Thursday, August 30, 2012

U.S. v. Vasquez-Cruz, No. 11-10467 (8-30-12) (Ikuta with Hug and Rawlinson).
The 9th brushes off the U.S. Sentencing Commission in this intriguing opinion. In affirming a sentence, the 9th looks askance at the Commission's amendment 741 (what? you don't know them by number?) which states that sentencing procedure requires a 3-step approach: a guideline calculation, a consideration of departures, and then variances. Not in our circuit, huffs the 9th. In this case, the defendant plead to a 1326 re-entry. He argued for a departure or variance based on mental diminishment and cultural assimilation. The court sentenced him to the low end of the guideline range -- 24 months -- stating that the defendant didn't "fall outside the heartland." On appeal, the defendant argues that there was a procedural error in that the court did not first consider departures, and then move to variances. "Why would it?," questioned the 9th. After all, implies the 9th, it is all one and the same, and the better approach is to see if the sentence is reasonable. Oh, by the way, that is what we do in the 9th in U.S. v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006). That is also the approach of the 7th Circuit. The 9th recognizes that the amendment was promulgated to resolve a supposed circuit split on approaches to departures:  the 7th vs the majority of circuits (the opinion here observes that the Commissionn failed to mention that the 9th follows the 7th). The majority seem to require the 3-step procedure approach. The 7th could not be bothered, and believes that variances have replaced departures. However, the 9th concludes that the amendment does not abrogate the 9th's precedent. It is at best an instruction to the district court, but has no force with an appellate court, where the focus is on reasonableness of the reasonableness of the sentence. The amendment itself also seemed involved with immaterial minor adjustments to 1B1.1. The 9th's conclusion is that the amendment does not change a thing.  Although it is a loss to the defendant here, the broader policy picture has the 9th embracing the post-Booker world, where variances have supplanted departures, and the focus is on the reasonableness of a sentence, and not the unnecessary 3-step approach required by the Commission.

Wednesday, August 29, 2012

Ayala v. Wong, No. 09-99005 (8-29-12) (Reinhardt with wardlaw; dissent by Callahan).
The defense made a Batson challenge after the state, in this capital prosecution, used all their peremptory challenges to strike all prospective Black and Hispanic jurors.  The court found that a prima facie case had been made, and then granted the state's request for an in camera hearing as to the justifications. Yes, you read right, defense counsel was excluded from the hearing where the state explained why it struck the minority jurors, leaving the jury non minority. The state later admitted that no trial strategy had been discussed. And, in addition, most of the juror questionnaires had been lost. The California Supreme Court found error, but, with two dissents, held it harmless. The district court denied the writ. The 9th reversed, and granted. It held that exclusion of counsel was error, violated the Constitution, ran counter to precedent, and was prejudicial. The reasons on the record for excluding jurors seemed not to be valid, and were not applied to other non-minority seated jurors. The focus was denial of counsel as opposed, for example, confrontation. Counsel could have challenged some of the reasons, and would have made a record. Dissenting, Callahan argues for AEDPA deference, and the deference to the state trial judge in finding the reasons proffered valid.
Gentry v. Sinclair, No. 09-99021 (8-28-12) (Clifton with Fisher and Paez).
In an appeal from a denial of a capital habeas, the 9th reverses the district court's finding that the IAC claim on failure to present mitigating evidence was procedurally defaulted. The claim was exhausted before the Washington supreme court and it was considered on its merits. However, after clearing that hurdle, the claim was denied because AEDPA deference, the state court's denial was not unreasonable. Moreover, the 9th denied the slew of other claims related to Brady and Napue disclosures on on jailhouse informants, ex post facto claims related to victim impact statements, jury instructions, and juror issues.

Stancle v. Clay, No. 09-056374 (8-28-12) (N. Smith with Nelson and O'Scannlain).
In tolling issues, the 9th holds that the petitioner was not entitled to a 44-day gap tolling between the denial of his first petition and the filing of a second petition, because the second petition was not an elaboration of facts arising from the first petition. The 9th also did not find equitable tolling, as petitioner's mental impairment did not make it impossible to meet the filing deadline.

Monday, August 27, 2012

U.S. v. Pineda-Doval, No. 11-10134 (8-27-12) (B. Fletcher with Canby; dissent by Graber)
(Note: This is a Az FPD case)
The 9th again reversed the district court for imposing 10 life sentences in an illegal smuggling case where death resulted. The deaths occurred as a result of roll-over when the vehicle swerved to evade a spike strip. In applying a cross reference to second degree murder, the district court reasoned that the defendant should have known that such tragedies could happen, and that he displayed little remorse. The 9th found that there was no basis for applying the cross reference, as the defendant did not act with malice aforethought or extreme recklessness. On remand, the 9th ordered the court not to apply the cross-reference, and to have a full resentencing, giving an opportunity for allocution. Dissenting, Graber argues that the remand previously was for the purpose of factfinding, and that teh district court did not clearly err in concluding the the defendant's acts were extremely reckless.

