Wednesday, November 28, 2012

U.S. v. I.E.V., Juvenile Male, No. 11-10337 (11-28-12) (N. Smith with Christen; dissent by Kozinski)
One hundred miles from the border, a vehicle stopped at a Border Patrol checkpoint.  A police dog alerted, and the vehicle was sent to secondary.  The juvenile defendant was a passenger in the vehicle driven by his brother.  Upon exiting, the dog failed to alert to the defendant or driver.  A search of the vehicle came up empty. The juvenile was not threatening nor likely to flee.  The officer did frisk the juvenile, and found a brick of marijuana taped to his back.  At the hearing, the officer said he thought the juvenile acted nervous, but the court did not credit that observation because it was not in the report.  The officer also testified that he was trained to expect find guns where there were drugs.  The court permitted the search because of the proximity of the border, the canine alert, the officer training, and the nervousness of the brother -- not the juvenile.  The 9th reverses the denial of suppression.  Terry permits a frisk, but it has to be based on specific and articulable facts.  These were not.  The defendant was non-threatening.  There was no fear of flight.  A search had come up empty.  It appeared that the frisk was to further the investigation, which is not the rationale of Terry.  Moreover, the frisk exceeded the constitutional limits, as it went beyond the outer clothes.  The officer felt a bundle, and asked what it was, and then immediately pulled up the juvenile's shirt.  There was no testimony as to whether the officer was concerned.  Dissenting, Kozinski characterizes the majority's opinion was both "wrong" and "dangerous."  Kozinski would find sufficient specific facts, and the danger to officers.  Kozinski, in his usual punchy style, thinks it is easy for the majority to parse the different facts, and assume what the officers were feeling, in the safety of a courthouse, while he would be apprehensive, as would be the officers, out at a checkpoint, where defendants exited from a vehicle upon which dogs alerted.

U.S. v. Munguia, No. 10-50253 (11-27-12) (Fletcher with Reinhardt; concurrence by Breyer, D.J. ND Ca)
The 9th reverses convictions for conspiracy to possess and possession of pseudoephedrine, a drug used to manufacture meth.  The reversal was for an erroneous jury instruction on knowledge.  The instruction given was to view the evidence of whether the defendant knew or had reasonable cause to believe the drug would be used to make meth from the vantage of an objective reasonable person.  the vantage should be from the defendant.  The evidence was to be assessed not from a hypothetical reasonable person from someone standing in the defendant's shoes.  The 9th's precedent established this, and the instruction given was erroneous.  It was not harmless because the trail was whether she knew, as testified by her ex boyfriend turned gov't cooperator, or whether, as an abused girlfriend, with limited education and language skills, she didn't know.  The concurrence emphasized that the decision was not an open door to all marginal evidence, but the evidence had to be relevant, and not prejudicial.  The 9th sidestepped the issue of whether an expert could testify as to the defendant's mindset as an abused girlfriend.  The court could decide in light of the jury instruction and evidence at trial.

U.S. v. Wahchumwah, No. 11-30101 (11-27-12) (M. Smith with Kozinski and Tashima)
The 9th held two sets of counts as multiplicitous and ordered the court to vacate one conviction of the two pairs.  The multiplicitous convictions arose from selling Golden Eagle parts (tail feathers) in violation of the Eagle Protection Act and the Lacey Act (counts 2 and 3) and from the offering to sell and then selling eagle plumes under the Eagle Protection Act.  Blockberger requires that the statutes each have additional elements.  These did not

