. Collins, No. 10-50344 (6-22-12) (Marbley, D.J., with Kleinfeld and M. Smith).
The 9th vacated and remanded a SR residency requirement for a defendant who plead to a count of possessing child pornography. The court had simply imposed the requirement, which had strict and extreme conditions of where he could live, without an analysis of whether it was reasonable. The conditions imposed requirements of not living near certain sites, and had the effect of driving the defendant out of any urban environment. The 9th held that there was procedural error, and that the court had to explain why it was imposing such a requirement, whether it was necessary, and assess its reasonableness. The 9th also held that the standard of review for a lifetime term of SR was preponderance and not "clear and convincing."
U.S. v. Mak, No. 08-50148 (6-21-12) (M. Smith with Kleinfeld and B. Fletcher).
This is an appeal from a conviction for violating the Arms Export Control Act (AECA). The 9th affirms. Jury issues revolved around the definition of technical data, which was covered by AECA, and specific intent. The 9th found the jury instructions were not in error. In addition, AECA was not unconstitutionally vague. Employing an intermediate level of scrutiny, the 9th concluded that AECA was neither a prior restraint nor unconstitutionally vague.

U.S. v. Ramos-Medina, No. 09-50408 (6-21-12) (Clifton with Farris and Ikuta).
This is an appeal from a 1326 conviction. The defendant was convicted after a full blown jury trial. He argues on appeal that the prior burglary conviction was not an agg felony and that he should have received acceptance of responsibility as he admitted the elements when apprehended, and he raised a legal issue. The 9th reaffirmed precedent that a conviction for first degree burglary under California Penal Code 459 was a crime of violence under 18 USC 16(b) and therefore under 8 USC 1101(a)(43)(F). Park, 649 F.3d at 1179-80. Turning to the Guidelines calculation for an agg felony, which may differ, the 9th has held that a conviction for burglary under 459 did not categorically fall within the burglary generic definition. This is so because the statute prohibits an "unlawful or unprivileged entry." Aguila-Montes, 655 F.3d at 944. However, applying a modified categorical approach, which means looking at the plea colloquy or plea transcript, the defendant affirmed the admissions in the probation report that he entered a dwelling without permission or privilege and stole jewelry. Thus, the +16 was affirmed. Lastly, the 9th affirmed the sentencing court's decision not to give acceptance of responsibility. The court did not look solely at whether the defendant went to trial, but examined all his conduct.

U.S. v. Wing, No. 11-30017 (6-21-12) (Moskowitz, D.J., with McKeown; dissent by Tallman).
In considering whether a court can revoke a second term of SR on the basis of newly discovered violations of the first term, the 9th concludes the court lacks jurisdiction under 18 USC 3583(e)(3). The 9th concludes that a future term of SR cannot be violated for past terms. In reaching this conclusion, the 9th undertakes an extensive review of SR's statutory scheme. This is also an issue of first impression. Dissenting, Tallman parodies the opening of the long ago Twilight Zone television program, arguing that there now exists a fifth dimension that leaves unpunished corruption, wickedness, and immorality. And that is just the opening paragraph! The parody continues, with Tallman arguing that gaps are created where bad acts can go unpunished so long as another SR term starts. Rather, SR should be taken as a whole, and can be revoked for various acts when discovered.

Congratulations to AFPD John Rhodes of the Montana FPD (Missoula).

Thursday, June 21, 2012

U.S. v. Marquez-Lobos, No. 10-10470 (6-19-12) (M. Smith with Noonan and McKeown).
Does the 9th kidnap the categorical approach in a generic sense? Yes, when it comes to the Arizona kidnapping statute.  In a 1326 case, the defendant received a +16 adjustment for a prior Arizona conviction of kidnapping.  The court found it was a crime of violence.  The defendant appealed and argued that the state statute was overbroad.  The 9th holds that ARS 13-1304 can lack the element of the use of force in that certain kidnappings can occur without the use of force or threat of force (i.e. the victim is under 18 or incompetent and the custodian or parent does not agree with the restraint).  However, although the state statute can have a missing force element, the statute nonetheless meets the generic definition of kidnapping, which includes a nefarious purpose or a restraint or restriction on movement.  The 9th does not narrow the generic definition of kidnapping set forth in prior precedent, and holds that it qualifies as a "crime of violence."