Congratulations to AFPD Dan Kaplan, Arizona FPD (Phoenix). It was his second win in this case.

U.S. v. Bailey, No. 11-50132 (8-27-12) (B. Fletcher with Kleinfeld; dissent by M. Smith).
The defendant was convicted of two counts of securities fraud. A key to the prosecution was the introduction, under FRE 404(b), of a SEC complaint, filed a year before the alleged fraudulent issuance of stock, charging a similar act, which was settled. The prosecution used the prior complaint to bolster the "wilfulness" requirement of the offense. The defendant, on appeal, argued that introduction of the complaint was error. the 9th agreed. The 9th found that the requirements of FRE 404(b) were not met. The prosecution did not introduce facts or actual acts to showed knowledge; it merely introduced the complaint, and settlement. There needed to be more. Moreover, a settlement of a civil complaint could be for a variety of reasons. The error was not harmless, even though there was a cooperating witness. This was a close case, and it revolved around intent. M. Smith, dissenting, would find the admission of the SEC complaint proper because it goes to show that the defendant was aware of the regulations given that he was sued over them a yer previously. It went to knowledge of the law. Smith believes that a 403 balancing would be more appropriate,and such a balancing would still weigh toward admission. Even if the court erred in admission, it was not prejudicial.
Miles v. Ryan, No. 10-99016 (8-27-12) (Graber with Tallman; partial concurrence and partial dissent by Berzon).
The 9th affirms the denial of habeas, which focused on the alleged IAC of counsel at sentencing. The petitioner was part of a car jacking/robbery, where a young woman was shot to death. He was not the shooter. On appeal, the petitioner argued that his counsel was ineffective because she focused on the petitioner's intoxication for mitigation rather than his drug addiction, used an unqualified expert, and failed to investigate fully the petitioner's social history. Using the AEDPA deference standard, the 9th held that counsel acted appropriately, under the state law of the time (1993) in focusing on intoxication, because drug addiction, at that time, had to be tied to the offense. Still, the focusing on intoxication at the time was not well implemented. The use of the expert, who was lacking information to draw conclusions, could well have been ineffective. However, it was harmless. Turning to the social history investigation, or lack thereof, counsel employed a strategy to focus on the petitioner's separation from his wife and death of his mother to explain a spiral downward to crime and murder. Under counsel's approach, the petitioner was a "nice young man" who ran with a bad crowd and companions because of depression; and further, he was a minor participant in a brutal murder, and could be rehabilitated. This strategy was a choice, and a valid one, and under Pinholster, the decision to embark on one strategy excused fuller investigation on another strategy. To present him as a crazed drug addict with a sordid past contradicted this strategy. Berzon concurs in affirming the decision not to grant relief for IAC in regards to presenting addiction as a mitigator and to the expert's alleged deficiencies. She would grant relief for lack of sufficient investigation into the petitioner's troubled background. Berzon argues that the state supreme court applied Strickland in a manner inconsistent with the Supreme Court's decisions regarding developing mitigation.
U.S. v. H.B., No. 11-30099 (8-22-12) (Nelson with Tashima and Callahan).
The 9th affirms an adjudication of juvenile delinquency. The evidence of aiding and abetting an ago sex assault was sufficient and the sentence of 18 months at a juvenile correctional facility was reasonable.

Frost v. Van Boening, No. 11-35114 (8-22-12) (Tallman with Guy (6th Cir); dissent by McKeown).
The 9th affirms a denial of a habeas petition arguing that the limiting of counsel's closing statement was structural error. The petitioner faced counts of burglary and robbery. His defense at trial was that the state failed to prove accomplice liability and that if he was an accomplice, he acted under duress. The state judge ordered that he chose one off the other to argue in closing, because duress was an affirmative duress. This was error. However, under AEDPA, the state court's determination that the error was harmless was not unreasonable. Under AEDPA, deference is given to the state courts. Here, although the Supreme Court held in Herring that preventing a closing argument was structural error and a violation of due process, the limiting here was not structural. The jury was instructed on the burden of proof, and the elements, and the defense argued one theory. This was not on direct appeal. McKeown dissented, arguing that the state court's ruling went to the core of due process, and was structural error under Herring. The petitioner was limited in arguing about the state's failure to prove all elements, and was forced to chose defenses where he didn't have to. The Supreme Court in Herring and circuit precedent made this clear.