Tuesday, November 27, 2012

U.S. v. Scott, No. 11-10529 (11-26-12) (Bybee with Arnold (Sr. CJ 8th Cir); concurrence by Rawlinson).
This case revolves around whether the government waived its argument for an automobile exception. The 9th found it had not, and reversed the district court's suppression as there was probable cause and the automobile exception applied. The defendant was served a writ of execution on his home by a constable. Unfortunately for the defendant, the constable smelled marijuana and saw the defendant with a lot of cash, and he called the police. The police responded, and found cash and drugs. The police were aware that the defendant had been going back and forth to his car in the driveway and so the police searched it and found a firearm and cocaine. The defendant filed a motion to suppress. The government failed to respond to the issue on its merits, although at the suppression hearing before the magistrate, the government did address the car exception orally and subsequently filed objections to the magistrate's suppression order. The district court adopted the suppression recommendation. On appeal, the 9th held that the government had not waived its objection, and the defendant had not waived its waiver argument. On the merits, the 9th held that the automobile exception applied, and there was ample probable cause for a search. Rawlinson, concurring, did so to stress that the government dodged a bullet: if the court had addressed the waiver issue, and held the government had waived, then the government likely would have been out of luck.

Sunday, November 25, 2012

Case o' The Week: Lies, Damn Lies, and Obstruction -- Manning, Obstruction of Justice, and Recantations

Can obstruction apply to lies on a previous case, when a defendant recants, and when the lies thus have no impact on the prosecution or sentence?

Yes, yes, and yes again.

United States v. Manning, 2012 WL 5871715 (9th Cir. Nov. 21, 2012), decision available here.

Players: Per curiam decision by CJ Kozinksi, and Judges Tallman and Ikuta.

Facts: Manning was allowed to self-surrender on a child-porn sentence. Id. at *1. His Pretrial officer got a tip that Manning had guns, in violation of his release terms. Id. When confronted, Manning denied having the guns – then later admitted that he had them and had returned them. Id. The Pretrial Officer advised Manning to call his lawyer. Id. Manning did not show up to the bail revocation hearing, was later arrested in Mexico and returned to the U.S., and ultimately pleaded guilty to felon-in-possession of a gun. Id. At the § 922 (gun) sentencing, Manning was hit with a two-level obstruction enhancement under USSG § 3C1.1. Id. The court gave four reasons for the obstruction hit: Manning’s “willful failure to appear as ordered for a judicial proceeding; his giving false statements to officials of the Court about firearms; his reacquisition of one of the firearms; and his flight to Mexico.” Id.

Issue(s): 1. Obstruction on prior case: “Manning argues that his evasive acts don’t qualify under section 3C1.1 because they were designed to obstruct justice in his child pornography case, not his subsequent felon-in-possession case, which is the ‘instant offense of conviction’ and subject of this appeal.” Id.

2. Materiality of obstruction after recantation: “Providing materially false information to a pretrial services officer, whose job it is to conduct investigations for the court, constitutes obstruction of justice for purposes of section 3C1.1, without a specific showing that the falsehood actually obstructed justice. A ‘material’ statement is one that, if believed, would tend to influence or affect the issue under determination. Manning twice tried to mislead [the Pretrial Officer] by telling him he'd returned the guns to his brother as soon as he began pretrial release. Relying on . . . Yell, 18 F.3d 581 (8th Cir.1994), Manning argues that his subsequent confession rendered these false statements immaterial.” Id. at *2 (internal quotations and citations omitted).

Held: 1. Obstruction on prior case: “Manning's gun possession both violated the terms of his pretrial release and inculpated him as a felon in possession. At the time he willfully took evasive actions, the investigation of his gun possession was already underway, as that was the basis for his scheduled hearing. Therefore, Manning's conduct was obstructive “with respect to the investigation, prosecution, or sentencing” of his felon-in- possession conviction for purposes of section 3C1.1. It is immaterial that he intended to obstruct only the child pornography case.” Id.

2. Materiality of obstruction after recantation: The Eighth Circuit is mistaken. Section 3C1.1 applies not only where a defendant obstructs justice with respect to his prosecution or sentencing, but also where he obstructs “the investigation . . . of the instant offense of conviction” . . . It doesn't matter whether he fooled the district court; it suffices that he fooled a Pretrial Services officer, or tried to. He need not actually have obstructed the investigation; it suffices that he “attempted” to do so. A false statement that, if believed, would tend to influence or affect” the investigation, . . . is material even if the defendant later comes clean. Id. at *2 (internal quotations and citations omitted).  

