Monday, July 30, 2012

U.S. v. Ryan, No. 12-16562 (7-27-12) (Callahan with O'Scannlain and Graber)
Disclosure -- This is an AZ FPD case
The 9th affirms the denial of a second habeas petition, in which the petitioner raised a Martinez issue (IAC of PCR counsel).  The 9th focused, however, on the fact that the petitioner decided to represent himself at trial and sentencing, and so Martinez afforded no relief.

Saturday, July 28, 2012

Case o' The Week: Ninth "Totality" Underwhelmed -- Valdes-Vega and Fourth Amendment "Totality of Circumstances" Stops

The Honorable Harry Pregerson
Cram together enough innocent facts surrounding a stop and search, slap on a veneer of “totality of circumstances,” and what do you get?

   An illegal stop and search. United States v. Valdes-Vega, 2012 WL 3024188 (9th Cir. July 25, 2012), decision available here.

Players: Decision by Judge Pregerson (right), joined by Judge Murguia. Dissent by visiting DJ Conlon.

Facts: Seventy miles north of the border, Border Agent Lopez saw a red truck on I-15 making “erratic lane changes” and speeding. Id. at *2. The truck had Baja California plates. Id. Agent Lopez lost the truck; Agent Hays picked it up soon after. Id. The truck was going 90, then slowed to 70. When Agent Hays pulled alongside, the truck driver – Valdes-Vega – looked straight ahead. Id. Agent Hays thought the behavior was consistent with smuggling, pulled the truck over, searched it, and found roughly 8 kilos of cocaine. Id. Valdes-Vega’s motion to suppress was denied by the district court, with a finding of reasonable suspicion under the “totality of circumstances.” Id. at *2. Valdes-Vega entered a conditional plea.

Issue(s): “Valdes-Vega . . .  appeals the district court’s denial of his motion to suppress cocaine found in his truck.” Id. at *1.

Held: “Agent Hays's offered justification for the stop of Valdes-Vega’s vehicle was his belief that Valdes-Vega’s behavior was ‘consistent with the behavior of alien and drug smugglers in the area.’ We find that the totality of the circumstances fall short of providing reasonable suspicion to believe that Valdes-Vega was smuggling drugs or aliens. To the contrary, as discussed below, the totality of the circumstance[s] reveal a driver with Mexican license plates committing traffic infractions on an interstate 70 miles north of the U.S. – Mexico Border; a description that describes too broad a category of people to justify reasonable suspicion.” Id. at *3.

Of Note: Our Southern colleagues will love Valdes-Vega’s refusal to demote all of SoCal to a Fourth Amendment free zone. Id. at *4. The district court had found that a factor supporting the search was the fact that the stop took place seventy miles from the border. Id. Judge Pregerson correctly observes, however, that this radius from the border effectively sweeps in all cars in San Diego County: over three million souls in the fifth-largest county in the United States. Id.

   The Ninth, we hope, is becoming increasingly uncomfortable with the “border exception” swallowing all Fourth rights in the West. See United States v. Cotterman, order re: en banc here.

    Here’s hoping that Valdes-Vega marks the beginning of Cotterman’s end. See blog discussing Cotterman panel decision, here.

How to Use: Don’t stop at the good border holding of Valdes-Vega: its larger value is a terrific Fourth Amendment “totality of circumstances” analysis. Id. at *7. Judge Pregerson considers each of the facts of the totality analysis individually, and then weighs the probative value of each of the facts when considering them combined. Id. Makes much sense – but the analysis prompts a dissent that accuses the majority of dodging the Supreme’s “totality” dictates in Arvizu. Id. *8. 

  The opinion explains why its approach honors Arvizu, ending with the persuasive observation: “We think it uncontroversial to say that, when viewed in totality, a collection of facts that are each highly probative of criminal activity is more likely to support a finding of reasonable suspicion that a set of facts which are not.” Id. at *7. 

   In reality, that “totality” shtick is often a whitewash, salvaging a lousy search by blessing a jumble of innocent facts as "reasonable suspicion." Use Valdes-Vega when fighting a "totality" battle – it offers an intellectually honest method of untangling the mess of facts typically offered to support bad searches.  
For Further Reading: Arvizu and its ilk value law enforcement efficiency over our privacy interests. Why, and when, did that shift happen? For a thought-provoking view of the roots of the "totality of circumstances" test, see Frank Rudy Cooper, The Un-Balanced Fourth Amendment: A Cultural Study of the Drug War, Racial Profiling, and Arvizu, 47 Vill. L. Rev. 851 (2002).