Saturday, August 25, 2012

Case o' The Week: An Allocute Salute -- Dreyer, Competency, and Allocution

Proposition: A mentally-ill defendant who cannot effectively allocate at sentencing is not competent.

Assignment: Litigate full scope of above proposition for next five years. 

 United States v. Dreyer, 2012 WL 357071 (9th Cir. Aug. 21, 2012), decision available here.

Players: Decision by Judge Reinhardt, joined by Judge Wardlaw. Dissent by Judge Callahan.

Facts: “At the age of 63. . . Dreyer experienced the onset of frontal temporal dementia, a degenerative brain disorder that causes changes in personality and behavior, impairs social interactions, and causes inhibition and a loss of insight and impulse control.” Id. at *1. A psychiatrist, Dreyer conspired for six years to distribute controlled medications. Id. The offense began after the onset of dementia. Id. After Dreyer pleaded guilty, three experts agreed on this diagnosis and explained how the dementia could affect Dreyer’s behavior. Id

At sentencing, defense counsel explained that Dreyer wouldn’t allocute because the disease made it impossible to predict what the defendant would say (e.g., it could be offensive or untruthful). Defense counsel asked for probation; the district court imposed 10 years. Id

Defense counsel did not seek a competency hearing at any point, and the district court did not sua sponte initiate a competency hearing. Id.

Issue(s): “Dreyer appeals his sentence, contending that the district court erred by failing sua sponte to order an evidentiary hearing to determine his competency at the time of sentencing.” Id.

Held: : "We hold that the record before the district court at sentencing was sufficient to cause a genuine doubt as to the defendant’s competence and that the district court committed plain error by failing to order a hearing sua sponte . . . In light of the additional circumstances of the case, we also direct that all further proceedings be assigned to a new judge on remand.” Id

Of Note: Judge Reinhardt has long been interested in competency and mental health issues in criminal cases and has authored a string of thoughtful opinions in this area. See blog collection of decisions here. Dreyer is another fascinating decision in this line.

In Dreyer, Judge Reinhardt concedes that the question of sua sponte competency hearings is an issue reviewed for plain error. He describes, however, the unique context of plain error review, when a defense attorney hasn’t raised competency and the district court has failed to initiate a hearing sua sponte. Id. at *5. 

The Court then concludes that the “The ability to allocute . . . is an essential element of” participation at sentencing. Id. Because Dreyer was too impaired to allocate, it was plain error not to initiate a competency hearing. 

After Dreyer, is it now the rule that a district court must sua sponte initiate a competency hearing when a mentally-ill defendant cannot effectively allocute? Perhaps -- though Judge Reinhardt emphasizes the considerable expert evidence that was before this district court at sentencing, raising a competency red flag. Bear Dreyer in mind when arguing mental illness mitigation at sentencing. If your client cannot effectively allocate because of a mental illness, a sua sponte competency hearing may await. (A hearing that, unfortunately, is often not in the client’s best interest).

How to Use: Read Dreyer as a useful primer in any competency case. One key insight is that the level of competency required doesn’t change at different procedural postures. The amount of client participation needed, however, does change at different stages of the case – and client participation is a key part of the competency analysis. Id. at *5. A client too mentally-ill to speak in court may be fine for a bail proceeding, but -- as in Dreyer – would not competent at sentencing.
For Further Reading: For an article explaining the tragic facts surrounding this case – and reporting Dreyer’s problems at his plea – see posting here.

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

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Tuesday, August 21, 2012

U.S. v. McTiernan, No. 10-50500 (8-20-12) (Gilman (6th Cir) with Tallman and N. Smith).
The defendant argued, in this conditional appeal, that the key piece of evidence for obstruction -- a recording of a phone call -- should have been suppressed under 18 USC 2511.  That provision states that intercepted communication evidence cannot be used if the interception was for purposes of a crime.  This case arises from the illegal recordings of a Hollywood investigator and his call with the defendant about the recordings.  The 9th affirmed the denial of suppression, holding that the focus is on the intent of the recorder.  The investigator recorded the phone call as a way of keeping a "to-do" list, and not for a crime per se, like blackmail.  The opinion discusses the state of mind of the recorder, and what he intends to do with the recording.  This is a good overview of the law.  The 9th also found no basis for recusing the judge.

