Wednesday, October 31, 2012

U.S. v. Johnson, No. 11-30256 (10-30-12) (Clifton with Silverman and N. Smith).
The past is never past; it is always present.  Especially when it comes to prior sex offenses, even ones two decades old.  Here, the defendant was convicted of being a prohibited possessor.  He was placed on SR. As a condition, he was ordered to undergo a sexual offender assessment.  The defendant had two prior convictions (both rapes, one of a minor, and with a weapon involved).  He had a prior assessment done, while incarcerated, but it could not be located.  He appealed the condition, arguing that the priors were too stale, and that the present offense was not a sex offense.  The 9th affirmed the condition, holding that the district court did not abuse its discretion.  The condition was only an assessment, not treatment, and the present offense involved a firearm, as did one of the two prior sex offenses, both of which were violent. There was enough of a connection, and the assessment was ordered when a previous one was lost.

Stankewitz v. Wong, No. 10-99001 (10-29-12).
This was summarized yesterday. However, it should be noted (and was not in the summary) that this was a tremendous victory for AFPD Harry Simon, ED Calif (Sacramento). Congratulations.

Monday, October 29, 2012

U.S. v. Aguilar-Vera, No. 10-10333 (10-29-12) (Bea with Wallace and Nelson)
Note: This is a District of Arizona case
In another appeal from "Operation Streamline" (the en masse prosecution and sentencing of immigration defendants occurring in Arizona), the 9th again finds error in the procedure -- and again finds the error to be harmless. To reprise the situation, previous challenges have gone to how the defendants are advised of their rights, the timing between advising and the entry of the guilty plea, the number of defendants individuality addressed, and their rights. The cases have found errors in the process, but no prejudice. Here, the defendant, through counsel, timely asked for the court to ensure that the plea was in fact voluntarily. The advising of rights had occurred an hour previously, the groups were around six, and the defendant was going to get some time. The court acknowledged the request, but never followed up. The 9th acknowledged error, but under the record, it was clear that the defendant wanted to plead guilty, and was aware of his rights and what the sentence was going to be. The finding of prejudice is always hard in these types of cases, but at least the challenges are ensuring some attention to procedure and some individualized colloquies. The argument for a due process violation as to procedures was already foreclosed by prior precedent, although defendant preserved it for further review.

Stankewitz v. Wong, No. 10-99001 (10-29-12) (Fisher with Bybee; dissent by O'Scannlain)
Eight years ago, the 9th had remanded to the district court a colorable claim of IAC in sentencing mitigation for an evidentiary hearing to allow the state an opportunity to rebut the allegations. The state chose not to mount an evidentiary hearing, but to proceed on an expanded record. The district court found that the state had failed to rebut the allegations and ordered relief. The 9th affirms. The 9th reviewed the record, and found that counsel was ineffective in investigating and presenting extensive substantial mitigation as to childhood abuse, addiction, and mental health. The state does not get another chance. O'Scannlain dissents, arguing that the district court had no guidance as to the standards for ineffectiveness and prejudice Strickland.  The Supremes had indicated that in reviewing decisions, it had to be all evidence, and the threat of opening doors had to be factored in. Here, the limited mitigation presented (basically in the "power of God" to reform) was made to prevent other aggravating evidence to come in. It should be respected.

Sunday, October 28, 2012

Case o' The Week: A Good Win, and a Tremendous Loss -- Wolf Child and Conditions of Supervised Release

The Honorable Judge Betty Fletcher

An important win in the Ninth is sadly overshadowed this week, by the loss of one of the Ninth’s (and nation’s) leading jurists: the Honorable Betty Binns Fletcher.

United States v. Wolf Child, 2012 WL 5200347(9th Cir. Oct. 23, 2012), decision available here.

Players: Big win for Dan Donovan, Federal Defenders of Montana alumnus. Decision by Judge Reinhardt, joined by Judges Schroeder and M. Smith.  

Facts: Wolf Child pleaded guilty to attempted sexual abuse of a 16-year old. Id. at *1- *2. At sentencing, the district court imposed a contested special condition of supervised release. Id at *1.. The court prohibited Wolf Child from residing with, or being in the company of, any child under the age of 18 – including his fiancée, and daughters – without prior written approval of his probation officer. Id. The court imposed this condition “on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members.” Id.

Issue(s): “Wolf Child . . .  appeals [the] special condition of supervised release . . .” Id. at *1.

