Case o' The Week: Ninth Under the (Undue) Influence -- Guideline Double-Counting

  A pimp can “unduly influence” a minor-prostitute without using “force, fraud or coercion” – and get more prison time as a result.

  (Though how a pimp would actually do this isn’t entirely clear). United States v. Smith, 2013 WL 3198487 (9th Cir. June 26, 2013), decision available here.

Players: Decision by Judge Ikuta, joined by Judges Callahan and Hurwitz.

Facts: Smith went to trial and was convicted of sex trafficking of children by force, fraud or coercion under 18 USC § 1591(a) and (b)(1). Id. at *1. Smith gave homeless minor “M.S.” a job, asked her to move in with him, and had sex with her. Id. at *1, *4. Smith then worked with his “most-trusted prostitute” to involve M.S. in prostitution. Id. Smith then beat and threatened M.S. until he was arrested. Id. The PSR recommended an upward guideline enhancement for “exerting undue influence on a minor” under USSG § 2G1.3(b)(2)(B). The defense objected that this guideline enhancement was impermissible double-counting; the district court imposed the increase and sentenced Smith to thirty years. Id.

Issue(s): “We begin with Smith’s challenge to the enhancement for undue influence under § 2G1.3(b)(2)(B). This section provides for a two-level upward adjustment if a participant ‘unduly influenced a minor to engage in prohibited sexual conduct.’ Id. “Smith argues that this two-level increase for undue influence under § 2G1.3(b)(2)(B) was impermissible double-counting because the court calculated a base offense level of 34 under § 2G1.3(a)(1) for his violation of § 1591(b)(1), which has as an element that the defendant used ‘force, fraud, or coercion.’ Because a person using ‘force, fraud, or coercion’ against a minor would necessarily have ‘unduly influenced’ the minor, Smith asserts, the § 2G1.3(b)(2)(B) enhancement impermissibly punished him for conduct already included in the base offense level.” Id. at *2.

Held: “Because having ‘undue influence’ on a victim under § 2G1.3(b)(2)(B) may involve acts that do not constitute ‘force, fraud, or coercion’ encompassed in § 2G1.3(a)(1), the two provisions serve unique purposes under the Guidelines and may both be applied to the same conduct. Here, the district court could reasonably determine that Smith ‘unduly influenced a minor to engage in prohibited sexual conduct,’ § 2G1.3(b)(2), by preying on M.S.'s vulnerability. Smith took steps aimed at making M.S. dependent on him: knowing she was homeless and lacking family support or financial resources, he invited her to move in with him, gave her a job, and began a sexual relationship with her. These predatory acts compromised the voluntariness of her ability to resist Smith's demands that she work as a prostitute for him. . . . Yet, these acts do not amount to ‘force’ or ‘fraud.’ . . . Nor do such acts amount to ‘coercion’ as defined in § 1591. . . . Accordingly, we conclude that the district court did not err in applying a two-point enhancement for ‘undue influence’ under § 2G1 .3(b)(2) when calculating Smith's guidelines range.” Id. at *4 (internal citations and quotations omitted). 

Of Note: Smith makes tough pimp cases even tougher. In addition to the double-count holding above, Judge Ikuta upholds a Chapter 3 “organizer / leader” adjustment for Smith’s use of his “most-trusted” prostitute to groom the minor. Id. at *5. Another red flag for a common factual scenario in pimp cases involving minors.

How to Use: Smith illustrates what we already know: the Guidelines are unjust because they double-count. Felon-in-possession defendants get more time because their priors increase both their offense levels and criminal history points, USSG § 2K2.1, illegal entry defendants suffer the same double-count, USSG § 2L1.2. Here, Smith’s double-whammy was entirely in the offense level calcs. Smith started with a whopping 34 base offense level because he trafficked a minor using force, fear or coercion. Id. at *2. He then got two more offense levels for exerting “undue influence” on the minor. Id. While Judge Ikuta tries to tease these two types of conduct apart, as a practical matter it is hard to imagine a pimp case where the “undue influence” bump won’t be an automatic additional two-level hit after a “force, fear or coercion” conviction. Beware of this guideline danger when calculating exposure in pimp cases.  