Of Note: Circuit split -- and the panel flatly dubs the 8th wrong. The issue is the “materiality” of obstruction if a recantation corrects the error before damage is done. In Manning, the Ninth holds that the cure is irrelevant; a mere “attempt” to obstruct is enough to trigger the enhancement. Id. Your recanting client may earn his rewards in heaven -- but he’ll still get nailed with obstruction in the Ninth.   

How to Use: Try to fool Pretrial, earn an obstruction bump at sentencing. A sobering rule, when one embarks on a bail interview with a client you’ve known for 15 minutes. Manning’s holding is a good topic for your harried prep session before the Pretrial interview – and a reminder why counsel must attend these interviews.  
For Further Reading: Apprendi applies to mand-mins: Harris got it wrong. That’s the pitch in Alleyne, the biggest SCOTUS case of the term (we hope). Alleyne will be argued 1/14/13 – you can find the cert. petition here.

Steven Kalar, Federal Public Defender Northern District of California. Website at


Labels: , , , , , ,

Wednesday, November 21, 2012

U.S. v. Wiggan, No. 10-50114 (11-20-12) (Fernandez with Berzon; dissent by Ebel, Sr CJ 10th)
Do you think having a grand jury foreman testify that a defendant lied in testimony might be a tad bit prejudicial? The 9th did, although a dissent from a designated 10th Circuit judge argued otherwise. This case arose from the high profile prosecution of a Hollywood investigator who wire-tapped. The defendant here had contact with some of the players, but she seemed to have had second thoughts, and a supposed recantation. The first trial saw acquittal on many perjury counts, but a hung jury on one count. This count was then retried for grand jury perjury with a superseding indictment alleging a false statement and perjury at trial. At trial, the prosecutor called, and the court allowed, testimony by the foreperson of the grand jury that the defendant's demeanor was untrustworthy and the grand jury did not believe her. On appeal, the 9th reverses all counts. The testimony was too prejudicial. The 9th looked to analogous testimony by judges, which is fraught with deference. It is the same with the testimony of a grand juror, especially the foreperson. The danger the jury would defer to the opinion. Not many courts have dealt with this, but the 9th did look to the 2nd Circuit, where, in upholding the discretion of a court to preclude such testimony, opined as to the danger of having grand jurors testify as to truthfulness. The 9th did reject the defense that she recanted. Indeed, the 9th found that recantation is a legal issue decided by the court. The 9th also rejected the argument there was insufficient evidence. Dissenting, Judge Ebel of the 10th argued that the district court did not abuse its discretion. The testimony was relevant, and went to truthfulness. The testimony was corralled by the district court. Even if it was error, it was not plain error, and it was not prejudicial.

U.S. v. Manning, No. 11-30150 (11-21-12)(per curiam with Kozinski, Tallman and Ikuta).
It is not wise for a defendant, on pretrial release to lie to his probation office, blow off a revocation hearing, and then flee to Mexico. It is especially unwise if the defendant had already been sentenced (11 years for child porn),and was awaiting self surrender. This combination of "don'ts" led to a new charge of felon in possession, and a longer sentence, with obstruction of justice as an enhancement. Wait, the defendant argues, the obstruction went to the child porn sentence, and not to the present charge of felon in possession. The 9th found this was obstructive, because the defendant knew the investigation was underway, lied to the officer, and fled. All of this obstructed the present felon in possession case. This interpretation may be in conflict with the 8th Cir (circuit conflict alert! Get the cert petitions ready) where a subsequent recantation or correction renders the misstatement immaterial. The argument made here was that the defendant admitted his wrongdoing. The 9th responded that it just wasn't backward looking, but that he knew of the present investigation and obstructed it.
U.S. v. Oseguera-Madrigal, No. 11-30360 (12-19-12) (Tashima with M. Smith and Christen).
It is like a bad dream act. The defendant was brought here when he was two. When he was 24, he pled guilty to use of drug paraphernalia in violation of Wash. Rev. Code 69.50.412. He was deported and came back, and charged with 1326. On a conditional plea, he argued that he was not removable, should have been informed of waiver relief, and that his sentence, which resulted from a six month variance downward from the Guidelines, was an abuse of discretion and substantively unreasonable. The 9th rejected all claims. It held that "use of drug paraphernalia" was in fact a conviction "relating to a controlled substance" under 8 USC 1182. this followed similar holdings for nearly identical statutes in Arizona and Hawaii. The defendant was not eligible for relief, and so informing him of relief through waiver was not necessary. As for sentencing, the sentence was not outside the "mine run" of similar cases.