Painting of the Honorable Harry Pregerson by David Rothman, from

Steve Kalar, Senior Litigator, N.D. Cal. Federal Public Defender. Website at

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Wednesday, July 25, 2012

U.S. v. Valdes-Vega, No. 10-50249 (7-25-12) (Pregerson with Murgia; dissent by Conlon, D.J. N.D. Ill).
The defendant was stopped 70 miles north of the US-Mexico border.  Cocaine was found in his pick-up truck with Mexican plates.  In the district court, he argued that the totality of circumstances did not provide reasonable suspicion to believe smuggling was taking place.  The district court denied thethe motion.  On appeal, the 9th agreed with the lack of reasonable suspicion, reversed the district court,and suppressed.  The 9th found that the "reasonable suspicion" was based on the fact that a large pick-up with Mexican plates, 70 miles north of the border, committed a couple traffic infractions, such as going 10 miles over the flow of traffic speed, then slowing down, changing alnes without signaling, and avoidance of eye contact with the officer.  Given the population of the area (San Diego County) and the amount of traffic, the factors could apply too broadly.  The dissent accuses the majority of "divide-and-conquer" by parsing each factor.  Taken together, according to te dissent, the officer had reasonable suspicion.

Monday, July 23, 2012

Hemingway once said that the best story he ever wrote contained just six words: "For sale: baby shoes, never worn."
1. For Whom the Sentence Tolls.
U.S. v. Rangel, No. 11-50062 (7-20-12) (Clifton with F.arris and Ikuta).
Guidelines demand notice, variances don't. Surprise?!
2. The Old Man and the Wiretap.
U.S. v. Oliva, No. 10-30126 (7-20-12) (Fisher with Paez and Clifton).
Wiretaps: ask anew when technology changes,

Saturday, July 21, 2012

Case o' The Week: (Roving) bug infestations - Oliva and Title III Wiretaps

Sure, feds listen to your cell phone calls – but only when you’re making a call, and not after you’ve hung up – right?


(As long as you’ve completely turned off the cell’s power, removed its battery, and maybe dropped the phone in a bucket of water for good measure).

 United States v. Oliva, 2012 WL 2948542 (9th Cir. July 20, 2012), decision available here.

The Hon. Raymond C. Fisher
Players: Decision by Judge Fisher (left), joined by Judges Paez and Clifton.

Facts: Oliva was a target of a Title III wiretap. Id. at *1. The broad language of the wiretap order allowed monitoring of specific cell phone numbers, and of background conversations, and of subsequent numbers assigned to the phones’ ESN and/or IMSI. Id. at *3. Oliva moved to suppress the proceeds of the wire, arguing that this broad language allowed for “roving bugs” and “roving wiretaps”: interceptions that require higher Title III showings and authorizations than found in the wiretap orders. Id. The district court denied the suppression motion.

Issue(s): “Oliva appeals the district court's denial of his motion to suppress evidence obtained from a series of electronic surveillance orders authorizing interception of communications over cellular phones . . . . Oliva contends these orders by their terms authorized more than ‘standard’ intercepts, permitting more intrusive ‘roving’ intercepts without meeting the statutory prerequisites of § 2518(11). Specifically, he contends that the orders in essence authorized the government to transform the cellular phones into roving electronic bugs through use of sophisticated eavesdropping technology.” Id. at *1 (footnotes omitted).

Held:We agree that if the government seeks authorization for the use of new technology to convert cellular phones into ‘roving bugs, it must specifically request that authority, the court must scrutinize the need for such surveillance and the authorization orders must be clear and unambiguous."

Of Note: Oliva didn’t admit that it was his voice intercepted on the wires. Id. at *1. Did he have standing to challenge the wiretaps? In a welcome holding, Judge Fisher explains that he does. Id. at *2. Title III allows any aggrieved person to move to suppress the proceeds of a wiretap. Id. (citing 18 USC § 2518). Under the statute, an aggrieved person includes those named in the wiretap order. Id. (citing 18 USC § 2510(11)). Therefore, “A person named in a surveillance order as the subject of the surveillance thus has standing to challenge the warrant’s sufficiency.” Id. at *2. 