U.S. v. Becker, No. 11-30250 (6-19-12) (Gould with Bybee and Bea).
Does the 9th find that a court knows a SORNA requirement when it sees it?  Yes, in that the defendant, pleading to receipt of obscene matters, acknowledged that some of the matters he received were child pornography.  The court later, in a SR revocation, reimposed a SORNA registration condition.  On appeal, the defendant argued that the court's failure to specifically make findings that the offense was SORNA eligible was plain error.  Not so, concludes the 9th.  The defendant admitted to the charge, admitted that the materials were child porn, and that under the statute, the court was mandated to impose a SORNA requirement.  Moreover, the court had the discretionary power to impose it.

Peck v. Thomas, No. 11-35283 96-19-12) (Bybee with W. Fletcher and Fisher).
Petitioners fail in their APA challenge to the BOP's regulations barring inmates with certain current or past convictions from early release eligibility.  The BOP, finds the 9th, acted rationally and within its authority in limiting eligibility to the programs that result in early release.

Marrero v. Ives, No. 09-16053 (6-19-12) (Graber with Schroeder and Thomas).
The "actual innocence" exception to 2255 procedural bars did not apply here to a petitioner arguing that he was actually innocent of a non-capital offense (interference by threats with interstate commerce and firearms) and that he was not a "career offender" under the Guidelines.  The 9th finds he failed on both.  He did not allege sufficient facts to establish an actual innocence claim, and the actual innocence gateway does not apply to non-capital sentencing enhancements.

Tuesday, June 19, 2012

U.S. v. Elkins, No. 11-30135 (6-14-12)(Callahan with Nelson and Tashima).
When one is a child, one acts as a child; and when one becomes an adult, well, if he committed a state juvenile sex offense, he has to register under SORNA. The defendant here, 18 years ago, when he was 14, committed a sex molestation. He served his sentence and was ordered to register. Many years later, after having registered, he moved to California. The warrant issued from Washington and he was charged under SORNA. The district court found SORNA punitive in this instance, and violative of the state juvenile protections, and so dismissed. The government appealed. The 9th reverses and remands. It held that under the Supreme Court's test in Smith v. Doe, 538 US 84 (2003), the requiring registration for backward looking offenses was not ex post facto, and the requirement was not punitive as it was regulatory. The 9th's precedent in Juvenile I and Juvenile II reasons that Congress, in requiring SORNA, could have trumped the juvenile protections. Here though it is not a federal juvenile matter but a state one, and under the state conviction, the juvenile had to register, have his photo submitted and posted an drive fingerprints. There is no conflict. Further, there is evidence sufficient to possibly sow that the juvenile knew of his SORNA obligations. The indictment's dismissal is reversed and remanded.

Briggs v. Grounds, No. 10-16683 (6-15-12)(Tallman with Graber; dissent by Berzon).
In this habeas under AEDPA, the 9th affirms the dismissal of the petition. The petition, serving 265 years for various sex offenses against two children, argued that the state committed a Batson violation by striking African American prospective jurors for pre-textual reasons. The 9th gives deterrence to the state courts in finding rational neutral reasons amidst a welter of questionable justifications. Berzon, dissenting, argues that the overwhelming sense is a deliberate effort to strike African American prospective jurors.

Sunday, June 17, 2012

Case o' The Week: The Kings (and Queens) of Leon - Grant, Fourth Amendment and PC for Warrants

The Hon. Marsha Berzon

Like grandparents nostalgic for the old days, we’ve touted the role of the great cohort of Carter appointees in making the Ninth the first among Circuits. See blog here
The Clinton crew, however, can also hold their own. United States v. Grant III, 2012 WL 2086588, (9th Cir. June 11, 2012), decision available here.

Players: Decision by Judge Berzon, joined by Judges Thomas and Wardlaw. Great win by CD Cal AFPD Matthew Larsen.

