U.S. v. Ramirez, No. 11-50346 (04-29-13) (Kozinski with McKeown and M. Smith)

The judge's sua sponte instruction to the jury that they should not speculate as to the government did not call a witness forbid the jury from doing something it should, indeed, was required to do. The defendant participated in a number of buys from undercover cops. One co-defendant plead and was willing to testify. However, the government elected not to call him, presumably because he was jumped in detention and suffered permanent brain injury. The defendant asked for a "missing witness" instruction. The court declined. This was not an abuse of discretion because the instruction should be given when the witness is within the sole control of the government and the witness's absence should naturally be held against he government. Here, the absence could not be held against the prosecution; there may be other reasons he was not called. The judge's sua sponte instruction to the jury was error. The defendant could argue why the witness was not called. The jury knew he was arrested and had plead. The jury should not have been forced not to infer what the defense argued. The error however was harmless. The evidence was overwhelming. The 9th did vacate the conspiracy conviction. There was no evidence that the drugs were going to be sold to others as part of an agreement. The mandatory 20 year sentence is affirmed because the 841 notice did not have to be presented to the jury as an element. Buckland does not control.

Congratulations to Deputy Federal Defender Devin Burnstein, Federal Defenders of San Diego, for putting up a fight and winning issues.

Jamerson v. Runnels, No. 12-56064 (04-24-13) (O'Scannlain with Nelson and Singleton)

The opinion's first paragraph spells out the issue, and the outcome:  "We must decide whether the California courts' determination that a prosecutor had genuine, race-neutral reasons for striking four black jurors during voir dire was an unreasonable application of federal constitutional law." The 9th held that the state courts' findings were reasonable under AEDPA. The 9th looks past the prosecutor using her 8 first peremptory challenges against 2 Hispanic and 6 black jurors, and then her next two against black jurors, and then her final 5 included 2 against blacks (The first two series of peremptory had Batson objections). The 9th reversed the district court's relief, parsing the reasons and finding them, under a comparative analysis, race neutral. Procedurally, the 9th considered Pinholster and its affect on California Batson/Wheeler challenges, because a comparative analysis can only be considered in post-conviction. The 9th held that the federal court must first do the comparative analysis with other jurors, and then consider that and other evidence in deciding if purposeful discrimination took place, using the doubly deferential review.

Case o' The Week: Ninth Won't Dance Alaskan Two-Step -- Barnes and Seibert two-step interrogations

Who can resist the sweet allure of the Seibert two-step, an effective interrogation dance that leads to full confessions and meth convictions?

The Ninth, thankfully. United States v. Barnes, 2013 WL 1668966 (9th Cir. Apr. 18, 2013), opinion available here.

Players: Per curiam decision by Judges Hawkins, McKeown, and Bea.

Facts: The FBI recruited a snitch to investigate a drug trafficker. Id. The snitch negotiated for and got meth from Barnes at the Anchorage airport, on the premise that the snitch was going to transport the drugs to this trafficker. Id. The FBI didn’t get to the airport in time to observe the transaction, (!?!), but recovered the meth from the snitch. Id. Months later, the FBI had Barnes’s parole officer bring him in (the terms of Barne’s parole required him to attend meetings). Id. Usually, this parole officer spoke to her charges through a lobby window. This time, Barnes was searched and brought into the building through a locked door. Id. When he got to the officer’s office, Barnes found FBI agents. They interrogated him without advising him of his Miranda rights. Id. The agents accused Barnes of the meth sale and played the recorded conversation between Barnes and their snitch. Barnes admitted he remembered the transaction. Id. The agents then Mirandized Barnes, who waived and confessed. Id. Barnes’s motion to suppress was denied and he was convicted at trial. Id. at *2.