Remember Oliva when battling a wiretap: if your client is named in the order, you DO NOT have to concede it was his or her voice captured to have standing for your Title III challenge.

How to Use: There are “standard” Title III wiretaps, and there are “roving bugs” and “roving wiretaps.” Id. at *3. Judge Fisher helpfully explains the difference between these three interception methods: the latter two require enhanced Title III showings and higher levels of approval. Id. In essence, “roving” Title III interceptions allow broader interceptions with less-restrictive “specification” requirements – i.e., the tap isn’t tied to a specific landline, but can follow cell phones, for example, or various phone booths. Id. at *3-*4. 

In a terrifying argument, Oliva explained how the Feds can transform a cell phone that is “off” into a microphone – and use cells to intercept background conversations even when no call is underway. Id. at *4. Because Oliva couldn’t prove that happened here he lost his appeal. Judge Fisher, however, makes it clear that if the government were to use this technology it must specifically identify the planned use of the technique in the application and order. Id. at *6. 

If you’re fighting a wiretap, compare the timing and content of the interceptions with the activation logs of the cell phones – fair to surmise that the Feds have overstretched with roving bugs, without the specific authorization demanded by Oliva.
For Further Reading: Read Oliva, and you’ll want to borrow some foil from that special client who wears silver hats to avoid brainwave surveillance. The opinion describes technologies that allow remotely-installed software in a cell phone that converts it to a microphone – a device that records conversations even when no call is activated. Id. at *4. For an interesting overview of reports of this technology, see “Remotely Eavesdropping on Cell Phone Microphones,” available here.

Image of “roving bug” from 

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


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Wednesday, July 18, 2012

Running Eagle v. Ryan, No. 07-99026 (7-18-12)
(Wardlaw with Bea; partial concurrence, partial dissent by Pregerson)
(Note: this is an Arizona FPD case)
The petitioner and a co-defendant were involved in a brutal murder of an elderly couple. Who actually murdered them? At the trial stage, a cellmate of the co-defendant said he had information, and wanted to make a deal. The prosecutors met with him five times. No deal was struck, and the prosecutors used another witness. At trial, and sentencing, the co-defendant argued that the petitioner was the stabber. What exactly did the cellmate witness tell the prosecutors? We don't know. The cellmate is dead. The information or even file was never turned over to the defense, despite repeated requests over 20 years. The 9th gives a deferential AEDPA shrug, concluding that such information was speculation (5 times?), and that the standard for Brady used by the state PCR courts was proper. The 9th hammers the point that the information was speculation, and can not be inferred to be favorable and material in the absence of what was actually said. Dissenting, Pregerson argues that the petitioner had sought Brady material, and it was the state which withheld it. There should be a hearing on exactly what the evidence was. The issue of who did the stabbing played, for Peregerson, a major role in sentencing. To the majority, the sentencing judge focused on the defendants as individuals, and their age, remorse, mental condition, and prospects of rehabilitation. Pregerson also believes the state courts used an incorrect standard -- "probably would have changed the verdict" -- rather than the lower standard of "reasonable probability". The state's standard is contrary to federal law. The panel all agreed to affirm the denials of the IAC claims as to failure to move for severance, prosecutorial misconduct in argument, and sentencing.
U.S. v. Pariseau, No. 10-30237 (7-16-12) (Goodwin with W. Fletcher and M. Smith).
Defendant got off the plane in Seattle, headed from Alaska to Arizona, and was detained.  "We can get a warrant," the police said, to which the defendant replied, to the effect, "You may as well search me now." The search revealed meth strapped to his leg by an ace bandage. The 9th concluded that the "search me now," qualifies as consent.  The defendant also argued that venue lay in Seattle, where he was arrested, rather than Alaska.  The 9th holds that attempted possession with intent to distribute is a continuing offense, and venue is proper where the offense began, continued, and concluded.  The defendant began the attempt in Alaska, and had made several trips to Arizona from Alaska to further the plan.  Thus, venue was proper n Alaska.