Facts: A witness reported a tall, thin black man fled from where a victim was fatally shot. Id. at *1. Detective Ryan Thompson and others used cell phone data and GPS tracking to develops leads on two suspects: two half-brothers associated with a gang. Id. at *2-*3. (One brother fit the vague description of the shooter). Id. at *2. Searches of residences associated with these suspects were unproductive. Id. at *4. 

Nearly nine months after the murder, Detective Thompson ultimately got a search warrant for the home of the father of one of the suspects: Grant. Id. at *4. When that search produced guns, Grant was charged with being a felon in possession. Id. (Note that none of the guns found had anything to do with the homicide, and Grant never was a suspect). Grant challenged the PC for the search warrant, lost in the district court, and entered a conditional plea. Id. at *4.

Issue(s): “We consider in this case whether the basis for the search that resulted in Grant’s conviction was so attenuated as to require suppression of firearms evidence found in the search. The district court held that there was indeed a lack of probable cause to issue the warrant authorizing the search, but invoked the good faith reliance doctrine of United States v. Leon, 468 U.S. 897 (1984), to permit use of the evidence.” Id. at *1.

Held: “We agree as to probable cause but not as to the application of the Leon doctrine, and so reverse.” Id.

Of Note: This opinion is a textbook example of the proper examination of probable cause underlying a search warrant. To broadly summarize a true tangle of facts, this cop had PC to tie one brother to a murder weapon, and probable cause to link the other brother to Grant’s residence. Id. *5-*9. Judge Berzon correctly demands both together: a showing of PC that evidence of a crime will be found, and that the evidence will be found in the place searched. Id. Crime – evidence – place: each of those probable cause showings must exist together for a search warrant to issue. Grant is our scripture for that PC trinity.

How to Use: As good as the PC discussion is, Grant’s real legacy will be its strict analysis of that hated Leon “good faith” exception. Judge Berzon explains that the “good faith” exception doesn’t work if an affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id. at *9 (quoting United States v. Leon, 468 U.S. 897, 923 (1984). That’s just the case in Grant, and the Court carefully explains why while comparing other Ninth and Supreme Court “good faith” decisions – including the very recent Supreme Court opinion in Messerschmidt v.Millender, 132 S. Ct. 1235 (2012). Id. at *9. This opinion is the new go-to case when battling the government’s “good faith” dodge – when you hear Leon, think Grant.
For Further Reading: What do Judges Berzon, Thomas, and Wardlaw have in common (besides this terrific Fourth Amendment decision?) All were appointed to the Ninth by President Clinton. And, more recently, all have been bandied about as SCOTUS candidates. See articles here and here

While we’d hate to lose them from the Ninth, for the good of the Republic we’ll grudgingly let them join The Nine. Here’s hoping for a trifecta of smooth Senate confirmations in 2013 (or ’14, or ’15, or ’16).

Image of the Hon. Marsha Berzon from

Steven Kalar, Senior Litigator ND Cal FPD. Website at


Labels: , , , , , , , ,

Tuesday, June 12, 2012

U.S. v. Berry, No. 10-10361 (6-12-12)(Rawlinson with Hatter, Sr. D.J.,; partial dissent by Tashima).
The defendnat was charged and convicted of using SSA disability payments for his disabled son for other purposes.  The statute, 42 USC 408(a)(5)(social security fraud) requires the act be done wilfully.  The court's instructions conflated "knowingly" and "willfully."  Although the district court erred when it instructed the jury regarding the definition of “willfully,” the error was harmless beyond a reasonable doubt. The evidence showed that the defendnat knew his responsibilities, was so informed, and acted with a culpable state of mind.  Because the SSA application Berry signed was part of a routine administrative process unrelated to litigation, the district court did not abuse its discretion in admitting the computer-generated form into evidence.  There was no confrontation problem because the SSA records were administrative and not prepared for trial.  They are public records, and are not akin to police reports.  As for prosecutorial error, although the prosecutor made misstatements and errors, especially in arguing  that the defendant had admitted some elements and in mentioning his stories, the district court properly corralled the prosecutor’s improper comments and instructed the jury appropriately prior to its deliberations.  No  reversible error occurred.  There was sufficient evidence for a rational juror to find the defendant guilty beyond a reasonable doubt, and the district court committed no error when it denied Berry’s motion for a judgment of acquittal. Finally, in view of its plain language, 42 U.S.C. § 408(a)(5) is not vague or unconstitutional.  Tashima partially dissented.  He would reverse on two grounds: (1) the jury instructions did possibly mislead the jury.  The wrong jury instructions were prejudicial given the evidence.  (2) The admission of the SSA records violated the confronbtation clause.  In the first, there was no evdience presented that the defendnat was actually told, or that he mentioned, that putting the disability payments in his sister's account was wrong.  Indeed, most of the money was still there ($41,000+). The records or forms were not signed by the defendant nor was there any record of him admitting that what he did was wrong.  He might not have been told.  Second, the SSA records had warnings about perjury and criminal prosecution that  were directly tied to possible prosecution.  The records were ultimately meant for trial, and so fell into the Melendez-Diaz and Bullcoming line of cases.  The majority disagreed, reasoning that the SSA information was for publci records.