U.S. v. Dreyer, No. 10-50631 (8-21-12) (Reinhardt with Wardlaw; dissent by Callahan).
The opinion begins with a recounting of how the defendant, a practicing psychiatrist, experienced at 63 the onset of fronto-temporal dementia, which is a degenerative brain disorder.  This condition causes changes in personality, impairs social interactions, causes disinhibition, and causes loss of insight and impulse control.  At the age of 73, the defendant was sentenced to ten years after he plead guilty to a conspiracy to distribute drugs.  He did not allocute, because of his condition, and the court had filed three expert reports that all agreed with the diagnosis.  Counsel, however, never moved for a competency hearing.  The 9th held that it was plain error for the court not to order, sua sponte, a competency evaluation.  It so found based on the substantial records before it, and despite of the defendant answering the court's questions.  Although counsel is in the best position to gauge competency, the court has a duty to act if faced with a substantial doubt, as the court was here.  Dissenting, Callahan acknowledges the tragedy of the defendant, but would find that there is no plain error given that the defendant was represented by counsel, and acted and answered questions in court appropriately.

Monday, August 20, 2012

The 9th has continued to be busy during its judicial conference.

Sessoms v. Runnels, No. 08-17790 (8-16-12)(en banc: opinion by B. Fletcher with Schroeder, Wardlaw, Fisher, Paez, and M. Smith; concurrence by Fisher with B. Fletcher, Wardlaw, and Paez; dissent by Murguia with Kozinski, Silverman, Callahan, and Ikuta).
The 19-year old turned himself in on a murder charge, with the advice of his father to ask for a lawyer. The police came in, and the young man said "My dad asked me to ask you guys...give me a lawyer."  The police did not.  They told him that it would hurt him, that it was futile, and the whole thing was being taped.  They then questioned him, and read him his rights, and got a confession.  At trial, he got LWOP on felony murder. Sitting en banc, the 9th granted his habeas.  The majority held that the request was clear under Miranda and the state court's reasoning that it was ambiguous under Davis was unreasonable.  The concurrence agrees, and also would find that the request met the more stringent standard under Davis for unambiguous. The dissenters wring their hands, shrug their shoulders, and say that under AEDPA the state court's ruling was not unreasonable (really).

US v. Duenas, Jr., No. 09-10492 (8-16-12)(Wardlaw with Alarcon and N. Smith).
It was quite a search on Guam.  ATF and DEA and Guam police descended on a house, in the jungle, and started looking for drugs and guns.  It was such a big deal that it stretched over two days, and was followed by the public and the media, some of whom seemed to wander through the scene.  The 9th agreed that it was a mess, and a Fourth Amendment violation, but there was no prejudice from the woefully inadequate controls.  The 9th did reverse on the admission of a now deceased police officer's testimony at a suppression hearing.  The hearing went to the invocation of counsel, which was heatedly disputed (did he invoke or not?).  However, the cross exam was not with the same purpose as the statement's use at trial. The exam and questioning was for suppression and invocation, not to the truth of the matter.  The court erred in finding that the purpose and opportunity was the same for the two hearings.  This opinion is good at the matching requirement, and that a hearing is not an admission ticket for a future trial.  The co-defendant in this case was not so lucky, and the conviction affirmed with sufficient evidence.

Jones v. Ryan, 10-99006 (8-16-12)(Gould with Tallman and Bea).
In a capital habeas petition, the 9th affirms the denial of the claim.  There was evidence presented of prosecutorial misconduct in presenting and arguing evidence.  For example, the prosecutor argued that the petitioner busted down the door, when it was actually the police.  The argument went to the petitioner's violence and intent as to the multiple murders.  The district court was troubled, but at the end of the day, or petition, the evidence was overwhelming and the misconduct could have been "an innocent mistake" by an experienced prosecutor.

Sunday, August 19, 2012

Case o' The Week: Ninth Provides Concrete Answer, Sierra-Acosta and Assault on Federal Officer

Is it assault on a federal officer if you lob a hunk of concrete at the head of a border agent, but the officer never sees it?

No. (At least, it isn't under the “intent-to-frighten” theory of assault). United States v. Acosta-Sierra, 2012 WL 3326623 (9th Cir. Aug. 15, 2012), decision available here.

The Honorable Judge Dorothy W. Nelson
Players: Decision by Judge Nelson (left). Victory for San Diego Ass’t Defender Jason Ser.

Facts: Acosta-Sierra, a mentally-ill man, chucked a baseball-sized chunk of concrete at a border officer. Id. at *1. The rock missed the officer’s head by two feet -- the officer never saw it. Id. Moments later, the officer saw other officers arrested Acosta-Sierra, and began to feel “a little scared.” Id. Acosta-Sierra was convicted at a bench trial of 18 U.S.C. § 111(a)(1), assault on a federal officer. Id. at *2.

Issue(s): “The question here is whether Acosta-Sierra is guilty of assault if the rock he threw narrowly missed Officer Lopez, and Officer Lopez did not see the rock or feel afraid until immediately after it landed.” Id. at *4.