U.S. v. Pope, No. 11-10311 (7-17-12) (Bea with Wallace and Callahan).
If at first you don't succeed in getting the defendant to empty his pockets, simply try again. That was the tactic of the police in the El Dorado National Forest upon encountering a party and the defendant. The defendant, according to the officer, looked like he was under the influence of pot (there was loud music after all), and so the officer asked him if he had been smoking. "Yes," admitted the defendant. The officer asked if the defendant had any on him. The defendant denied this. The officer then asked him to empty his pocket. The defendant refused. Then, the officer asked him again if he had marijuana on his person, and when the defendant admitted this, the officer ordered him to place the pot on the hood of the car. The 9th concluded that the first command was not a search, because nothing came of it. The second command, put the pot on the hood, was a search, but was incident to probable cause to arrest, and the evanescent nature of the evidence. The focus on "probable cause to arrest" rather than an actual arrest is troubling, but the 9th found it supported by the exigent circumstances.

Sunday, July 15, 2012

Case o' The Week: Use it Or Lose It (Then Win It) - Yepiz, Jury Selection, and Rule 24

“Use or lose it:” a wonderful strategy to focus decision-making, and a pithy little proclamation for motivational posters.

Not a great rule, though, when peremptory challenges are at stake. United States v. Yepiz, 2012 WL 2510341 (9th Cir. July 2, 2012), decision available here.

Players: Decision by Judge Rawlinson, joined by Judge W. Fletcher and DJ Mills. Creative challenge by former SD Cal AFPD Ben Coleman.

Facts: Yepiz went to trial. Id. at *2. As directed by Fed. R. Crim. Procedure 24, the government had six peremptory jury challenges and the defense had ten. Id. The district court, however, used a “use or lose it” approach: “acceptance of a jury panel as constituted at any point during the voir dire proceedings would be counted as the use of a peremptory challenge.” Id. The defense didn’t object to this approach. During jury selection, the defense used eight challenges, and didn’t object to the next two proposed panels. Id. The result under “use it or lose it” was that the defense effectively lost its last two peremptory challenges. Id. After the government used its last strike, a juror was called into the prospective pool. This juror had a law degree, had interned in a D.A.’s office, and worked in her husband’s legal practice. Id. at *3. Though it had only used eight strikes, the defense could not exercise its remaining two challenges because of the “use it or lose it” policy, and because it had accepted previous panels. Id. The final juror was seated, Yepiz was convicted. Id.

Issue(s): “We consider whether the district court plainly erred by employing its ‘use it or lose it’ voir dire policy practice and determining that Yepiz’s acceptance of two jury panels as then constituted resulted in a waiver of two peremptory challenges. According to Yepiz, this involuntary waiver of his peremptory challenges forced him to accept a biased replacement juror.” Id. at *5.

Held: “In this case, as in [United States v. Turner, 558 F.2d 535, 538 (9th Cir. 1977)], the defense was entitled to ten peremptory challenges, no more, no less. Yet, the district court’s “use it or lose it” practice deprived the defendant of the full complement of challenges to which he was entitled under Fed. R. Crim. P. 24. As in Turner, equating acceptance of the jury panel at any point in the voir dire process with waiver of a peremptory challenge “unduly restricts” the defendant’s use of the peremptory challenges to which he is otherwise entitled. Turner, 558 F.2d at 538; see also Pointer v. United States, 151 U.S. 396, 408 (1894) (declaring that “[a]ny system for the impaneling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of [peremptory challenges] must be condemned.”) (emphasis added).” Id. at *6.

Of Note: Judge Rawlinson provides a good explanation of Rule 24, and helpfully clarifies some muddled law on restraints on the defense’s use of peremptory challenges. Id. at *5-*6. Unfortunately, Yepiz also explains that this error does not create per se reversal: absent objection, this is reviewed for plain error. Id. at *6 (discussing UnitedStates v. Lindsey, 634 F.3d 541, 550 (9th Cir. 2011)). Here, Yepiz couldn’t surmount plain error because he didn’t show the bias of the final juror: the conviction was sustained Id. at *6.   