Monday, June 11, 2012

U.S. v. Grant, No. 11-50036 (6-11-12)(Berzon with Thomas and Wardlaw).
Who is buried in Grant's tomb?  The answer to which should be sufficient to have probable cause to see if Grant is, indeed, buried there.  To reply that there is possibly a weapon that was used in a homicide nine months earlier, which may have a tangential relationship to the sons of the occupant of the site is something else.  Yes, that is the situation here, except instead of Grant's tomb, we have Grant's home.  The weapon was a firearm.  In searching the home, the police did not find the firearm they were looking for, but two others, and because the defendant was a prohibited possessor (prior felony), he was charged.  The district court found no probable cause, but did find a Leon reliance exception. (468 US 897(1984)).  The 9th agreed that probable cause was lacking, and also held that the Leon "good faith" exception was not met.  Law enforcement should have known that probable cause was lacking, and there was no basis for believing that it existed.  The 9th concluded that the officers put down everything they knew about the homicide, and the firearm, but had no real tangible connection to Grant or Grant's home except wild speculation.  They wanted to search because, well, why not?  Something might be there.  That is not good enough.  The evdience must be suppressed.

Congratulations to AFPD Matt Lawson of the FPD Office, California Central (Los Angeles).
Thompson v. Lea, No. 09-55753 (6-7-12) (Gould with Pregerson; dissent by Tallman).
It was an open and shut case, and then it was a re-opened and shut case.  This saves the petition from being time barred.  The state petitioner raised Blakely issues before the  California Supreme Court.  It denied review, but indicated that it could reconsider in light of a pending Supreme Court case reviewing the issue (Cunningham).  After Cunningham came out, the state supreme court looked at the issue in petitioner's appeal, and again denied.  The 9th holds that this second look was a reopening, and therefore the time tolled and began running when denied.  Tallman dissented, arguing that the second look was not really a re-opening, but just a reaffirmance.

U.S. v. Jingles, No. 08-15634 (6-8-12) (Wallace with Nelson and Bea).
The petitioner is facing an aggregated term of 6240 months (quick, what will he get in "good time"?).  His 2255 challenges counts based on the distinction between variance and constructive amendment.  An interesting discussion between the two but in the end, meaningless, because the claims raised were deemed identical to the claims raised on direct appeal, and therefore foreclosed by law of the case doctrine.

Sunday, June 10, 2012

Case o' The Week: Defendant's loss, a Defense Win - Leal-Vega and the Taylor Categorical Analysis

Legislatures are so creative. Bored by common, generic definitions of frequent crimes (like burglary) State Legislatures love to cook up novel definitions that expand criminal liability. California, for example, has criminalized  the possession for sale of drugs that fall outside of the standard federal definition of “controlled substances.”

Bad for clients fighting state cases. A great trend, however, for federal defendants fighting the Taylor sentencing analysis. See United States v. Leal-Vega, 2012 WL 1940217 (9th Cir. May 30, 2012), decision available here.

Players: Important case litigated by former AFPD Carl Gunn. Decision by Judge M. Smith.

Facts: In 1999, Leal-Vega pled guilty to violating Cal. Health and Safety Code § 11351 (possession for sale of a ‘controlled substance).” Id. at *1. 