U.S. v. Catalan, No. 11-50318 (11-19-12) (per curiam with Kozinski, Trott, and Thomas).
The 9th vacated and remanded a 1326 sentence. The district court had imposed a +16 enhancement as a result of a probation revocation that resulted in a sentence of greater than 13 months. This was error, because the US Sentencing Commission clarified the enhancement in amendment 764 on November 1, 2012, which stated that the revocation would be added to the original sentence only if the revocation sentence was imposed prior to deportation. This interpretation is clarifying and therefore to be applied retroactively.
U.S. v. Maloney, No. 11-50311 (11-14-12)(N. Smith with Tallman; dissent by Gilman, Sr. C.J. 6th).
This is not a good opinion for the defense. First, the 9th seems to grant free reign to prosecutors on their rebuttal under an expansive "open door" interpretation. Second, the 9th is generous in allowing a rehabilitation of a biased juror. Finally, the 9th rejects a proffered character evidence instruction, finding that character evidence is basically like all other evidence.
The defendant was a commercial truck driver. He was buying his rig from an owner, who conveniently put paperwork in the defendant's name. On a trip where he was stopped, his companion disappeared before he was to drop a load. At a checkpoint, marijuana was found in the cab. The defendant plead ignorance. The trial revolved around that.
In closing, the defense argued how evidence supported his theory. On rebuttal, the prosecutor unloaded, arguing credibility and saying that if the defendant was going on a trip, where was the luggage. Yet, there was no evidence, one way or the other, as to luggage. Defense counsel asked for surrebuttal but was denied. On appeal, the 9th found no abuse of discretion. Prosecution rebuttal can be inferred from the evidence, and here, the lack of evidence could be viewed as an open door. The dissent took issue, finding the response went far afield when there was no evdience presented. The door was not open, argued the dissent, because everyone had walked past it. It also was not harmless error as the case turned on the credibility of the defendant and his argument that he was set up.

Turning to the juror issue, the 9th found no abuse of discretion when the court kept the juror on, even after the juror said that police had a "leg up" in credibility. The court got the juror to say that he could put his favorable feelings aside. The juror even admitted that police have human frailties. Against the defense argument that the juror should have been struck, the 9th found that he was rehabilitated.

This analysis makes it difficult to strike for cause, but defense counsel should grasp on to any juror who hesitant about "frailties" or wants to favor police.

Lastly, the 9th found no error in denying a character instruction. The 9th basically does not feel that character evidence needs to be highlighted. The evidence is covered in the standard instructions.

Sunday, November 18, 2012

Case o' The Week: Owning Maloney - Sandbagging in Closing Arguments

Hon. Ronald Gilman

Sometimes we complain of the impact that Senior and visiting judges have on our body of Ninth Circuit criminal law.

And sometimes we don’t. United States v. Maloney, 2012 WL 5503664 (9th Cir. Nov. 14, 2012), decision available here.

Players: Decision by Judge N.R. Smith, joined by Judge Tallman. Compelling dissent by visiting Sixth Circuit Judge Ronald Gilman.