Held: “We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a ‘particularly significant liberty interest.’ The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary. Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child's relationship with the affected family members, it committed procedural error with regard to these specific individuals. Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child's ability to reside or socialize with his own children and with his fiancée is substantively unreasonable. In addition, we conclude that special condition 9 is overbroad both by virtue of prohibiting Wolf Child from being in the company of any child under the age of 18 under any circumstances and by similarly prohibiting him from dating or socializing with anybody who has children under the age of 18, regardless of the circumstances, without prior approval of his probation officer." Id. at *1.

Of Note: Judge Reinhardt writes a beautiful explanation of review of conditions of supervised release – a highly-commended primer. Id. at *3-*4. The broad Carty/Zavala deference familiar at sentencing does not flatly apply in this context: instead, when conditions of supervised release implicate a “particularly significant liberty interests” greater individualized showings are required (and greater appellate scrutiny merited). Id. at *3.

How to Use: Wolf Child immediately reverberated in the district courts. In N.D. Cal., one careful DJ has already put the government on notice of Wolf Child’s requirements for individualized showings. It is a timely decision: Probation now routinely seeks non-individualized and intrusive S.R. conditions, parroting blanket requirements dictated by D.C. (including mandatory polygraphs for putative “treatment”, with no non-pros protections.) Wolf Child is a welcome tool to fight Probation’s “one size fits all” approach to supervised release.   
For Further Reading: Our country lost a legendary advocate for justice with the recent passing of the Hon. Judge Betty Fletcher. Others have commented on her historical role in the Ninth. See New York Times article here

         We here pay tribute to Judge Fletcher’s extraordinary contributions to the defense of indigent clients. In sentencing, in Fourth Amendment litigation, in criminal discovery, and in capital cases, Judge Fletcher was always a voice for the voiceless, a powerful defender of the powerless, and a fierce protector of constitutional protections. For a small slice of her remarkable legacy in federal criminal justice jurisprudence, see collection of blogs here.

Everyone has their favorite B. Fletcher opinion. For sheer intellectual honesty, beauty in legal writing, dogged independence, and good old-fashioned Liberal instincts, ours is her post-Apprendi dissent on acquitted conduct in sentencing, in United States v. Mercado, 474 F.3d 654, 658 (9th Cir. 2007), summarized here.

     A tremendous loss to the Ninth, and to everyone dedicated to the defense of indigent clients.

Image of the Honorable Judge Betty B. Fletcher from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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Tuesday, October 23, 2012

U.S. v. Wolf Child, No. 11-30241 (10-23-12) (Reinhardt with Schroeder and M. Smith).
Imposing conditions of SR on a defendant convicted of attempted sexual abuse on a minor child (16) while she was passed out at a party on an Indian Reservation, the district court prohibited any contact with his own daughters under the age 18 and prohibited him from dating anyone who had children under the age of 18.  The prohibitions were flat, complete, without exception, with no evidence presented as to why and no findings.  Defendant objected.  The judge replied:  "I understand. You may take that issue to the circuit if you wish to do so, counsel."  He did.  And the 9th vacated and remanded.  The 9th found that certain of the conditions violated fundamental familial associations without a basis in the record or in an individualized review.  The 9th held such conditions relating to his daughters and fiancee were substantively unreasonable and could not be reimposed on remand.  The 9th expressed concerns about other restrictions and held that the court, on remand, needed to exercise its discretion to determine if such conditions as to association were necessary and if so, to more narrowly tailor them, based on findings.

Congratulations to Dan Donovan, Deputy Federal Defender, Federal Defenders of Montana (Great Falls).

Sunday, October 21, 2012

Case o' The Week: Too Poor to Pay, High Sentence OK - Rangel, Restitution, and Sentencing

Carlo Pietro Giovanni Guglielmo Tebaldo Ponzi

With thousands of eager marks desperate for relief from foreclosure, this is a wonderful era for modern fraud artists with new spins on old Ponzi schemes.

(Unless, of course, you happen to get caught). United States v. Rangel, 2012 WL 4857207 (9th Cir. Oct. 15, 2012) (ord. amend. & denying reh’g en banc), decision available here.

Players: Decision by Judge Clifton, joined by Judges Farris and Ikuta.

Facts: Rangel defrauded lots of folks of lots of money in a classic Ponzi scheme that included mortgage fraud. Id. at *1-*2. He pleaded guilty to a deal wherein the parties jointly recommended 180 months of custody. Id. at *1.