Issue(s): “When a law enforcement officer interrogates a suspect in custody but does not warn the suspect of his Miranda rights until after he has made an inculpatory statement, the inquiry is whether the officer engaged in a ‘deliberate two-step’ interrogation. . . . Such an interrogation occurs when an officer deliberately questions the suspect without Miranda warnings, obtains a confession or inculpatory admission, offers mid-stream warnings after the suspect has admitted involvement or guilt, and then has the suspect repeat his confession or elaborate on his earlier statements.” Id. at *3 (internal quotations and citations omitted).

Held: “Because the meeting was a custodial interrogation, Miranda warnings were required to allow the prosecution to use Barnes’s statements at trial. Engaging in a ‘two-step interrogation’ prohibited by . . . Seibert . . . the agents deliberately delayed giving warnings to induce Barnes’s cooperation in an on-going investigation. Although the target of the agents’ inquiry was ostensibly another suspect, the questioning necessarily elicited information that incriminated Barnes. The mid-stream warnings provided after Barnes incriminated himself were too little, too late. The . . . failure to suppress the statements was in error. . . . Because the error was not harmless beyond a reasonable doubt, we reverse Barnes’s conviction.” Id. at *1.

Of Note: Much of value in this opinion for Miranda fights, but of particular note is the Court’s rejection of the Agents’ claimed intent as a rationale for this two-step search. The FBI agents complained that they didn’t really mean to arrest Barnes – they just wanted to turn him into a snitch after questioning him. Id. at *4. The Court is unimpressed. “Whether the agents planned to arrest Barnes forthwith or to turn him into a cooperating witness is not the bellwether for administrating Miranda warnings. The simple reason the agents delay was so that Barnes would talk to them about his role in the drug transaction. It is the agents’ interrogation of Barnes to this end in the custodial setting that triggers the need for Miranda warnings, where, as here, the suspect’s statements are later proffered against him at trial.” Id. at *4.

How to Use: Much to admire in the Court’s Seibert analysis, but Barnes’ “custody” holding is equally useful. Id. at *2. The Court works through the five Kim factors and finds that this compelled constituted, “custody.” Id. at *3. A holding worth remembering when federal probation officers “collaborate” with cops and agents.

                                               

For Further Reading: Be It Resolved: Article II can’t seek death, and Article III can’t impose death, if Article I won’t pay for the defense of a death case. Exhibit A: Tsarneav. Exhibit B: Suleiman Abu Graith. 

  A debate coming soon to a district court near you. See ABC News Article here. 

“Two Step” Image from http://twostepvictoria.com/
 Image of Dzhokhar Tsarneav from http://www.sbs.com.au/news/article/1758782/Boston-bombing-Dzhokhar-Tsarnaevs-Twitter-account/

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

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Case o' The Week: Third & Sixth Muddle Ninth's Fourth - McClendon and Fourth Amendment Seizures

  Sawed-off shotgun in the backpack, pistol in the waistband, ski mask and no snow to be seen.

  Bad facts make new law in the Ninth on Fourth Amendment seizure. United States v. McClendon, 2013 WL 1693958 (9th Cir. Apr. 19, 2013), decision available here.

Hon. Ronald Gould

Players: Decision by Judge Gould, joined by Judges Fisher and Paez.

Facts: At 2:20 a.m. police responded to a 911 call from an elderly disabled homeowner. Id. at *1. [Ed. note – extraneous bad facts pepper this opinion]. Cops found a car in the caller’s driveway, and a meth-addled woman inside. Id. The cops searched the car and found a machete, discovered drugs and paraphernalia in the woman’s purse, and recovered a backpack that the woman attributed to the absent Eddie McClendon. Id. In the backpack was a sawed-off shotgun, a wig, ammo, walkie-talkies, pills, and a receipt in McClendon’s name. Id. A records check on McClendon revealed a felony weapons prior. Id. at *2. The cops found a man matching McClendon’s description 50 yards away; when asked if he was “Eddie” the man answered “Yes, that’s me.” Id. at *2. The officers drew their guns, told McClendon he was under arrest, and ordered him to show his hands. Id. He didn’t. Instead, he continued to walk away. When the officers got close McClendon reached to his waistband, turned away, and made a flinging motion. Id. at *2. They tackled McClendon and found a gun a few feet away. Id. McClendon entered a conditional plea after the district court denied a suppression motion. Id.