                                               

For Further Reading: Budget cuts to FPDs will jeopardize the security and functioning of the U.S. justice system. So reports the Federal Bar Council in a recent letter to President Obama, available here. 

Image of guideline nomenclature from http://www.ussc.gov/Guidelines/2011_Guidelines/images/Chap1_1b1.6.png

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

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Case o' The Week: The Defense defends -- Surprise! Hernandez-Meza, Rule 16 Discovery, and Re-Opening Government Case

   “[A] criminal defendant, unlike the government, needn't have a good faith belief in the factual validity of a defense. So long as the defendant

Hon. Chief Judge Alex Kozinski

doesn't perjure himself or present evidence he knows to be false . . .  he’s entitled to exploit weaknesses in the prosecution's case, even though he may believe himself to be guilty.”

   Your parents don’t understand this about your job, your AUSAs are often offended by this very concept, and sometimes it feels like even your district court has forgotten this truth.

  Take heart. The Chief gets it.  United States v. Hernandez-Meza, 2013 WL 3112562, *3 (9th Cir. June 21, 2013), decision available here.

Players: Decision by CJ Kozinski, joined by Judges Wardlaw and Gould. Big win for Federal Defenders of San Diego AFD Harini Raghupathi.

Facts: Through cross-examination, Hernandez-Meza fought illegal reentry charges at trial on a derivative citizenship theory. Id. at *1. After both sides had rested, the defense submitted proposed jury instructions supporting that theory. Id. In response, and arguing it was “surprised,” the government moved to reopen its case-in-chief and introduce the naturalization certificate of Hernandez-Meza’s mother. That certificate bore a citizenship date that destroyed the defendant’s derivative citizenship argument. Id. Over repeated defense objections the district court allowed the government to reopen the case; the defendant convicted. Id.

Issue(s): “Hernandez–Meza [argues that]: (a) the government was not surprised and could have proffered the naturalization certificate before it rested its case; and (b) the government was, in any event, not entitled to introduce the naturalization certificate because it had failed to produce it during discovery.” Id. at *2.

Held: “We vacate the conviction and remand for an evidentiary hearing into whether the prosecution's failure to disclose the certificate in discovery or at any point before the proofs had closed was willful. If it was willful, the district court shall impose appropriate sanctions. The district court shall, in any event, dismiss the illegal reentry count of the indictment on account of the STA violation, with or without prejudice, depending on its weighing of the relevant factors. . . . We are perturbed by the district court’s handling of the reopening issue. The court persisted in giving a reason for allowing the government to reopen that was contradicted by the record, despite defense counsel's repeated attempts to point out the error. The court also ignored defendant's twice raised Rule 16 objection and made a questionable ruling regarding defendant's Speedy Trial Act claim. [W]e conclude reassignment is appropriate, and we so order.” Id. at *8 (internal citations and quotations omitted).

Of Note: CJ Kozinski lampoons the government’s claim of “surprise” when Hernandez-Meza pursued a defense – through impeachment – that he knew wasn’t true. The Chief explains, “[A] criminal defendant needn't have a good faith belief in the factual validity of a defense. So long as the defendant doesn't perjure himself or present evidence he knows to be false—and Hernandez–Meza presented no evidence at all—he's entitled to exploit weaknesses in the prosecution’s case, even though he may believe himself to be guilty.” Id. at *3. 

  Warms the heart to read an affirmation of what we all know is true: the “pursuit of truth” isn't part of defense counsel's job description. 

How to Use: Gutsy move, right? Brave to mount a derivative citizenship attack when defense counsel knew that the government had the mother’s citizenship certificate and was ready to blow the theory out of the water? 