How to Use: At least one ND Cal District Judge has a “use or lose it” policy for jury selection – a policy that seems to be plain error under Yepiz. See id. at *6 (“The error . . . in this case was obvious because it was contrary to the plain language of Rule 24.”) If you’ve got a pending appeal from that NorCal court, a plain error challenge may await. For future cases, add Yepiz to your trial binder and object to any restraints on defense peremptory challenges. Judge Rawlinson’s language in Yepiz is straightforward and welcome – there’s little room in Rule 24 for creative jury selection policies when defense strikes are at issue.
For Further Reading: “Plain” or “structural” error? Back in the good ‘ole days, an error that affected the structural fairness of a trial earned the defense an automatic reversal on appeal. That enlightened approach is under attack. For an interesting (albeit discouraging) discussion on structural error in the jury-selection context, see Lindsey, 634 at 546 – 48, and Judge Pregerson’s concurrence at 556.

Image of “Use it or Lose It” from Image of, "Use it or Lose It" from

Steven Kalar, Senior Litigator ND Cal FPD. Website at


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Tuesday, July 10, 2012

Second Look Resentencing: The Human Costs Of The BOP’s Restrictive Implementation Of Compassionate Release

Phillip Smith contacted our office because, even though he had been diagnosed with a terminal illness, the Bureau of Prisons refused to allow his sentencing judge to decide whether to grant a motion to reduce his sentence and let him die at home. After about two weeks of litigation, the BOP agreed to file the motion, which the judge immediately signed. After release, Phillip sat down with us to describe his experience with a system that failed to even alert his judge to his terminal illness until he had almost no time left. The video with Phillip's story in his own words is available here. Phillip died a week after the interview.

Legal arguments are one thing; the practical and human costs are another. Phillip hoped that by putting a human face on the problem, things would change for the hundreds of prisoners whose sentencing judges never even know of the extraordinary and compelling circumstances that warrant a second look resentencing. To put the issue into perspective, here are three posts that provide relevant historical and legal links:

• The pleadings and a fuller description of legal issues in Phillip's legal case are set out in Putting The Compassion Into "Compassionate Release"

• The federal defenders' hopeful view of the Sentencing Commission’s 2007 interpretation of the second look statute and their legal objections filed that year to the BOP's rules are set out in Neglected Compassion: Reduction Of Federal Prison Terms Under 18 U.S.C. § 3582(c)(1)

• The analysis of overall BOP policies and practices resulting in over-incarceration, including the failure to fully implement the second look statute, are set out in GAO Shows BOP How To Save Millions By Implementing Ameliorative Sentencing Statutes

We can hope that the powerful legal arguments, with the powerful practical and humane considerations, will someday lead to real change.

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

Saturday, July 07, 2012

Case o' The Week: What Happens in Vegas . . . Gets Reversed in SF -- Castillo-Marin and Taylor Sentencing

Las Vegas, surprisingly, isn’t so hot at interpreting New York. United States v. Castillo-Marin, 2012 WL 2550594 (9th Cir. July 3, 2012), decision available here.

Players: Decision by CD Cal DJ Timlin, joined by Judge Fisher. Dissent by Judge Rawlinson. Nice win for Nev. AFPD Brenda Weksler and Federal Defender Rene Valladares.

Facts: The PSR for Castillo-Marin’s illegal-reentry sentencing in Las Vegas hit the defendant with a +16 offense level, specific offense adjustment. Id. at *1. The PSR described a New York prior, where the charging document alleged Castillo-Marin had stabbed a man five times with a knife – putting the victim in critical care. Id. Looking to the “crime of violence” definition at 8 USC § 1101(a)(43) [ed. note – a definition used for “agg felonies”], the PSR found the New York prior qualified and recommended a sentence within the offense level 21 range (post-acceptance). Id. The defense did not object. Id.

Issue(s): “Castillo-Marin challenges the district court’s application of U.S. Sentencing Guidelines (U.S.S.G.) § 2L1.2(b)(1)(A)(ii), which imposes a 16-level enhancement where a defendant has previously committed a crime of violence. He contends that the district court committed plain error by relying solely on the PSR’s characterization of his prior conviction.” Id. at *1.

Held: “[T]o the extent the district court relied on the PSR’s factual description of Castillo-Marin’s prior offense to determine that Castillo-Marin had been convicted of a crime of violence, it plainly erred.” Id. at *3.