The district court busted the deal, and then varied upwards to an above-guideline term of 264 months. Id. at *2. The district court gave no notice of its intent to impose a sentence above the guidelines. Id. at *4.

During the sentencing hearing the court “inquired into Rangel’s ability to pay restitution to his victims . . . the court was informed that Rangel was not in a position to pay any restitution toward the victims’ losses.” Id. at *2.   

Issue(s): “Rangel argues that the district court erred in considering his inability to pay restitution to his victims in determining his sentence.” Id. at *5.

Held: “We conclude that the court did not abuse its discretion in considering the serious financial impact Rangel’s crimes had on his victims.” Id. “The district court in this case did not consider Rangel’s inability to pay restitution itself as an aggravating factor in imposing a longer sentence, but focused instead on the impact on the victims of Rangel’s crimes.” Id. at *6. “Consideration of the impact on the victims was appropriate.” Id.

Of Note: This case brings to mind an analogous spin on Acceptance of Responsibility. When we first challenged the Acceptance Guideline, USSG § 3E.1.1, we were assured the approach was constitutional because the guideline didn’t punish for going to trial – it instead rewarded pleas of guilt. (?!?) See generally United States v. Gonzalez, 897 F.2d 1018, 1020 (9th Cir. 1990).

Here, the Ninth assures us that Rangel didn’t receive a higher sentence because he was poor and couldn’t pay back the victims (which would be unconstitutional). Id. at *5. Instead, Rangel received his whopping above-guideline sentence because the lack of restitution had a big impact on the victims – and that factor is fair game for a higher sentence. Id. at *6. 

For those of us who defend indigent clients, Rangel’s distinction is a bit of a head-scratcher –- and a close look at the amended language at the outset of this order doesn’t do much to reassure the reader that Rangel isn't being punished for poverty.

How to Use: Another holding of Rangel is the unsurprising conclusion that no notice is required for an upward variance under § 3553(a) (in contrast to an upward departure from the guidelines). Id. at *4. Beware that you can get blindsided with an above-guideline sentence, with no notice, if a district court is simply careful enough to characterize higher term as a Booker variance instead of an upward departure. (Although, as a matter of general fairness, a district court should voluntarily give notice of an upward variance for the same reasons it is required for an upward departure under Fed. R. Crim. Proc. 32(g)).
For Further Reading: Rangel was sentenced to whopping twenty-two years in federal custody, even though he had not inflicted any violence on any victim -- over two decades of incarceration for fraud. Id. at *1. While it appears that defense counsel did a yeoman’s effort pitching mitigating arguments, id. at *2, could more mitigation work have lowered this high term? Do capital counsel, with their years of expertise in mitigation work, have lessons to teach us for white collar defense? That’s the thesis of an interesting new piece by Professor Todd Haugh, Can the CEO Learn from the Condemned? The Application of Capital Mitigation Strategies to White Collar Cases, Amer. Univ. L. Rev. Vol. 62, 2012, available here.

Image of Charles Ponzi from

Steven Kalar, Federal Public Defender N.D. Cal. FPD. Website at


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Wednesday, October 17, 2012

Lambright v. Ryan, No. 10-99012 (10-17-12) (Reinhardt with Schroeder; dissent by Callahan).
Note: This is an Az FPD CHU case.
The 9th faces an appeal concerning what is, and what is not, privileged under a protective order issued by the district court as a result of an IAC hearing, and then remand for resentencing. Yes, it is very technical, and concerns what information, given as to IAC and relating to attorney-client conversations and the privilege against self incrimination, is now protected under the order and unavailable to the Pima County prosecutors in the resentencing. The 9th holds that the district court abused its discretion in holding that its protective order only applied to privileged materials produced after the issuance, the materials produced at the hearing were not covered because of a failure to move for sealing, and that the petitioner failed to justify the privilege. The matter is remanded to allow the petitioner to assert his privilege. Dissenting, Callahan would find that the district did not abuse its discretion, and that the petitioner failed to adequately assert the privilege and that the privilege itself.
Congratulations to AFPD Jennifer Garcia and R&W Keith Hilzedenger of the CHU of the FPD Az.

U.S. v. Peppers, No. 11-30322 (10-17-12) (per curiam with Black, Graber and Rawlinson).
The defendant appeals from his conviction for assault on a federal officer, arguing that the court erred in combining model jury instructions of assault on a federal officer with self defense.  The 9th found no error, as the combined instruction stated the elements, self defense, and placed the burden on the government to prove all elements.