Facts: Maloney was arrested at the border and indicted for smuggling marijuana hidden in the cab of a tractor-trailer. Id. at *1. Defense counsel argued in closing that Maloney was set up, explaining that “Hernandez” had hidden the pot in the truck without the defendant’s knowledge. Id. at *8. In rebuttal, the government argued that the defense theory was not credible because Hernandez had done things inconsistent with secretly planting drugs, contended that the timing of the defense version of events was not consistent, and argued that the lack of luggage recovered undercut Maloney’s testimony that he had planned to travel for three days on a legitimate trucking haul. Id. at *11. The defense moved for surrebuttal, arguing that these were new factual theories that were not first made in the government’s closing argument. Id. The district court denied the defense request for surrebuttal; Maloney was convicted. Id.

Issue(s): “Maloney appeals his conviction by arguing that . . . the prosecution raised new arguments in rebuttal and the district court committed reversible error by refusing his request for surrebuttal based on those new arguments.” Id. at *2.

Held: “The district court did not abuse its discretion in denying the defense surrebuttal summation, because the prosecution's statements in rebuttal summation addressed the arguments made in defense counsel's closing argument and were based on permissible inferences from the record. The prosecution only strays from the proper bounds of rebuttal summation when it impermissibly raises new arguments in rebuttal summation . . . The prosecution impermissibly raises new arguments beyond the proper scope of rebuttal summation when the door has not been opened by defense counsel's summation or when the prosecution's arguments are not based on reasonable inferences from the record.” Id. at *1 (internal citations and quotations omitted). “[D]efense counsel opened the door to that information being presented in the prosecutions rebuttal summation by basing its argument on the proposition that the Government had not cast doubt on Maloney’s credibility and had not shown him to be a liar.” Id. at *12.

Of Note: The holding in Maloney ends with this maxim imported (and expanded) from the Eighth Circuit: “The specific content of the prosecution’s arguments are red herrings. Defense counsel opens the door to topics or issues, not specific facts.” Id. This is troubling indeed, and permits prosecutors to sandbag the defense with arguments sprung for the first time on rebuttal. Case in point: in Maloney the AUSA admitted he had intentionally sandbagged by saving factual arguments for rebuttal. 

This concession is detailed in a terrific dissent by visiting Sixth Circuit Judge Ronald Gilman. Id. at *17. Judge Gilman carefully explains how the “luggage” arguments lacked an evidentiary foundation, were intentionally sprung on the defense in rebuttal, and how the Maloney holding would necessarily permit absurd and intolerable sandbagging. Maloney, observes Judge Gilman, breaks with Ninth law on permissible closing arguments. Id. at *18 (citing Gray, 876 F.2d 1411, 1417 (9th Cir. 1989)). 

En banc petition” should be penned at the top of this compelling dissent.

How to Use: To stave off sharp dissent barbs, Judge N.R. Smith devotes a fair amount of effort of tying this holding to specific facts in the case. Id. at *15. If battling Maloney when sandbagged in closing, hit those limiting facts hard – some defense concessions in the opinion may make it distinguishable from your case.
For Further Reading: Sr. Judge Gilman is a Clinton appointee. See article hereMaloney isn’t his first great dissent: he wrote a beautiful dissenting opinion in ACLU v. NSA, where he explained why the Bush administration’s warrantless wiretapping of American citizens was unlawful. See opinion here

Here’s hoping the Hon. Gilman visits the West again, and soon.

Image of the Honorable Ronald Gilman from

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


Labels: , ,

Monday, November 12, 2012

Case o' The Week: One Crime, Two Definitions - Stat Rape in Ninth, Zamorano-Ponce

The generic federal definition of statutory rape, used to determine whether a prior state conviction qualifies in a federal action, requires a mens rea of “knowingly” in the Ninth Circuit.

