United States v. Tercero, No. 12-10404 (10-31-13) (Nelson with M. Smith and Ikuta).

The 9th affirms the district court's reduction of a crack sentence to the low end of the readjusted guideline under the Fair Sentencing Act. The 9th denied the defendant's appeal for a further reduction under 1B1.10. The 9th held that Dillon, 130 S.Ct 2683 (2010) controls, and requires, in a retroactive sentence reduction, that 1B1.10 be followed. Finally, the challenge to 1B1.10 under the Administrative Procedures Act (APA) fails because the Commission is not an agency subject to the APA.

United States v. Cuenca-Vega, No. 12-10356 (9th Cir. Oct. 30, 2013) (panel is Reinhardt, Noonan, and Hurwitz)

--- A divided panel of the Ninth Circuit reversed a jury-trial conviction for illegal reentry because the district court erred in denying his collateral attack on the validity of the underlying deportation order and thus erred in denying the defendant's motion to dismiss the indictment.

The defendant, who previously held a green card and had been in the United States since he was in junior high, pleaded nolo contendered to possession of methamphetamine, served 60 days in the county jail, and was deported. He challenged the deportation order on the ground that the IJ denied him due process by failing to advise him that he is eligible for voluntary departure. (He also raised two other grounds, which were not at issue in the appeal.) The majority concluded that this failure invalidated the underlying removal order.

The government conceded that the IJ failed to inform the defendant that he was eligible for voluntary departure, but argued that this was not a plausible ground for relief, see United States v. Rojas-Pedroza, 716 F.3d 1253 (9th Cir. 2013), because the defendant could not show that he actually would have accepted voluntary departure in the removal proceedings. The majority rejected this argument because it "overstate[d] Cuenca's burden to demonstrate a plausible ground for relief." All the defendant has to show is that the error may have affected the outcome of the proceeding; once that prima facie showing is made, the government then bears the burden of showing that it could not have. United States v. Cerda-Pena, 799 F.2d 1374 (9th Cir. 1986). Here, the government's concession made that prima facie showing.

Moreover, the majority said that the government did not meet its burden of persuasion. First, the fact that the defendant was trying to expunge his drug conviction while the removal proceedings were pending "was not incompatible with voluntary departure" because he could have continued to pursue expungement from abroad and then, if successful, reopened his removal proceedings on that basis. See Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006). Moreover, voluntary departure would not have exposed the defendant to a future illegal-reentry prosecution.

The majority also rejected the government's plain-error argument, concluding that the voluntary-departure error was properly before the court even though the defendant did not make the argument before the district court. It is not a new claim, but instead an alternative argument to support "what has been his consistent claim from the beginning" -- that the removal order is invalid because it violated due process. See Yee v. City of Escondido, 503 U.S. 519 (1992). Even if plain-error review were appropriate, the majority held that the defendant met that standard. It was plain that the deportation order was invalid, and that invalidity affected the outcome of the district-court proceedings because if the district court had recognized as much, it would have dismissed the illegal-reentry indictment with prejudice. "When an individual is convicted based on an invalid deportation order that violated his right to due process, it must necessarily have a serious effect on the fairness and integrity of judicial proceedings."

Judge Hurwitz (!) dissented. First, he would have applied plain-error review because the defendant did not make the specific argument about the invalidity of the removal order before the district court. Here, he argued, "the only possible relationship between the claims Cuenca made below and the one he makes here is that they each derive generally from the Due Process Clause. That is not nearly close enough" to invoke the Yee preservation rule. Before the district court, the defendant had focused on the substantive correctness of the removal order, while the voluntary-departure claim was "an entirely different alleged error."

Nor was the error as plain to Judge Hurwitz as it was to the majority. It cannot have denied due process for the district court, acting in his view as an appellate court with respect to the removal proceedings, to have failed to "anticipate an argument never made." Nor was it plausible to Judge Hurwitz that the defendant would have accepted voluntary departure if it had been offered to him. The government's concession of eligibility did not meet the plausibility requirement on which the majority relied. "The majority's speculation is not implausible. But one could equally well speculate to the contrary." Conceding removability would have required the defendant to admit that his methamphetamine-possession crime was a "controlled substance offense." And instead of pointing to all the ways that the defendant could have continued to press from abroad his case for remaining in the United States, Judge Hurwitz said, the majority should have given the government the chance to do so for the first time in front of the district court.
The decision is here:

http://cdn.ca9.uscourts.gov/datastore/memoranda/2013/10/30/12-10356_rv1.pdf

Amado v. Gonzalez, No. 11-56420 (10-30-13)(Hellerstein, Sr. D.J., with Fletcher; dissent by Rawlinson).