  Gutsy, yes – except defense counsel didn’t know about the certificate. Although the AUSA had it, the government remarkably did not disclose the certificate during Rule 16 discovery, and didn’t reveal it until it moved to reopen the case. 

  Fair to say our Chief was unimpressed with the government’s gambit: “The record suggests that the government may have deliberately withheld the naturalization certificate from Hernandez-Meza . . . . If the government willfully withheld the certificate, then it should be precluded from introducing the document at any retrial of Hernandez-Meza.” Id. at *7. 

  This little illegal reentry opinion is a wonderful and important discovery decision: CJ Kozinski explains what real Rule 16 discovery means, and puts real teeth into the remedy for a violation. Id. at *6-*7. Milke, W.R. Grace, Stever -- Hernandez-Meza now joins this proud line of thoughtful Ninth discovery jurisprudence.

                                   

For Further Reading: Alleyne, Descamps, and Davila: three recent Supreme Court cases that profoundly and immediately affect federal practice. To untangle this imposing trio, start with the great summaries and links available here.       

Image of the Honorable Chief Judge Alex Kozinski from http://azatty.files.wordpress.com/2012/03/kozinski-4-lo.jpg

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

US v. Hernandez-Meza, No. 12-50220 (6-21-13)(Kozinski with Wardlaw and Gould).

How many ways could the defendant be prejudiced? Failure to dismiss for Speedy trial? Check. Allowing the government to reopen its case-in-chief after its rested to rebut a defense it knew about? Check. The possible sandbagging by the government? Check. All present here, which resulted in a vacation and remand and reassignment. This was a 1326 prosecution. The defendant argued he might be a derivative citizen. He didn't put on evidence, but argued the defense in cross exam of the government witnesses and in requested jury instructions. The 9th found various errors in the government not disclosing immigration documents, and the court allowing the government to reopen. And yes, there was also a speedy trial violation. The case was reassigned.


Congrats to Harnini Raghupathi of the Federal Defenders of San Diego.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/06/21/12-50220.pdf

Lemke v. Ryan, No. 11-15960 (Canby, author; N.R. Smith, also on panel; Burns (S.D. Cal.) concurring and dissenting) -- Full disclosure: I am cocounsel for the petitioner in this case.


The Ninth Circuit affirmed the denial of an Arizona state prisoner's § 2254 petition, holding that the state courts' rejection of his double jeopardy claim was not an unreasonable application of clearly established federal law. This was so, the court reasoned, because the Supreme Court had never held that a successive prosecution on a greater offense after a conviction on a "sub-lesser-included offense" (with the implied acquittal on the lesser-included offense) violated the Double Jeopardy Clause.

The petitioner was charged in two separate counts with armed robbery and felony murder predicated on armed robbery. At trial the jury convicted the petitioner of theft, a lesser-included offense of armed robbery under Arizona law, and hung on the murder count. After unsuccessfully litigating his double jeopardy claim in advance of the prosecution's threatened retrial, he pleaded guilty to the murder charge pursuant to a plea agreement.

(A) The court held that the appeal waiver in the plea agreement did not foreclose the petitioner's § 2254 petition. First, it did not expressly provide that he agreed to waive his right to file a § 2254 petition in federal court. Second, unlike the plea agreement in Ricketts v. Adamson 483 U.S. 1 (1987), none of the other terms in the appeal waiver could be construed as an explicit waiver of the right to litigate a double jeopardy claim in federal court.

(B) Nor did the petitioner's guilty plea implicitly waive his double-jeopardy claim. While a guilty plea ordinarily waives nonjurisdictional defects, under Menna v. New York, 432 U.S. 61 (1975), double jeopardy claims cannot be waived because they relate not to the defendant's factual guilt but instead to the government's power to prosecute the defendant. And because the double jeopardy claim could be resolved on the existing record, the guilty plea did not prevent the court from resolving it. Cf. United States v. Broce, 488 U.S. 563 (574) (1988).