Of Note: Appellate folks: here are two nuggets in Castillo-Marin to tuck away for future briefs. First, the defense here argued in its opening brief that all four prongs of the plain error analysis were met. Id. at *2. In its answering brief, the government did not contest that the first two prongs of plain error were satisfied. Id. The government was then (to its likely chagrin) bound by that concession: when the government fails to contest an argument in its answering brief it is “deemed waived.” Id.

Second, the government urges the Ninth to take “judicial notice” of New York documents surrounding the prior. Id. at *7. Judge Timlin ain’t buying it, emphasizing that the Ninth “rarely take[s] judicial notice of facts presented for the first time on appeal.” Id. Remember Castillo-Marin when the government tries to sneak facts in on appeal through the “judicial notice” ruse.

How to Use: Castillo-Marin is a good source for three sentencing propositions that are now black-letter law:

• A district court can’t use a PSR for the Taylor analysis. Id. at *3.

• PSRs are so off-limits for Taylor sentencing that using them can constitute plain error on appellate review. Id. at *4.

• Charging documents (here, the New York indictment) alone are never sufficient to establish a predicate offense under the modified categorical analysis. Id. at *9.     
For Further Reading: Aggravating matters (pun intended), the Las Vegas Probation Office used the wrong definition of “crime of violence” when it hit Castillo-Marin with a +16 OL specific offense adjustment. Id. at *4. The Probation Office used the statutory definition, for aggravated felonies. Id. (discussing §1101(a)(43)). The +16 OL specific offense adjustment in Guideline § 2L1.2(b)(1)(A)(ii), however, has a different definition of “crime of violence.”

“Crime of Violence” (or, “C.O.V.”, for Taylor geeks) is a complex and subtle area of law that can make a big difference for our illegal reentry, ACCA, and Career Offender clients. For a helpful outline on this complicated area, see Michael A. Meetze, AFPD D. S. Carolina, Determining “Crimes of Violence” and “Violent Felonies”, available here

Image of "New York, New York Las Vegas" from

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


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Tuesday, July 03, 2012

U.S. v. Castillo-Marin, No. 10-10549 (7-3-12) (Timlin, D.J., with Fisher. Concurrence by Rawlinson), decision available here.
When it comes to a categorical analysis of a prior conviction, looking solely to the PSR won't cut it. The 9th vacates a +16 adjustment in a reentry case, under plain error, when the court relied just on the PSR's description of the offense, and whether it met the COV definition. Looking at the underlying state conviction (New York Penal Code 120.10(4)) for Attempted Assault Second Degree, the 9th concludes that it is overbroad to categorically say it is a COV because of a lack of intent to injure. On remand, the government can seek to introduce judicially cognizable pleadings or colloquies that could prove a COV. Concurring, Rawlinson states that precedent compels the remand, and she is not joining the opinion's alternative basis, which was the wrong citing of the definition of a COV by the PSR. She felt that the PSR subsequently correctly cited the statute.


Monday, July 02, 2012

U.S. v. Yepiz, No. 09-50574 (7-2-12) (Rawlinson with W. Fletcher and Mills, Sr. D.J.).
"Use it or lose it" was the practice of a district court when it came to peremptory challenges to the jury composition. Under the court's odd practice, a party had to use the challenges before a jury panel was passed, and if a panel was passed at various times, before all jurors were seated, that pass counted as a peremptory. This practice meant that when a prospective juror was seated, if defense counsel had used eight prior challenges and passed a panel twice, counsel and defendant were out of luck. This scenario unfolded here, with the prospective juror being a nonpracticing lawyer, who had once interned in a D.A.'s office. The 9th found that the court's practice violated Fed. R. Crim P. 24(b). The Rule gives the defense ten (10) peremptory strikes, and the court cannot impose a waiver rule or put obstacles on the exercise. Unfortunately for the defendant here, the review was under "plain error." The 9th found that although error occurred, it did not undermine the fundamental fairness of the trial. The defendant's convictions and life sentence are affirmed.

Ford v. Gonzalez, No. 11-15430 (M. Smith with McKeown; dissent by Noonan).
The petitioner argues that the state (California) withheld Brady information in its prosecution of him for bank robberies. Surprise! The State, in fact, did. It withheld the fact that the state's witness, who had talked to defendant, received lenient treatment in charging and sentencing. The petitioner alleged Brady violations and IAC. The state courts rejected the claims, holding that the petitioner was not prejudiced. The 9th does likewise, using AEDPA deference. The majority states that the petitioner should have inferred some benefit to the informant, who was his wife's sister. Moreover, petitioner's wife had lived in the house with the informant, drafted a letter of recantation, and should have known what benefits she got and should have let her husband know before the AEDPA statute ran. Noonan, dissenting, points out that the Brady obligation is on the state, and not on the spouse to inform on her sister.