Issue(s): We must first decide whether McClendon was seized in violation of the Constitution by the police before he tossed the gun away. If McClendon was seized unconstitutionally, then the recovered handgun should be suppressed as a fruit of the poisonous tree.” Id. at *3.  

Held: “Precedent instructs that where an individual flees from police, no submission occurs until the defendant is physically subdued. . . But we have not addressed a situation where, as here, a defendant walks away from and refuses to comply with the commands of officers who are attempting to arrest him, instead reaching into his waistband.” Id. at *3 (emphasis added). “[W]e hold that McClendon's initial response of answering ‘Yes, that's me’ was not sufficient to show that he had submitted to the officers' authority.” Id. at *4. “McClendon . . . contends that he was seized when the officers drew their guns and told him that he was under arrest . . . . But McClendon misses the point of Hodari D. [A] reasonable person in McClendon's shoes would not have felt free to leave. The critical difference is that, faced with such authority, McClendon did not submit. Instead, although he was ordered at gunpoint to stop and put up his hands, McClendon turned and walked away, not raising his hands.” Id. . . . “McClendon was not physically touched during his initial encounter with the police and, because he did not submit to the officers' show of authority, he was not seized until he was brought to the ground.” Id. at *5. . . . Assuming, without deciding, that the officers initially had no authority to stop or arrest McClendon, we still conclude McClendon was not seized until he was physically apprehended.” Id. “Because McClendon did not submit to the authority of the police, he was not seized before he was tackled and thus lost his ability to challenge the admissibility of the handgun as a fruit of an illegal seizure.” Id.   

Of Note: “At the time of McClendon's arrest, he was wearing a black knit cap, which police found to be a rolled-up ski mask, one with eye holes and a mouth hole. But McClendon had no skis. And there was no snow.” Id. at *2. This decision goes out of its way to describe McClendon as a man bent on mischief. Unfortunately, these facts are irrelevant to the seizure inquiry: bad facts buttress some disappointing new Fourth law.  

How to Use: This Ninth decision of first impression relies heavily on out-of-circuit authority. See id. at *3 n.3, *4 n.4. It is, fortunately, fairly fact-bound: read the chronicle McClendon’s responses carefully before surrendering your own seizure argument.

                                               

For Further Reading: Thankfully Mass. Fed. Defender Miriam Conrad is seeking appointment on the surviving alleged Boston bomber. Tragically, her office will be defending the case on a budget slashed by sequestration. “Public defenders offices shouldn’t suffer under sequestration” – so argue federal judges in a recent and compelling Washington Post editorial. See editorial here. 

Image of the Honorable Ronald Gould from http://aaspector.com/Features.html Image of ski mask from http://armedrobberyadvice.files.wordpress.com/2011/03/images2.jpg

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

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U.S. v. Barnes, No. 11-30107 (4-18-13)(per curiam with Hawkins, McKeown, and Bea)

You know that a Miranda violation has to be pretty blatant to warrant a per curiam reversal of a drug conviction and suppression of the confession. The defendant here, while on probation, was suspected of engaging drug distribution, helped by a friendly CI. When the surveillance over the buy fizzled (the agents were late to the airport), the FBI decided to enlist the probation officer. In comes the defendant, thinking it is only a routine ho-hum visit, and then the hard interrogation by the agents, waiting in the room. No rights were read. The defendant talked, got his rights read, and confessed some more. The 9th found he was in custody (he was patted down and screened when he came in, which was never done previously), and he was not free to go. The Seibe two step was employed, and the 9th would have none of it.