The generic federal definition of statutory rape, used to determine whether a prior state conviction qualifies in a federal action, does not require a mens rea of “knowingly” in the Ninth Circuit.

United States v. Raul Zamorano-Ponce, 2012 WL 5395159 (9th Cir. Nov. 6, 2012), decision available here.

Players: Decision by Judge Graber, joined by Judges Alarcón and Berzon.

Facts: Zamora-Ponce pleaded guilty to illegal reentry. Id. at *1. In 2003, he pleaded guilty to “rape of a child in the third degree,” in violation of Revised Code of Wash. § 9A.44.079. Id. He was removed after his sentence, reentered, and was caught. Id. He pleaded guilty to illegal reentry pursuant to a written plea agreement. Id. Over defense objection, the district court treated the rape prior as a + 16 offense level, categorical “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Issue(s): “The question before us is whether a prior conviction for ‘rape of a child in the third degree,’ in violation of [Washington state law], qualifies as a ‘crime of violence’ for the purpose of the sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).” Id.

Held: “Reviewing de novo, United States v. Espinoza-Morales, 621 F.3d 1141, 1144 (9th Cir. 2010), we answer ‘yes’ and, therefore, affirm the sentence.” Id.

Of Note: This is short, but unfortunately potent, opinion. In Zamora-Ponce, Judge Graber distinguishes and thereby limits the Ninth’s en banc decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc). You’ll recall that in the terrific (unanimous!) Estrada-Espinoza opinion, Judge Thomas logically looked towards federal statutes for a definition of the “generic” crime of statutory rape. See blog here. The definition that came out of Estrada-Espinoza required a mens rea of “knowingly” for “generic” statutory rape. 546 F.3d at 1152. 

Not so here, explains Judge Graber. Estrada-Espinoza does not control this appeal, because Estrada-Espinoza discussed stat rape in the context of an agg felony in immigration law. By contrast, at issue in Zamora-Ponce was “crime of violence” in the context of the illegal reentry guideline. 2012 WL 5395159, *3.

Why does that make a difference to the generic federal definition of statutory rape? This is conspicuously not explained, in Zamora-Ponce’s lonely paragraph distinguishing Estrada-Espinoza. Id. 

So what is the Taylor generic definition of statutory rape in the Ninth? Turns out that it depends on whether an immigration agg felony is at issue, or a guideline “crime of violence” is under attack. Two generic definitions for one crime, two different mental states required for one generic offense, two conflicting lines of law, all within one Circuit – an interestingly chaotic state of affairs.

How to Use: The Ninth has also toyed with a four-year age-difference requirement for the definition of statutory rape. See United States v. Gonzalez-Aparcio, 663 F.3d 410, 431 (9th Cir. 2011). Is that age difference part of the generic stat rape definition? Still an unresolved question after Zamora-Ponce. 2012 WL 5395159, *2. The Washington state statute at issue here required the four-year age difference, so that question wasn’t reached by this panel. This means that the age-difference component of the federal definition is still fair game for the defense challenging “crime of violence” guideline enhancements in illegal reentry sentencing.  
Steven Hubachek
For Further Reading: Sad to report that our friend and colleague Steve Hubachek is leaving the San Diego Federal Defender’s office to go into private practice.

 “Huba” has been in the thick of dozens interesting and novel defense challenge over past couple of decades – from Apprendi and the drug statutes (Buckland), to grand jury instructions (Navarro-Vargas), to the timing of Giglio disclosures (Ruiz), to the formidable Aguila-Montes de Oca litigation now destined for the Supremes. 

Passionate, aggressive, wicked smart and enormously creative, Hubachek has been a great friend of the defense bar and an unflagging champion of our indigent clients. We’ll miss his loud Hawaiian shirts, loud punk music, and loud opinions, and wish him much luck in his new gig. 

For a small taste of the big mischief Steve has wrought, visit the collection of blog postings here.

Image of Steve Hubachek from

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


Labels: , , , , , , , ,