Sunday, July 01, 2012

Case o' The Week: Venue on the Menu - Gonzalez and Manufactured Venue

A snitch makes two calls from NorCal, to a defendant outside of our district. No facts show the defendant knew the snitch was in the Northern District. The calls ultimately produce a large drug sale, in distant Modesto (the Eastern District of California). The defendant never steps foot in the Northern District of California, and has no ties here other than the snitch’s calls. Where does venue lie?

Welcome to San Francisco. United States v. Gonzalez, 2011 WL 2402057 (9th Cir. June 27, 2012), decision available here.

Players: Decision by Judge Tallman, joined by Judges Gould and Bea. Hard-fought case by NorCal defense attorney Erick Guzman. Appeal from decision of District Judge William H. Alsup.

Facts: A snitch in the Northern District of California called Gonzalez twice to negotiate a drug deal. Id. at *1. During both calls Gonzalez was outside of the district. Id. No facts before the Ninth showed that Gonzalez knew the snitch was in the Northern District when the calls were made. Id. 

A large cocaine deal followed, in the Eastern District of California. Id. 

Based on the snitch’s two calls, Gonzalez was indicted in the Northern District. He moved to dismiss the indictment based on improper venue. Id. at *1. The motion was denied, a stipulated facts bench trial followed, Gonzalez took the venue challenge up. Id.

Issue(s): “On appeal, [Gonzalez] claims that the district court erred in holding that venue on the drug-conspiracy offense was proper in the Northern District of California.” Id. at *1.

Held: “The CI’s presence in the Northern District of California during the telephone calls with Gonzalez sufficed to establish venue there on the conspiracy charge.” Id. at *2. “It [does not] make any difference that Gonzalez never set foot in the Northern District of California and did not initiate the calls himself. It was sufficient that, in furtherance of the conspiracy, Gonzalez conducted communications with someone located in the Northern District of California.” Id. at *2. “[I]t does not matter whether Gonzalez knew or should have known that the CI was located in the Northern District of California during the calls.” Id. at *3. “Gonzalez effectively propelled the drug-selling conspiracy into the Northern District of California by negotiating the terms of a substantial drug transaction on a telephone call with a CI who was located in that district. Venue on the conspiracy charge was therefore proper in the Northern District of California.” Id. at *4.

Of Note: Defender Jon Sands has worried that the broad venue holding of Gonzalez has worrisome ramifications for internet crimes. He’s right. Consider eager FBI Agent Robin Andrews, who generated a series of child porn cases by surfing on her Tucson computer. See blog here 

Prepare to defend cases with no ties to your district, for distant clients who made the poor choice of using a computer (or smart phone!) to further a crime.    

How to Use: The government, Gonzalez (persuasively) argued, manufactured venue in the Northern District by using a CI here to make the calls. Id. at *3 & n.6. For the second time this year the Ninth dodges this issue – conceding that manufactured venue may be a defense, but finding that there were no ‘extreme’ law enforcement tactics used to manufacture venue here. Id.; see also Kuok blog here.

 Keep slugging away at the “manufactured venue” argument – it remains a possible challenge for a prosecutorial gambit that seems both tremendously unfair and ripe for abuse. The third time “manufactured venue” hits the Ninth this year may be the charm.

For Further Reading: Everyone agrees -- it is outrageous and offensive to manufacture venue, to drag a defendant into a distant district where there are no roots or ties, and to force the defense to fight serious federal allegations in a completely foreign district. 

At least, all agree that manufactured venue is outrageous when the defendant is a large corporation, when the plaintiff is a patent troll, and when the venue is the Eastern District of Texas. See patent troll article here

There, are, of course, distinctions between Gonzalez and a patent troll case. San Francisco is more pleasant than Tyler Texas, as a venue into which to be dragged.

"Welcome to San Francisco" image from
"Patent Troll" image from

Steven Kalar, Senior Litigator, Northern District of California Website at


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