U.S. v. Anguiano-Morfin, No. 11-50376 (04-18-13) (Fletcher with Rawlinson and Hellerstein, Sr. D.J. SDNY)

What is the mental state to make a false claim to US citizenship? Willful. So, here the defendant suffered from a delusion that he was a US citizen. Did he know that the representation was false? if not, the false claim was not willful. The jury instruction, which stated the theory of the case, was that the defendant genuinely, if mistakenly, believed he was a citizen because of a delusion. The instruction was not given, but should have been. However, there was no error because of a combination of the presented instructions and closing argument clearly presented the jury with the issue that the defendant's subjective belief was at issue. On the second issue, it was not plain error for the gov't to ask its expert about the veracity of the defendant.

Although in a losing cause, AFPD Zandra Lopez of the San Diego Defenders developed some good law.

U.S. v. McClendon, No. 12-30015 (04-19-13) (Gould with Fisher and Paez)

"Stop! In the name of the law" shouted the police. The defendant kept walking. He was eventually tackled, and a firearm was discovered nearby that the police said he discarded. The defendant was a prohibited possessor. He argued hat the gun should be suppressed because he was illegally seized. No, said the 9th, because he never submitted to the police. Once he failed to submit, or stop, due to the fact the police was suspicious of activities, he could not then argue that the stop was unreasonable. The 9th also held that the police illegal search of his backpack (containing another gun) in his car was illegal but it did not lead to a but-for arrest. The police were suspicious of the defendant apart from the backpack due to his activities of surveillance of a house, and a machete also in his car, and arguably a classic burglar disguise -- clothing and a black ski mask, although there was no snow on the ground. The police also found the backpack was attenuated.

U.S. v. Trujillo, No. 11-50353 (04-16-13) (Canby with Reinhardt and Wardlaw)

There is no jurisdictional bar to a second bite of the 3582(c)(2) apple (retroactive guidelines amendment). The defendant, in 1993, was sentenced to 30 years.  The Commission subsequently lowered the guidelines range and Defendant moved for a reduction, which was denied.  Years later, after Booker, the defendant moved again for a reduction.  The court again denied, not explaining why it rejected the 3553 factors, and stating that the amount of drugs could justify keeping the sentence the same (an upward in effect).  On appeal, the 9th held that there was not a jurisdictional bar to a second crack to asking.  The statutory language is clear.  On this issue, the 9th finds itself aligned with the 3rd but in conflict with the 4th and 7th circuits (Circuit conflict alert).  As for nonjurisdictional bars, such as law of the case, the government waived the arguments by not raising them before the district court.  As for the merits of the retroactivity, the district court is not barred by ex post facto from denying the reduction on the theory of an onward for amount, as mentioned in commentary.  The case is remanded for resentencing because the district court failed to explain why it rejected the various 3553 grounds, with supporting appendix.  The grounds for reduction were not frivolous and the court should have address them.

Something to consider in trying again for a retroactive reduction.

Congratulations to Deputy Federal Defender Brianna Mircheff of the FPD Office for the Central District of California (L.A.).

U.S. v. Garrido, No. 06-50717 (4-15-13)(Pregerson with Noonan and Paez)

The opinion is long, the counts numerous, and the crimes white collar. Bottom line is that in this bribery, kickback, and money laundering scheme, the convictions for "honest services" are reversed pursuant to Skilling's overbroadness holding. The money laundering is also reversed. Good old fashioned bribery is affirmed.

Case o' The Week: Bad Facts Make Good Law -- Yuman-Hernandez and Sentencing Entrapment

 The Ninth delivers an opinion that has everything we could want: thoughtful clarification of a defense theory that helps ease our burden, rejection of a government approach that would make a defense functionally impossible, and a stern warning that the Circuit takes a “hard look” at a particularly troubling category of cases.

A win across the board (except, sadly, for the defendant himself). United States v. Yuman-Hernandez, 2013 WL 1395811(9th Cir. Apr. 8, 2013), decision available here.