Held: “The first type of common law assault is an attempt to commit a battery . . . The second type of criminal assault, sometimes called an ‘intent-to-frighten,’ derives from the law of torts, and recognizes the importance of protecting individuals from the mental disturbance of being put in reasonable apprehension of bodily harm.” Id. at *3-*4. 

Although Acosta-Sierra’s rock-throwing seems to be a straightforward example of attempted battery, the district court analyzed his conduct under only the ‘reasonable apprehension of harm’ prong of common law assault.” Id. at *4. “We conclude that the district court erred in its application of the ‘reasonable apprehension of harm’ prong of common law assault. However, because the evidence would have been sufficient to convict Acosta-Sierra of attempted battery if the district court had not relied on the erroneous model jury instruction then in effect, we remand for retrial under the proper standard.” Id. at *5. 

“The district court erred in concluding that Acosta-Sierra caused a reasonable apprehension of immediate bodily harm under an objective standard of reasonableness because the district court did not limit its consideration to the facts known to Officer Lopez. Officer Lopez did not see Acosta-Sierra before he threw the rock and did not realize what had happened until after the threat of imminent bodily harm had passed.” Id. at *7.

Of Note: This opinion is fascinating discussion of the surprisingly complex assault statute. Judge Nelson devotes much effort to distinguishing and explaining the two theories of assault. 

The disappointing corner of the opinion is the later mens rea discussion relating to another count. Id. at *9. Despite ambiguity in the mens rea requirement (revealed in the tension between the Ninth’s Jim and Chapman) the Court sticks to the view that Section 111 assault is a general intent crime. Id. at *11. The result? Diminished capacity is not a defense in Section 111 cases, and the shrink here was properly excluded. Id. at *12 (“While mental health evidence would have explained why Acosta-Sierra subjectively believed that self-defense was necessary under the circumstances, it would not have supported the proposition that his actions were objectively reasonable.”)

How to Use: The “rock-throwing” count in this indictment did not specify the theory of prosecution. Id. at *9. Because there are two ways to prove Section 111 assault – and because the two theories have different factual requirements – a bill of particulars in Section 111 cases may make sense. Because the government had both theories available here, this win meant a reversal for retrial on the “attempt to assault” prong – instead of a flat appellate reversal. Id. at *10.
For Further Reading: It was a big week for San Diego. In Aguilar-Turcios v. Holder, 2012 WL3326618 (9th Cir. Aug. 15, 2012), amicus San Diego A.F.D. Steve Hubachek brings home a big win for Aguila Montes de Oca jurisprudence. Judge Paez’s opinion carefully dissects an AMdO issue in the immigration context and ultimately concludes a military conviction doesn’t qualify (much to dissenting Judge Bybee’s chagrin.) An important victory, particularly in the immigration context -- worth a close read.

Image of the Honorable Dorothy W. Nelson from

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


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Wednesday, August 15, 2012

U.S. v. Acosta-Sierra, No. 10-50575 (08-15-12) (Nelson with Gould and Ikuta).
Need a guide to assault on a federal officer in violation of 18 USC 111?  This is the opinion to turn to. The defendant here threw a rock at a Border Patrol agent, and later punched a guard coming to escort him. Yes, one should limit their rock throwing to glass houses, but the defendant had a history of paranoid schizophrenia. At the bench trial, the defendant was convicted of both counts. On appeal, the 9th reversed the rock throwing conviction on the basis that the agent did not know the rock was thrown at him until after it clanged against a metal fence. The court should have analyzed the assault under the prong of "attempted battery" rather than "causing a threat." (Yes, there are two prongs or ways of looking at common law assault). Moreover, the court should have used an intent analysis or it threatened to turn the offense into a strict liability one. The 9th did not grant the Rule 29 claim because there was sufficient evidence to possibly convict on the attempt theory. Alas, for the second count, the 9th affirmed, rejected the argument that 18 USC 111 actually requires specific intent. The 9th stuck by precedent in holding that it is a general intent crime, and therefore he could not introduce diminished capacity evidence. The district court also did not err in precluding diminished capacity evidence to show that the defendant acted in perceived self defense. The 9th stated that an objective reasonableness to a guard's acts was the standard here.

Congratulations to Jasob Ser of the San Diego Federal Defenders.

Sunday, August 12, 2012

Case o' The Week: SOS on GPS -- Pineda-Moreno and GPS tracking

Two years ago, almost to the day, Chief Judge Kozinski dissented from the denial of rehearing en banc on the first Pineda-Moreno decision (a seminal Fourth Amendment decision tolerating warrantless GPS tracking). He complained:

The Supreme Court in Knotts expressly left open whether twenty-four hour surveillance of any citizen of this country by means of dragnet-type law enforcement violates the Fourth Amendment’s guarantee of personal privacy. When requests for cell phone location information have become so numerous that the telephone company must develop a self-service website so that law enforcement agents can retrieve user data from the comfort of their desks, we can safely saw that such dragnet-type law enforcement practices are already in use. This is precisely the wrong time for a court covering one-fifth of the country’s population to say that the Fourth Amendment has no role to play in mediating the voracious appetites of law enforcement.