Sunday, October 14, 2012

Case o' The Week: Ninth Stops Short of Sequestration Cliff - Valencia-Riascos, FRE 615, Witness Sequestration and "Case Agents"

A government witness who is allowed to sit in during the entire trial, hear all defense cross-examinations before testifying, and alter his or her testimony in response – that’s called a violation of Federal Rule of Evidence 615, and probably a due process violation, to boot.

(Unless the witness is a cop – in which case, the proper term is, “case agent.”)

The Honorable Judge Susan Graber
United States v. Valencia-Riascos, 2012 WL 4826968 (9th Cir. Oct. 11, 2012), decision available here.

Players: Decision by Judge Graber (left). Hard-fought and creative challenge by Ass’t Federal Defender Rebecca Pennell, Federal Defenders of E. Wa. & Idaho.

Facts: Valencia-Riascos tussled with ICE Agent Miller while being fingerprinted in custody. Id. at *1. He was charged with a Section 111 assault. Id. 

At trial, Valencia-Riascos objected under Federal Rule of Evidence (FRE) 615 to Agent Miller’s presence in the courtroom, asking that he be barred as a witness or – alternatively – required to testify first. Id. The district court denied those requests, allowing Agent Miller to be designated as a “case agent.” Agent Miller testified at the close of the prosecution’s case-in-chief as the only eyewitness to the assault. Id. 

 The district court additionally refused to give the defendant’s requested jury instruction, cautioning the jury not to give any added weight to the testimony of a law enforcement witness. Id.

Issue(s): “Defendant Nilson Herney Valencia–Riascos appeals the district court's denial of his requests to limit the courtroom presence of a law enforcement officer who was the prosecution's main witness. Defendant argues that the district court abused its discretion and denied him due process by declining to exclude the officer from the courtroom, by allowing the officer to sit at the prosecution's table, and by declining to require the officer to testify first.” Id. at *1.

Held: “We affirm. Federal Rule of Evidence 615 requires a district court to permit a designated officer to be present during trial. Any related decisions are discretionary. No abuse of discretion or due process violation occurred in this case.” Id.  

Of Note: The core FRE 615 holding is disappointing, but not without precedent. See id. at *1. The new aspect of this frustrating “case agent” law is Rebecca’s creative challenge based on the “Justice for All Act of 2004 / CrimeVictims’ Rights Act (‘CVRA’).” Id. The defense argued that the 2004 CVRA supplemented FRE 615 (enacted in 1974). Id. at *2. Specifically, Valencia-Riascos correctly argued that the CVRA allows victim-witnesses to observe the trial when the district court determines that testimony by the victim will not be “materially altered if the victim heard other testimony at that proceeding.” Id. (There was no such finding in this case). 

Judge Graber, unfortunately, disagreed, extends a holding from a 2006 Ninth decision, and concludes that a cop/victim/witness can attend a trial either as a FRE 615 case agent or as a CVRA “victim.” Id. at *3.  

How to Use: FRE 615 “case agent” fiction is a galling rule that allows cops to hear the defense cross, learn the theory of the defense, and – “adjust” – their testimony accordingly. To help us fight this unfair advantage, Valencia-Riascos gives us a shred of helpful dicta: “[W]e observe that it may be good practice to require case agent witnesses to testify first, but we decline to adopt a presumption that would deprive the prosecution of the opportunity to present its own case without interference.” Id. at *4 (footnote omitted).

Note that there remains an unexplored corner of the “case agent” rule – the defendant here did not “challenge the constitutionality of [FRE 615],” and under the circumstances of this case the Court saw “no due process violation.” Id. at *3. A general, constitutional, due process challenge to FRE 615’s “case agent” gambit arguably remains unresolved in the Ninth. But see contra United States v. Charles, 456 F.3d 249, 258-60 (1st Cir. 2006).  
For Further Reading: Cramped readings of FRE 615’s sequestration rule (like the case-agent routine) make for tainted witnesses, bad fact-finding, and trials that don’t get at the truth. For a compelling argument urging a broad reading of FRE 615, see Sarah Chapman Carter, Exclusion of Justice: The Need for a Consistent Application of Witness Sequestration Under Federal Rule of Evidence 615, 30 Univ. Dayton L.Rev. 63 (2004).

Image of the Honorable Judge Susan Graber from

Steven Kalar, Federal Public Defender N.D. Cal.   Website at


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