Players: Decision by Judge Goodwin, joined by Judge Fletcher and visiting District Judge

Korman.

Facts: Yuman-Hernandez was convicted of conspiracy to rob a stash house and use of a firearm. Id. at *1. An agent, pretending to be a courier, met with the heavy and his “crew” – including Yuman-Hernandez – and planned a robbery of a (fake) stash house “containing” over 20 kg. of cocaine. Id. Yuman-Hernandez had an opportunity to withdraw, and didn’t. Id. He recruited a co-defendant. Id. He also drove the heavy, to get marijuana to trade for an assault rifle for the robbery. Id. A co-defendant testified the heavy told Yuman-Hernandez he’d get paid when the cocaine was sold. Id. At sentencing, the district court found Yuman-Hernandez had not met his burden to prove sentencing entrapment argument, and imposed the mand-min sentence of 180 months.

Issue(s): “Yuman–Hernandez appeals his . . . mandatory-minimum sentence, assigning error to the district court's rejection of his sentencing entrapment argument. He argued a lack of predisposition to commit an offense involving the amount of cocaine charged, and was thus entrapped.” Id. at *1.

Held: “Yuman–Hernandez takes issue with what he perceives to be a lack of evidence showing an affirmative predisposition to commit a crime involving twenty to twenty-five kilograms of cocaine. But Yuman–Hernandez ignores the fact that it was his burden to show a lack of predisposition. The district court's finding was reasonable in light of this burden. Yuman–Hernandez complains most forcefully that he was not financially capable of purchasing the amount of cocaine at issue. But his ability to purchase any given amount of cocaine is not relevant. Instead, the predisposition-capability concerned here is that to conspire with others to take the amount of cocaine involved by force. His argument fails even if the question is construed as whether he lacked predisposition to handle a large amount of cocaine. He was involved as a member of a stick-up crew; there is no indication he would have been expected to deal or otherwise offload the cocaine by himself after the robbery. Testimony showed [the heavy] intended to sell the cocaine himself and distribute the proceeds — Yuman-Hernandez needed only provide muscle. While the question of his capability to steal twenty to twenty-five kilograms as opposed to some smaller amount is less enlightening in this context, the cumulative evidence tended to not only rebut any argument that he lacked intent, but in fact show the affirmative existence of intent. Further, Yuman–Hernandez offered no evidence to suggest otherwise—a fatal error in light of his burden. Thus, the district court did not abuse its discretion in rejecting the sentencing entrapment argument.” Id. at *3.

Of Note: Loss for this defendant, but this great opinion is a defense win. Judge Goodwin untangles the confusion surrounding sentencing entrapment. He clarifies that in the context of fake stash house robberies, it is not the defendant’s burden to establish both a lack of intent and a lack of capability. Id. at *3. [I]n the case of fictitious stash house robberies, the defendant need only show a lack of intent or lack of capability to deal in the quantity of drugs charged.” Id. at *3.

   Judge Goodwin also explains that “outrageousness is not itself an independent prong of sentencing entrapment.” Id. Very important holding: a case needn’t be “outrageous” for sentencing entrapment to be a viable defense theory.      

How to Use: The Ninth gives sting operations with stash houses a “hard look.” Id. at *3. You should give Yuman-Hernandez a hard look if you have such a case, or any sentencing entrapment issue: it is a lead decision.

                                               

For Further Reading: Did you hear about the new Speedy Trial Act exclusion? Continue the trial, because we don’t have money to mount a defense? For a remarkable tale of sequestration’s impact on the biggest active terrorism case on American soil, see the New York Times article here. 

Image of “Stash House” from http://ffilms.org/wp-content/uploads/2012/06/Stash-House.jpg

Image of Uncle Sam and sequestration scissors from http://www.rand.org/blog/2013/02/the-state-of-the-union-2013.html

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

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