(C) Under the test set forth in Blockburger v. United States, 284 U.S. 299 (1932), armed robbery and felony murder predicated on armed robbery are the "same offense." So are armed robbery and theft, because under Arizona law theft is a lesser-included offense of armed robbery. Therefore, theft and felony murder predicated on armed robbery are the "same offense" for double-jeopardy purposes.

(D) But the Arizona Court of Appeals concluded that jeopardy continued as to the felony-murder count because the jury hung on that count (even though it reached a verdict on the armed-robbery count). The court surveyed a "mix of... Supreme Court cases" involving a double jeopardy claim, but found none that "forecloses, as a matter of claim preclusion the retrial, in the same litigation, of a charge upon which the record shows that the jury was unable to come to a verdict." Although two closely relevant Ninth Circuit decisions pointed in opposite directions -- and one of those "provide[d] strong support" for the petitioner's claim, presenting a "very close factual situation to this case" -- and in fact were "almost impossible to reconcile," what mattered is that there was no clearly established federal law, as determined by the Supreme Court.

Judge Burns would have held that the plea agreement foreclosed the petitioner's § 2254 case.

Henry v. Ryan, No. 09-99007 (Fisher, author, with Tallman and Berzon) --- Full disclosure: this is an Arizona FPD case.


The Ninth Circuit affirmed the denial of a § 2254 petition filed by an Arizona death-row prisoner.

(A) The court exercised its discretion to deny a Bradyclaim on the merits because the district court did so in an alternative ruling and the merits had been fully briefed by the parties.

(B) The prosecution did not violate Bradyby failing to disclose drawings and other notes prepared by the petitioner's codefendant at the request of the police. They amount to inadmissible hearsay (not a statement against interest insofar as the codefendant was trying to shift the blame to the petitioner), and in any event they were primarily inculpatory and only a little exculpatory. Moreover, "significant other circumstantial evidence" supported the jury's verdict, and in any event the petitioner had been charged with both premeditated and felony murder, so evidence relating to relative lack of culpability wasn't necessarily exculpatory.

(C) On a second Brady claim, the court resolved it on the basis of a procedural default based on an express procedural bar invoked by the state postconviction court. The petitioner did not qualify for an exception to the state procedural bar based on newly discovered evidence, see Ariz. R. Crim. P. 32.1(e), because his claim reled not only newly discovered evidence but a new analysis of previously existing evidence. Nor did he qualify for the exception for actual innocence, seeAriz. R. Crim. P. 32.1(h), because of the ample evidence of guilty against him. The state procedural bar thus supported federal procedural default. Nor could he show cause and prejudice to excuse the default pursuant to Banks v. Dretke, 540 U.S. 668 (2004), because the prosecution's suppression of the evidence was not the reason for the default on this Brady claim. The petitioner "not only suspected but alleged and had evidentiary support for his claim more than a decade before commencing federal habeas proceedings" [i.e., during state postconviction proceedings].

(D) Although the court was "skeptical" that the petitioner had not procedurally defaulted his Napue claim, the court reached the merits because the parties briefed the merits. The claim failed on the merits because the petitioner did not establish that a police detective knowingly perjured himself at trial.

(E) The petitioner's claim of juror misconduct stemming from the jury's conducting an out-of-court experiment of staging the crime scene was not sufficiently meritorious to warrant a certificate of appealability. The error did not have a substantial and injurious effect on the verdict, because it was reasonable for the state postconviction court to conclude that the experiment merely confirmed what jurors, using their common sense, already knew. Nor was an evidentiary hearing warranted on this claim, because the district court may not speculate on the subjective impact of the experiment on the jurors' thought process.