United States v. Pineda-Moreno, 617 F.3d 1120, 1126 (ord.) (Kozinski, C.J., dissenting from denial of reh'g en banc) (quotations and internal citation omitted); see also blog describing dissent here).

   Two years, a Supreme Court decision, and another Ninth Circuit opinion on the case have come and gone  --- and the Chief still does not have a square answer to his righteous Fourth Amendment beef. United States v. Pineda-Moreno, 2012 WL 3156217 (9th Cir. Aug. 6, 2012), decision available here.

Players: Decision by Judge O’Scannlain, joined by Judges N.R. Smith and DJ Wolle. 

Facts: The DEA suspected Pineda-Moreno of running a marijuana grow. Id. at *1. With no warrant, they snuck onto his driveway and installed a tracking device on his Jeep. Id. Agents also stuck tracking devices to the Jeep while it was parked on public streets. Id. The tracking data (and info from earlier surveillance) lead to arrests, searches, and a federal prosecution. Id. Pineda-Moreno challenged the search, the original panel upheld it, a closely-divided en banc vote failed, cert. was filed. 

The Supremes then decided United States v. Jones, 132 S.Ct 945 (2012). “Jones holds that the government’s installation of a Global Positioning System (GPS) tracking device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’ under the Fourth Amendment.” Id. at *2 (citing Jones, 132 S. Ct. at 949). The Supreme Court remanded Pineda-Moreno in light of Jones.

Issue(s): “In this matter which arose prior to the Supreme Court’s decision in . . . Jones . . ., we must decide whether to apply the exclusionary rule where law enforcement agents attached mobile tracking devices to the underside of a defendant’s car and used those devices to track the car’s movements.” Id. at *1.

Held: “[T]he agents’ conduct in attaching the tracking devices in public areas and monitoring them was authorized by then-binding circuit precedent. Those attachments yielded the critical information that justified stopping Pineda-Moreno. Whatever the effect of Jones, then, the critical evidence here is not subject to the exclusionary rule.” Id. at *3 (citation and footnote omitted).

Of Note: Nice, one supposes, to have the Court acknowledge the new Supreme Court law on curtilage intrusions, and conceding that cell tracking is a “search.” Id. at *3. The battle has shifted, however, to another front: the Leon / Herring / “Good Faith” pass for unlawful searches (a trend manifested most lately in Davis v. United States, 131S. Ct. 2419 (2011)). 

Relying on Davis, Judge O’Scannlain concludes that these lousy searches survive suppression because – even if unconstitutional – they were authorized by Ninth precedent when undertaken. Id. at *3. “Davis held that ‘searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.’” Id. at *2 (citation omitted). Flag Davis – its frustrating tolerance of unconstitutional searches will be the subject of many brouhahas this year.

How to Use: Whole swaths of Ninth law were (we think) mowed down by Jones: a possibility conceded by Judge O’Scannlain in Pineda-Moreno. Id. at *4 (discussing McIver, Hufford, Miroyan, Maisano and Magana). To echo C.J. Kozinski’s “1984”theme from the original litigation of this case, ‘tis now a Brave New World. If your case involves warrantless cell tracking, or trespassing onto a driveway, don’t be dissuaded by old Ninth law – Jones will have most or all of those cases in the dustbin by next summer. 
For Further Reading: If this all seems vaguely familiar, think back to the Ninth post-Gant. A very similar question of retroactivity and Herring came up after that Supreme Court Fourth Amendment decision. The Ninth decided it precisely the right way, that time. See United States v. Gonzalez, 598 F.3d 1095 (9th Cir. 2010) (ord. denying reh’g en banc); see also blog entry here.  

  The only glitch? Gonzalez preceded the Supreme Court’s decision in Davis by a year. 

 Image of GPS tracking from

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


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Friday, August 10, 2012

U.S. v. Henry, No 11-30181 (8-9-12) (M. Smith with Goodwin and W. Fletcher).
What is Heller, and its affirmation of Second Amendment rights, good for if not to be possess homemade machine guns?  And what right does Congress have to use its commerce clause powers to restrict machine gun ownership?  These arguments take aim at the restrictions placed on possessing machine guns, and seek to overturn convictions for, you guessed it, possession of said machine guns.  Unfortunately for adherents of Heller, and for this defendant, the 9th holds that machine guns are "dangerous and unusual weapons" that fall outside of Second Amendment protection.  Moreover, Congress does possess the commerce clause power to ban machine guns.

