Smith v. Hedgpeth, No. 11-16858 (Bybee, J., with Farris and Fernandez, JJ.)

The Ninth Circuit affirmed the denial (Kozinski, C.J., sitting by designation) of a California state prisoner's § 2254 petition. The court held that it was not "clearly established" that sentencing enhancements must be incorporated into the double-jeopardy analysis of Blockburger v. United States, 284 U.S. 299 (1932), when determining whether two crimes are the "same offense" for which multiple punishment is forbidden. As relevant here, the petitioner was convicted in a California superior court of two crimes -- corporal injury on a spouse, enhanced by use of a deadly weapon; and assault with a deadly weapon. Both convictions also carried special findings of domestic violence and inflicting great bodily injury. After exhausting his remedies, he filed for habeas relief in federal district court, claiming that under Apprendi v. New Jersey, 530 U.S. 466 (2000); Texas v. Cobb, 532 U.S. 162 (2001); and Sattazahn v. Pennsylvania, 537 U.S. 101 (2003), these convictions constituted the "same offense" under the Double Jeopardy Clause. The Ninth Circuit disagreed. Apprendi and Cobb deal with the Sixth Amendment, and thus set forth no "clearly established" law in the double-jeopardy context. Sattazahn was a closer question, but the panel ultimately sided against the petitioner. Sattazahn dealt with capital sentencing, not noncapital sentencing, and the Supreme Court has consistently distinguished between the two sentencing contexts. Moreover, under the rule of Marks v. United States, 430 U.S. 188 (1977), anything Justice Scalia might have said in his Sattazahn opinion that might support extending the rule to noncapital sentencing did not command a majority of the Court and thus was not "clearly established" federal law. Thus the panel held that the district court correctly denied habeas relief under AEDPA's limitation on relief.

The decision is here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2013/02/05/11-16858.pdf


United States v. Preston, No. 11-10511 (Farris, J., with Bybee, J.; dissent by Noonan, J.)

The Ninth Circuit affirmed a conviction (Snow, D.J.) for abusive sexual contact, in violation of 18 U.S.C. §§ 1153 and 2244, and a term of lifetime supervised release, but remanded for further proceedings for want of an adequate explanation for imposing conditions of supervised release including plethysmograph testing, a ban on possession of material deemed sexually oriented by the probation officer, and a prohibition on associating with minors. Judge Noonan dissented, complaining that the panel did not adequately address the defendant's mental deficiencies in sanctioning the admission of his confession and reiterated his objection to plethysmograph testing.

The defendant was initially charged with aggravated sexual abuse of a minor, but as part of a plea bargain he pleaded guilty to the reduced offense of abusive sexual contact so as to avoid the 30-year mandatory minimum sentence for the more serious charge. After a bench trial, he was ultimately sentenced to 50 months' imprisonment and lifetime supervised release, with conditions requiring plethysmograph testing, forbidding the possession of material deemed "sexually stimulating, sexually oriented, or deemed to be inappropriate by the probation officer and/or treatment provider," and prohibiting contact with children.

A.  The court held that the defendant's confession was voluntary, despite the fact that the defendant's IQ is 65 (mild mental retardation). The interrogating agents didn't use coercive psychological techniques -- the interview lasted only 40 minutes and was conducted outside of the defendant's home with other people nearby. The agents permissibly probed the defendant's denial of committing the offense by expressing disbelief over the denial. And while the agents did confuse the alleged dates of the offense during their interview, that was a mistake and not intended to trick the defendant. The agents' leading questions also did not coerce inculpatory statements. Moreover, it wasn't clear to the agents that the defendant had mental difficulties during the relatively short interview. His "mental capacity alone is not enough to render his confession involuntary.

B. The defendant's waiver of indictment complied with Fed. R. Crim. P. 7(b); he was capable of understanding the legal implications of waiving an indictment, and his lawyer was satisfied that he understood as well. Waiving indictment in exchange for a lesser sentence was not unduly coercive.

C. The defendant complied with Fed. R. Crim. P. 23 in waiving his right to a jury trial. He did so in writing with the approval of the government and the court after an "in-depth colloquy" about the meaning of a jury trial and the implications of waiver. Compliance with Fed. R. Crim. P. 11 was not required.

D. Waiver of the right of confrontation was part of a valid trial strategy, so counsel was permitted to waive that right on the defendant's behalf.

E. The court rejected evidentiary challenges to the admission of DNA evidence. Rule 403 could not keep the DNA evidence out, because Rule 403 does not apply to bench trials. And the defendant did not establish that the DNA evidence lacked appropriate foundation, such that the trial judge should have excluded it under Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993). The DNA lab followed proper procedures and did not improperly rely on statistical evidence relating to the Native American population that could have supplied the DNA found in the victim's underwear.

F. The district court properly admitted the victim's relatives' statements about what occurred as admissible hearsay under the excited-utterance exception, Fed. R. Evid. 803(2). To the extent that a police officer's statements were admitted in violation of the Confrontation Clause, admitting those statements was harmless because they were cumulative of the relatives' properly admitted statements.

G. The prosecutor's alleged instances of vouching and other misconduct did not amount to plain error. The prosecutor did not make any personal assurances of the witnesses' veracity, nor did he refer to other alleged acts of molestation not in evidence. Moreover, the risk of affecting the public reputation of the proceedings was lowered because this was a bench trial.

H. The evidence was sufficient, on plain-error review, to sustain the conviction. The defendant viewed pornography with the victim and ejaculated after the incident, and the evidence as a whole (including the allegedly coerced confession) was sufficient to support the conclusion that sexual contact occurred.

I. The district court did not commit procedural error in imposing a term of lifetime supervised release. The sentencing judge gave ample reasons for imposing that term.

J. Nor was the lifetime supervised release substantively unreasonable. The sentencing judge accounted for the defendant's age (18 at the time of the offense) and mental capacity in selecting a life term, as well as the prosecution's avowal that the defendant could move to terminate supervised release at some point in the future if it were appropriate to do so.

K. On plain-error review, the court remanded for further proceedings concerning three conditions of supervised release.

As for the plethysmograph testing, the sentencing judge failed to make on-the-record findings that such testing was specifically necessary in this particular case. The government confessed error and explained at oral argument that it would not pursue this condition on remand.

As for the pornography restriction, the panel concluded that it was vague because it included not just "sexually oriented" and "inappropriate" materials but also "any other material." Taken together, these three terms were not self-defining and left the defendant guessing about the meaning of the terms. On remand, the district court must clarify what material the defendant may and may not possess.

As for the prohibition on contact with minors, the condition was vague because it placed on him the burden to learn the age of every person he associates with. It was also imposed after an inadequate explanation, because it forbade him from associating with any children he might have in the future. Cf. United States v. Wolf Child, 699 F.3d 1082 (9th Cir. 2012).

Judge Noonan dissented. He took the majority to task for whitewashing the police's extraction of a confession from a mentally retarded teenager. Such confessions "are prone to be false," particularly in this case where the officers misstated the date of the offense, dicatated a written confession for the defendant to sign, and (in his view) took advantage of his mental infirmities. He also reiterated his disapproval of plethysmograph testing, noting that his objection has made its way into the psychological literature.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/02/05/11-10511.pdf