(F) The court expanded the COA to cover the petitioner's claim under Tennard v. Dretke, 542 U.S. 274 (2004). Any failre to consider mitigating evidence that lacked a causal connection to the crime was harmless. The sentencing judge considered that mitigating evidence as a statutory mitigating factor, which under Arizona law required a causal connection, and concluded it did not warrant leniency; a fortiori, considering it without the causal connection could not have affected the sentence.

(G) The failure of counsel at the petitioner's capital resentencing proceeding to present additional mitigating evidence relating to sexual abuse the petitioner suffered at the hands of his father was not prejudicial because that additional evidence would have allowed counsel merely to emphasize such evidence that was already in the record. In state postconviction proceedings, the petitioner refused to cooperate with an expert hired by his counsel. PCR counsel thus did not present the expert's report. Evidence from this expert thus would not have been persuasive to the sentencing judge.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/06/19/09-99007.pdf

United States v. Sanchez-Aguilar, No. 12-30046 (Watford, author; Tallman also on panel; Fitzgerald (C.D. Cal.) dissenting)


The Ninth Circuit affirmed a conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a). It held that, with respect to a subsequent prosecution based on the same removal order, the judicially-created requirement that the defendant be physically outside the United States for some period of time, see United States v. Meza-Villarello, 602 F.2d 209 (9th Cir. 1979), was not an element of the § 1326 case, and so the government presented sufficient evidence to sustain the conviction. Nor was there any double-jeopardy violation, for it was undisputed that the petitioner had been outside the United States for some period of time between the first and second prosecutions. The court also rejected a collateral attack on the underlying removal order; there was no due process violation because that removal order was the product of expedited removal proceedings and the defendant had received all the process that was provided him under the governing regulations.

Dissenting, District Judge Fitzgerald noted that the holding in Meza-Villarello was based on the denial of a requested jury instruction on the issue, and therefore read that case to require an additional element in illegal-reentry cases involving a subsequent prosecution based on the same removal order. He therefore would treat the defendant's first argument as a proper Rule 29 challenge (whereas the majority treated it as a double-jeopardy claim) and remand for entry of a judgment of acquittal.

The decision is here:


http://cdn.ca9.uscourts.gov/datastore/opinions/2013/06/19/12-30046.pdf

Veltmann-Barragan v. Holder, No. 11-56370 (Ikuta, author; Paez and Ezra (D. Haw.) also on panel)


The Ninth Circuit held that an alien who (1) has previously been deported, (2) subsequently returns to the United States, and (3) fears reinstatement of the prior removal order is not "in custody" for purposes of invoking a district court's habeas jurisdiction under 28 U.S.C. § 2241.

The petitioner became a lawful permanent resident in 1982. In 1999, when she was returning from Mexico, she gave a false name at the port of entry, which led the Border Patrol to deport her under the "expedited removal" procedure. She then returned to the United States using her green card. In 2005, when she applied for naturalization, the government discovered her 1999 attempt to enter under a false name, terminated her legal permanent resident status, and denied her application for naturalization. She did not seek either administrative or judicial review of those decisions. In 2007, she filed a habeas petition under § 2241 attacking the 1999 removal order. The district court denied the petition on the merits, but the Ninth Circuit held that the district court lacked jurisdiction in the first instance and should have dismissed the petition instead. The petitioner did not satisfy the "in custody" requirement of § 2241(a) -- she did not allege that she was physically in custody or subject to any removal order. Although she feared that the government would once again reinstate the 1999 removal order, reinstatement is not automatic, and without the government taking affirmative steps to reinstate, the petitioner was not subject to restraints not shared by the public generally, which is the legal definition of being "in custody" for this purpose.



The decision is here:



http://cdn.ca9.uscourts.gov/datastore/opinions/2013/06/19/11-56370.pdf

US v. Avery, NO. 12-35209 (6-18-13)(Tallman with Tashima and N. Smith).