U.S. v. Flores-Mejia, No. 11-50340 (8-9-12) (Bybee with B. Fletcher and Wardlaw).
The 9th reaffirms that robbery under Calif Penal Stat 211 is a categorical "crime of violence" under 2L1.2's enumerated offenses.

Wednesday, August 08, 2012

U.S. v. Huang, No. 10-10389 (8-8-12) (Callahan with Schroeder and N. Smith).
The 9th rejects a sentencing entrapment argument. The defendant here had the intent and capacity to produce more than 900 grams of meth and acted without hesitation. Unfortunately, the 9th also holds that a defendant need not be personally involved in importing drugs to get the importation adjustment under 2D1.1(b)(5). The government needs to show that the drugs were indeed imported. This follows the 5th and 11th Circuits. Left open is whether the adjustment requires the defendant to have actual knowledge. That is not an issue here, because the defendant, under the facts, knew the drugs came from abroad. The sentence was not unreasonable.

Tuesday, August 07, 2012

Two AFPD wins:

U.S. v. Bustamante, No. 11-50075 (8-7-12) (B. Fletcher with Wardlaw; dissent by Mendez, D.J., E.D. Ca.).
An affidavit filed from the Philippines in 1975 purporting to substitute for an original or actual birth certificate stating that the defendant was born in the Philippines runs afoul of the Confrontation Clause. This was not a foreign document or an administrative record, but had been prepared specifically for an investigation by the Air Force into the defendant's citizenship (he served in that branch and was honorably discharged).  In this prosecution for illegal re-entry and false statements, the affidavit was key, and the bedrock principles of Crawford and Confrontation required cross examination. The government's case was strong, having other evidence of his birth in the Philippines, but this went to the key issue. Dissenting, Mendez would find a confrontation violation but, in light of the government's case, would hold it harmless.

Congratulations to AFPD Davina Chen, FPD C.D. Ca. (Los Angeles).

U.S. v. Turner, No. 11-10038 (8-7-12) (Mckeown with Noonan; dissent by N. Smith).
Be careful what you wish for. This applies to the government, who moved for civil commitment of the defendant after he completed his criminal sentence. He waited almost five years for a hearing, and when he did get it, the court held in his favor, holding that the government had not proved he was a danger. In the meantime, he had moved for termination of his SR.  The 9th held that in fact his SR was terminated, because he was not being held criminally, but under a civil statute. The 9th examined various statutory provisions, defining imprisonment and SR, and also applied the rule of lenity. The crux was that the confinement was civil in nature. Dissenting, Smith argued that labeling confinement civil or criminal did not remove the fact that he was held in custody for that time, and to characterize the period as not imprisonment is error. Of course he adds what a wonderful thing SR is, allowing an integration into society, and the lack of such a period does a great disservice. Still, he is uneasy with characterizing being held in custody under Adam Walsh as not imprisonment.

Congratulations to AFPD David Galloway, FPD E.D. Ca. (Sacramento).

Monday, August 06, 2012

Jackson v. State of Nevada, No. 09-17239 (8-6-12) (Reinhardt with Murguia; dissent by Goodwin).
In habeas, the 9th concludes that the district court erred in denying relief to petitioner. The petitioner was convicted of sexual assault in state court (Nevada). The trial court had precluded evidence that the complainant victim had made false accusations of rape previously. The court ruled it was immaterial. This was error. It was also error for the state courts to rule that the petitioner's counsel had failed to give advance notice of bringing in past accusations as required under state law to allow for a hearing.. His counsel had alerted the state of his intent by providing the information. The decisions of the state court violated the petitioner's right to mount a defense, and excluded highly relevant and material evidence. The state court's decision was an unreasonable application of Supreme Court precedent. Dissenting, Goodwin argued that lack of notice was really an IAC claim, and that the state court's application of its notice requirement was reasonable under AEDPA.

Congratulations to Lori Teicher, AFPD, in the Nevada Office (Las Vegas).