The petitioner was convicted of murder in aiding and abetting a senseless gang shooting on a public bus. The petitioner was placed at the bus stop, but there was no direct evidence that he was a gang member. However, a witness did say he carried a weapon. The prosecutor never turned over the fact that the witness had committed a robbery, was on probation, and was a gang member. The state court thought this was harmless. The 9th held that this was a clear Brady violation and a violation of established Supreme Court law. It was prejudicial because the witness was the only one who saw the gun and was critical. Rawlinson dissented. She would defer to the state's application of Brady, and find that there was no prejudice given the adding and abetting conviction and the witness's own self impeachment at trial, including forgetfulness and failure to identify petitioner at trial.

United States v. Kyle, 12-10208 (10-30-13) (Marshall, Sr. D.J., with Berzon and Bybee).

Imagine a court looking at a plea agreement, indicating she will reject the terms, but then musing that if the sentence, was say, 60 months rather than 30, because of various factors and reasons, well maybe the court will accept it. Has the court engaged in plea negotiations which violate Fed R Crim P 11(c)(1)(C)? In this case, the 9th indicates that it does, and under a plain error standard. The defendant here pled to child porn charges. The first plea was to 360 months. The court rejected, and then the court indicated that it would consider a plea that would be less than life, and explained his reasoning. Under a second plea, the defendant got 450 months.

The 9th found plain error in the court's musings about factors involved, and hypothetically what a sentence might be. This put pressure on the defendant. The 9th also found that there was no invited error in counsel wondering possibly if the court would take any plea. The 9th stressed that the court impermissibly and prejudicially engaged in plea negotiations when the court encourages a defendant to plead guilty or commits itself to a sentence of a certain level of severity. The 9th joins with the 5th and 7th circuits in such clarity. The court simply cannot apply any pressure or give any indication that it would commit to a sentence.

The 9th also applied United States v. Davila, 133 S. Ct 2139 (2013) which rejected the automatic vacation of the plea, and instead looked at the whole record to see if the defendant was prejudiced. That is, would the defendant not have agreed to the plea under a reasonable probability absent the court's remarks.

The case is remanded to a different judge.

This is a reminder about the court's role, which is none, in plea negotiations. Asking the court, after a rejection, what the court would accept, is a violation.

Lujan v. Garcia, No. 10-55637 (10-29-13)(Bencivengo, D.J., with Tashima and Bybee).

The 9th affirms in part the granting of habeas relief in a first degree murder case. The police violated Miranda when they failed to advise the petitioner of his right to counsel during custodial interrogations. The interesting issue is the petitioner's subsequent statements made during trial testimony. The 9th affirms the suppression of such statements in the state's case in chief as "fruit of the poisonous tree." Such relief has not been undermined by Elstad or Supreme Court cases. The 9th did vacate the district court's relief, which was to give the state the option of release or reduction of the charges to second degree murder. The latter option -- reduction -- was not proposed by the state courts, and overstepped the admittedly broad powers of relief a district court has in shaping habeas relief. The district court fashioned the relief in reviewing the trial evidence, and this is inappropriate under the circumstances.

Case o' The Week: Another "Black" Eye for ATF, but Conviction Survives -- US v. Black, Outrageous Gov't Conduct, and Stash Houses

The Hon. John T. Noonan, Jr.

“Massively involved in the manufacture of the crime, the ATF's actions constitute conduct disgraceful to the federal government. It is not a function of our government to entice into criminal activity unsuspecting people engaged in lawful conduct; not a function to invent a fiction in order to bait a trap for the innocent; not a function to collect conspirators to carry out a script written by the government. As the executive branch of our government has failed to disavow this conduct, it becomes the duty of the judicial branch to refuse to accept these actions as legitimate elements of a criminal case in a federal court.”

   The good news? Judge Noonan, an experienced and respected Circuit Judge, correctly calls-out this ATF manufactured-crime scheme as a “disgrace.”

  The bad news? He’s writing in dissent. United States v. Black, 2013 WL 5734381 (9th Cir. Oct. 23, 2013), *20 (Noonan, J., dissenting), decision available here.