Years after petitioner was convicted of "honest services" fraud, and after serving four years, petitioner got relief because of Skilling. His offense was no longer a crime.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/06/18/12-35209.pdf

US v. Gonzalez Vasquez, No. 11-30176 (6-18-13)(Kleinfeld with Schroeder and M. Smith).


A proffer made is not a debt unpaid, nor a deal struck. The plea discussions were premised on a proffer that proved less than satisfactory, or truthful, in the government's eyes. There was no plea. Turning to sentencing, the 9th held that a suspended sentence is not like "probation of more than a year" and was not criminal history point worthy. An important sentencing case for interpretation of suspended sentences.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/06/18/11-30176.pdf

US v. Gillenwater, No. 11-30363 (6-17-13)(Paez with Fisher and Gould).


This is an important and interesting decision: Does a defendant have a right to testify at his competency hearing under 18 USC 4241 and 4247? Yes. Can the government use that testimony at trial? Only for impeachment. The 9th also stresses that a defendant has to be warned about disruptive behavior before he is removed from the courtroom, and that disruptive behavior ("you won't be a judge for long" "I'll wait for the Republicans to come back") will prevent him from testifying. Here, the 9th discussed the right to testify, how it is personal, and cannot be waived by counsel at trial, and a competency hearing is like trial. He has the right to testify under the statutory scheme and Constitution. The 9th could not determine if the failure to be allowed to testify is harmless or structural. The 9th sidesteps the issue, finding that it could not be harmless here. The case is vacated and remanded for a new competency hearing, where the defendant could testify.

Aleman v. Uribe, No. 09-55837 (6-14-13)(Gould with Wardlaw and Wolf, Sr. D.J.)

 "Hey, it wasn't a Batson violation, it was a mistake" was the explanation of the prosecutor in striking a Hispanic. The prosecutor explained he meant to strike another, had been ill during voir dire, made bad notes, and attributed a comment made by another prospective juror to the struck juror.  No, contend the petitioners, it was racially tinged. The state courts found it was a credible and race neutral mistake. Under AEDPA deference, so does the 9th. It is reasonable to credit the state courts in finding that the mistake was an honest mistake.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/06/14/12-55837.pdf

US v. Needham, No. 12-50097 (6-14-13)(M. Smith with concurrence by Berzon and concurrence by Tallman).


The defendant allegedly, inappropriately touched a young boy in the restroom. Some police work with a video and credit card from a nearby Jamba Juice stand, led police to the defendant. A search warrant was issued for clothes similar to what the man wore who touched the boy, some other evidence, and then, bare-bones search on computers for child porn, because molesters like child porn. Child porn indeed was found on the iPod. Challenging the search warrant, the defendant argues that it was so bare-bones that no "good faith" Leon exception exists. The 9th found it does. "Good faith" is established because of the precedent that equates qualified immunity against a 1983 suit in a bad search for child porn with "good faith". Berzon grudgingly concurs because the precedent, but grumbles that the tension exists and she would decide differently on a clean slate. Tallman concurs, recognizing precedent, but on his clean slate, he would find probable cause because of "real world" connections.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/06/14/12-50097.pdf

Case o' The Week: Living with Leon -- Needham, Leon, and PC for Child Porn Search Warrants

  In the great flick Leon, the hitman hero is a “cleaner” who quickly and

efficiently resolves messes -- and isn’t terribly interested in what the law actually requires.

  Required viewing before grappling with the Supreme’s line of Leon “good faith” jurisprudence. United States v. Needham, 2013 WL 2665889 (9th Cir. June 14, 2013), decision available here.

Players: (Reluctant?) decision by Judge M. Smith, joined by Judges Berzon and Tallman (both concurring, on very different grounds). Hard-fought appeal by CD Cal AFPD Matt Larsen.