U.S. v. Pineda-Moreno, No. 08-30385 (8-6-12) (O'Scannlain with N. Smith and Wolle, D.J. from the S.D. Ill).
This case involved attaching tracking devices to the underside of cars. The police placed tracking devices while the defendant's car was either on the street on in the defendant's open driveway, with no privacy signs. The case was on cert when the Supremes remanded in light of Jones. Assuming that such searches now would be unreasonable under Jones, the 9th still upholds the searches because, under precedent at teh time, the police were acting in "good faith" and had followed circuit precedent.
Dickens v. Ryan, No. 08-99017 (8-3-12) (N. Smith with Rawlinson; dissent by Reinhardt).
Disclosure: This is an AZ FPD case.
The petitioner was essentially a getaway driver in a robbery where the co-defendant murdered two victims in a robbery.  The petitioner knew of the robbery, provided the weapon, but did not plan, or know of, the murder.  The petitioner claimed that under Enmund v. Florida, 458 US 782 (1982), it was an Eighth Amendment violation to sentence him to death given his attenuation.  The 9th disagreed, affirming the denial, because the Arizona supreme court's application of Enmund and Tison was not unreasonable under AEDPA deference and its interpretation of the facts were reasonable.  Petitioner also raised IAC for sentencing.  The 9th found the claim procedurally barred but remanded to determine if he could prove cause and prejudice under Martinez v. Ryan, 132 S.Ct. 1309 (2012).  Dissenting, Reinhardt argues that the state supreme court's application of Enmund and Tison was contrary to federal law, and that its interpretation of the facts was unreasonable.

Saturday, August 04, 2012

Case o' The Week: Short King Packs Punch - En Banc King and Probation Searches

King Pepin the Short, King of the Franks

Pepin proved it to the Franks in the Eighth Century: a King can be both short, and powerful.

The Ninth proved the same last week. United States v. King, 2012 WL 3104611 (9th Cir. Aug. 1, 2012) (en banc), decision available here.

Players: Big win for ND Cal AFPD Dan Blank and R&W Attorney Steven Koeninger. Per curiam, en banc decision.

Facts: In Samson, the Supreme Court distinguished a parolee from a probationer in the context of the Fourth Amendment. 547 U.S.843 (2006). The Supremes explained that parolees have a lower expectation of privacy than probationers. 

The Ninth, however, has decades of law that equates the two – and that permits suspicionless searches of probationers. Id. 

In the present case, King was a probationer. A gun was found when his bedroom was searched without “reasonable suspicion.” See United States v. King, 672 F.3d 1133, 1139 (9th Cir. 2012) (three judge panel decision). The district court upheld the search. 

King then argued in the Ninth that after Samson, reasonable suspicion was required for probation searches. The three-judge panel upheld the search under Ninth authority that permits probation searches without any suspicion -- though Judges Graber and Berzon urged en banc review in a concurring decision. Id. at 1139, see also blog here (discussing Judge Graber's earlier concurrence in Baker). 

Issue(s): Do probationers and parolees have identical expectations of privacy (i.e., none) after Samson?

Held:We overrule Motley v. Parks, 432 F.3d 1072 (9th Cir. 2005), the precedent on which it relies, Moreno v. Baca, 400 F.3d 1152 (9th Cir. 2005), and United States v. Harper, 928 F.2d 894 (9th Cir. 1991), and later cases that rely on it, including United States v. Baker, 658 F.3d 1050 (9th Cir. 2011), Sanchez v. Canales, 574 F.3d 1169 (9th Cir. 2009), and United States v. Lopez, 474 F.3d 1208 (9th Cir. 2007), to the extent they hold that ‘there is no constitutional difference between probation and parole for purposes of the fourth amendment.Motley, 432 F.3d at 1083 n.9 (internal quotation marks omitted). These cases conflict with the Supreme Court's holding that ‘parolees have fewer expectations of privacy than probationers.’ Samson v. California, 547 U.S. 843, 850 (2006). United States v. King, 672 F.3d 1133 (9th Cir. 2012), is vacated, and the case is referred to the original panel for disposition consistent with this opinion.”

Of Note: That “holding” quote above? That’s the entire en banc opinion. But very good things come in small packages. In one fell swoop, the Court wipes out two decades of lousy precedent that effectively stripped probationers of all Fourth Amendment rights. 

What will be the new search standard for probationers? That important question rests in the hands of Judges Graber, and Berzon and Tallman as the issue returns to the original three-judge panel. Stay tuned – their King decision will be a lead Fourth Amendment case in the Ninth.

How to Use: If your case involves a probation search, the cops probably got it wrong. Law enforcement officers have been actively advised that “reasonable suspicion” is not required for a probation search. See e.g., article for law enforcement here

That is very likely untrue. Until the dust settles, the equation is simple: probation search = King + suppression motion.
For Further Reading: In Northern California, cops have been pairing with probation officers to conduct suspicionless searches of probationers – because (and we quote) they “all share the same pool of dirtbags!!” For some refreshingly candid law enforcement discussions on their use (and abuse) of probation searches, visit their eye-opening forum here . (“My S.O. brothers lick their chops when they find out a subject is on felony probation with full search and seizure conditions. Warrantless entry with no need for PC is sooooo nice!!”) 

Image of King Pepin the Short, King of the Franks, from

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


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