A decade later he was convicted of illegal reentry, and Probation hit him with a sixteen offense level adjustment for a prior “drug trafficking offense” under USSG § 2L1.2. Id. The district court found that the prior felony did not qualify categorically as a “drug trafficking offense,” because California law criminalizes the possession for sale of "controlled substances" not within the federal definition. Id. at *2. The government appealed.

Issue(s): “The Government contends that the sixteen-level enhancement should have been applied because Section 11351 is categorically a ‘drug trafficking offense’ under U.S.S.G. § 2L1.2. Alternatively, the Government contends that even if Section 11351 does not categorically qualify, Leal-Vega’s conviction qualifies as a ‘drug-trafficking offense’ applying the modified categorical analysis because the substance involved was tar heroin, a substance covered by the federal Controlled Substances Act . . . .” Id. at *1

Held: “We hold that a conviction under Section 11351 does not qualify categorically as a ‘drug trafficking offense’ for the purposes of U.S.S.G. § 2L1.2. However, we hold that Leal-Vega’s prior Section 11351 conviction qualifies as a ‘drug trafficking offense’ using the modified categorical approach, and we reverse and remand for sentencing.” Id.

Of Note: The Taylor jurisprudential goo has been one of the hottest issues in the Ninth (and the Supremes) for the past decade or so. Two Ninth judges have taken a particular interest in the topic: the Honorable Jay Bybee (author of the fractured Aguila Montes de Oca decision), and the Honorable Milan Smith, author of Leal-Vega. Judge M. Smith has had the better approach, in our opinion – he was the first to explain that a California burglary never really ought to qualify as a “violent offense” under a categorical analysis. See blog post here. 

Judge Smith gets it right again in Leal-Vega, correctly explaining why the government’s approach to Section 11351 would undermine the reasoning behind the categorical approach set forth in Taylor. Id. at *4-*6. Leal-Vega provides a thoughtful explanation of the most important area of unsettled sentencing law: it is worth a close read for a good understanding of what Taylor really means.

How to Use: Mull this truth: a California crime of possession of a “controlled substance” for sale is now not categorically a “drug trafficking” offense under the Guidelines. We like it, but even we concede this holding isn’t intuitive unless you really dig into the state statute. Leal-Vega illustrates the importance of a brutally skeptical eye when looking at the categorical analysis of state priors that increase guideline sentences.

 The modified categorical approach still hurts, of course – here the Court permits a modified categorical analysis, and the “tar heroin” facts surrounding Leal-Vega’s prior cost him the win. Id. at *7. Nonetheless, the confusion around Aguila Montes de Oca’s fractured modified categorical approach (and its reliance on “necessary” facts) means that there are still many opportunities for mischief in Section 11351 cases.

 Build on Leal-Vega’s understanding of the broad state definitions of controlled substances to attack the categorical qualification of other state (and potentially federal!) prior convictions that increase sentencing exposure.
For Further Reading: What a contrary cuss is Carl – god bless him. To read straight from the horse’s mouth how to exploit the Leal-Vega decision, hit his blog for a recap of the opinion (he modestly forgets to note it is his case). See “Hanging out with Carl Gunn,” here

Image of the California State Legislature from

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

Labels: , , , ,

Wednesday, June 06, 2012

Xiong v. Felker, No. 09-16830 (6-5-12)(M. Smith with McKeown; dissent by Noonan).
"Hey, that guy talking in the hallway.  Isn't that the witness?  Didn't he just testify that he was really confused about a lot of things?  He seems pretty calm and collected now."  Several jurors made comments to that effect in deliberations concerning a murder charge.  The demeanor issue of extrinsic evidence  was found to  be harmless by the state courts, and the 9th, under AEDPA, found it to be not unreasonable.  The 9th also rejected arguments that the jurors should have been made to assent to contact and that defense counsel committed  IAC for a cross examination of a gang expert.  The former was not preserved, nor raised a constitutional issue of due process.  The latter was mischaracterized and was not IAC..  Noonan, dissenting, argues that the issue of extrinsic evidence considered by the jury was controlled by Supreme Court precedent and required reversa, even under AEDPA.  It could not be harmless.   Here, a key witness was the subject of discussion for what he did outside  the courtroom and off the witness stand.  The jurors saying that it didn't affect their deliberations, or that it was considered after the verdict, doesn't make it harmless.