Facts: A mother alleged Needham molested her son. Id. at *1. A detective got a warrant to search Needham’s home. Id. at *2. The “Statement of Probable Cause” reported the facts surrounding the alleged molestation, that Needham was a registered sex offender, and that a decade before – when Needham was 16 – he had been arrested for lewd and lascivious with a child, and charged with sex abuse of a child and possession of obscene matter. Id. The detective opined that Needham had an unnatural sexual interest in children, and that “these people” collected child porn. Id. The detective did not explain how she learned the “characteristics” of those with sexual interest in children. Id. 

  A search revealed child porn on Needham’s iPod, he was charged federally, and moved to suppress based on the warrant’s lack of probable cause. Id. at *3. The district court denied the motion, holding the search was in good faith reliance on the warrant, and the Leon exception to the exclusionary rule applied. Id.

Issue(s): “Needham first contends that the warrant affidavit did not contain facts sufficient to find probable cause to search his residence for child pornography. In particular, he argues that [the detective’s] assertions that Needham ‘has an unnatural sexual interest in children’ and that ‘[t]hese people collect sexually explicit material of children’ are inadequate to support probable cause that Needham possessed child pornography in his home. He also contends that the district court erred in applying Leon's good faith exception to the exclusionary rule in this case.” Id.

Held: “Like the officers in Dougherty, the . . . . officers in this case relied on a warrant predicated on the bare inference that those who molest children are likely to possess child pornography. Since the date we decided Dougherty, it is clear in this circuit that such an inference, alone, does not establish probable cause to search a suspected child molester's home for child pornography. But because the standard for granting qualified immunity is the same as the standard of objective reasonableness under Leon, we cannot consistently grant qualified immunity to officers in Dougherty, who relied on the warrant in that case, and find that reliance on a similar type of warrant in this case (which was decided before Dougherty ) was objectively unreasonable. We thus conclude that the search in this case was executed in objectively reasonable reliance on the search warrant.” Id. at *5.

Of Note: Judge M. Smith (grudgingly, it seems) finds that the Leon issue is controlled by Dougherty v. City of Covina, 654 F.3d 892 (9th Cir. 2011). Dougherty is a Judge N.R. Smith opinion granting qualified immunity on a very similar warrant (Judge B. Fletcher, interestingly, joined that decision). 

  In Needham, Judge Tallman describes Dougherty as a “flawed decision,” id. at *12 (Tallman, J., concurring), and Judge Berzon complains of the “considerable tension” in Dougherty’s internal reasoning, id. at *11 (Berzon, J., concurring). (Though, to be clear, these concurring judges dislike Dougherty for very different reasons). Needham and Dougherty illustrate the huge price of Leon: “good faith” means bad law wags a long tail, sweeping over bad searches for years.

How to Use: Get past the frustrating Leon holding, and you’ll find another Berzon jewel: a wonderful exegesis on the probable cause required for a search warrant. Needham, 2013 WL 2665889 at *6 (Berzon, J. concurring). Clearly and persuasively written, Judge Berzon’s opinion is step one for a 4^th challenge to warrants lacking PC.  

                                               

For Further Reading: Prosecution of another terrorism case has stalled, because sequestration has forced a respected Federal Defender to pull out of the defense of the case. See "Federal Defender Wants Out of Terrorism Case Due to Budget Cuts," here. 

  In the same week, a convicted killer’s execution proceedings stalled when a different Federal Defender couldn’t pay travel and witness fees because of sequestration. See “Budget fight delays justice for mother of slain KCK girl Pamela Butler” here.   The mother of the child-victim – frustrated by the delays – offered to “help the defense out . . . . If they want me to get a fundraiser together to help them get their witnesses in, I’ll do that.” Id.

   Small tastes of the world that awaits, when -23% budget cuts hit all Federal Defenders next fiscal year. See Recorder article here.

Image of Leon and Mathilda from http://jrm.cc/leon-the-professional Image of Ms. Cherri West, with her daughter Pamela Butler, from http://www.kansascity.com/2013/06/09/4282348/washington-budget-fight-delays.html

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

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