Monday, June 04, 2012

Case o' The Week: Ninth Knocks Knock & Talk - Perea-Reyes, Curtilage, and Fourth Amendment

The Supreme Court has delivered good new authority that strengthens the Fourth Amendment, that fatally undermines previous Ninth Circuit law, and that produces great results for the defense.

Hey - it can happen. United States v. United States v. Perea-Rey, 2012 WL 1948973 (9th Cir. May 31, 2012), decision available here.
 Players: Big win for San Diego Ass't Fed Def. Gregory Murphy. Decision by Judge Wardlaw, joined by Judges Goodwin and visiting Judge William Sessions.   

Facts: Border patrol agents followed a man who illegally crossed into the US. Id. at *1. They watched the man go to Perea-Rey's home, enter through the gated fence entrance, and knocked on the front door. Id. An agent then followed the man as he went into an adjacent carport and met Perea-Rey: both were detained. Id. Perea-Rey refused to allow the agents in the house; agents with guns pulled nonetheless ordered everyone out of the home. Id.  Seven undocumented aliens were ultimately found.  Id. Perea-Rey was charged with harboring undocumented aliens. Id. The district court found the carport was curtilage, but upheld (most of) the search because "there was no reasonable expectation of privacy because it could be observed from the sidewalk." Id.

Issue(s): "The district court found that the carport, which the border agents occupied, was part of the curtilage of Perea-Rey's home, and we agree." Id. "The district court . . . reasoned that because the agents were able to freely enter the carport, Perea-Rey had no reasonable expectation of privacy in the carport." Id. at *4.

Held: "The Supreme Court has explained that the role of reasonable expectation analysis in evaluating the constitutionality of searches of the curtilage is only in determining the scope of the curtilage, and the not the propriety of the intrusion." Id. "[B]ecause [the carport] was curtilage, it was constitutionally protected area, and the warrantless entry, search and seizure by the agents violated Perea-Rey's Fourth Amendment rights." Id.

Of Note: Judge Wardlaw helpfully clarifies the "confusion that has existed for decades about the "reasonable expectation of privacy" and a search of its home and curtilage. Id. at *3. As the Supremes just explained in Jones, the Katz reasonable-expectation-of-privacy test "has been added to, not substituted for, the common-law trespassory test." Id. at *4. In other words, you retain a reasonable expectation of privacy in your home and curtilage, even if they can be seen from a public area. Stuff seen may be fair game for a warrant, id., but absent another exception cannot justify warrantless entry.  

How to Use: Perea-Rea's is a wonderful Fourth Amendment case -- in addition to the curtilage and Jones' analyses, it has a great limitation of the "knock and talk" doctrine. "Knock and talk" is that exception to the warrant requirement that allows cops to intrude on the curtilage to talk to occupants (and that tolerates searches done along the way). The theory of the "knock and talk" was Ninth law that focused on the subjective intent of the agents -- but that, explains Judge Wardlaw, has been made taboo by the Supreme Court. Id. at *5 (citing Kentucky v. King, 131 S. Ct. 1849 (2011)). King "implicitly overrules"   the reasoning of Ninth Circuit "knock and talk" law, observes Judge Wardlaw, and won't save the search here. Id. at *6. Perea-Reyes is a very important case on "knock and talk" -- will be our starting point when fighting warrantless home and curtilage searches relying on this theory.
For Further Reading: Investigators love Perea-Rea. In an intriguing little footnote, the Court takes judicial notice of Google maps and satellite images for determining the general location of the home. Id. at n.1 (citing a case that took judicial notice of online distances calculations). Ever seen those to-the-inch measurements that Google Earth can crank out? Maybe our investigators can finally hang up their rolling measuring wheels (much to their delight).  For a helpful guide on Google measurements, see Google Earth Blog here.

 Image of policemen at door from

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


Labels: , , ,