Players: Decision by Judge Fisher, joined by Judge Graber. Dissent by Judge Noonan.

Facts: ATF brought a Florida snitch to Arizona (where he had never been), and paid him $100 a day to troll seedy Glendale bars to find someone willing to rob a fake stash house. Id. at *2. This trolling snagged Simpson. The snitch introduced this defendant to an undercover agent. Id. Although Simpson first wanted to do the robbery with one fellow “goon,” the agent convinced Simpson to recruit others (including Black). Id. at *4. Simpson bragged about previous such robberies (though no later evidence ever supported these claims). Id. at *3-*4. Simpson’s “crew” ultimately showed up at a warehouse as directed by the undercover agent, were arrested, and were convicted of conspiring to possess cocaine with intent to distribute, and use of a firearm in furtherance of drug trafficking. Id. at *4. (Then-district) Judge Murguia denied the motion to dismiss the indictment for outrageous government conduct. Id. at *1.

Issue(s): Is it outrageous government conduct for agents to manufacture a crime, when there was no showing that “the defendant was already involved in a continuing series of similar crimes, or the charged criminal enterprise was already in progress at the time the government agent because involved.” Id. at *17 (Noonan, J. dissenting) (citing Bonanno).

Held: “We . . . affirm the denial of the defendants’ motions to dismiss for outrageous government conduct. Although the initiation of the reverse sting operation here raises questions about possible overreaching . . . the defendants have not met the extremely high standard . . . of demonstrating that the facts underlying their arrest and prosecution are so extreme as to violate fundamental fairness or are so grossly shocking as to violate the universal sentence of justice.” Id. at *1 (internal quotations and citations omitted) (emphasis in original). 

  “We also affirm the district court’s rejection of sentencing entrapment.” Id.

Of Note: Much of Black is now standard (albeit disappointing) fare. What seems new is the Court’s tolerance of a crime truly scripted by ATF from start to finish, with defendants ensnared by a paid imported snitch trolling bars in “the bad parts of town.” Id. at *15. In a compelling dissent, Judge Noonan wonders why the majority abandons “good law” – the five-part test of Bonanno. Id. at *17. Judge Noonan worries that there is now no standard to control these reverse sting operations, and flatly rejects the majority’s heavy reliance on the defendants’ (unsubstantiated) boasting to the undercover agent as enough assurance to justify this tactic. Id. at *16-*17. Judge Noonan opines that this decision tolerates “ATF . . . actions [that] constitute conduct disgraceful to the federal government.” Id. at *20 (Noonan, J., dissenting).

How to Use: To be fair, author Judge Fisher is sensitive to dissenting Judge Noonan’s “compelling concerns.” Id. at *12 & n. 13. Judge Fisher hints heavily that the defendants’ video and tape-recorded boasts of prior robberies weighed strongly in the government’s favor, as the Court weighed whether the defendants were actually willing to undertake the robbery without the agents’ goading. Id. at *11. A case on similar facts, without those recordings, might be the stash house conviction that finally rings the outrageous conduct bell.

                                               

For Further Reading: Two weeks before Black was decided, Judge Silverman (joined by Judge Fisher) delivered a terrific stash house entrapment decision. UnitedStates v. Cortes, 2013 WL 5539622 (9th Cir. Oct. 9, 2013), blog here. Although Black involved a snitch, manufactured drug amounts, allegations of sentencing entrapment, a stash house robbery, and important new Apprendi rules in this context, Judge Silverman’s great Cortes case earned nary a cite in Judge Fisher’s Black opinion or in the related mem. dispo (that discusses entrapment instructions at the Black trial). See Black, 2013 WL 5738871 (mem.) A curious omission.

Image of the Hon. Judge John T. Noonan from http://www.flickr.com/photos/cmichel67/8964232516/sizes/o/in/photostream/

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

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US v. Steele, No. 12-30005 (10-24-13) (Christen with Pregerson and Murguia).

The 9th establishes a new test if a defendant asks the district court to rule on IAC pre-judgment. The 9th states that when an IAC claim is first raised in the district court pre-judgment, the court may, and at times should, consider the claim at that point in the proceeding. The consideration is at the discretion of the district court. The test is adopted from the Second Circuit. In the case here, a criminal defense lawyer tried to have his wife and mother-in-law killed (murder for hire) and then obstructed justice. The defense was that the defendant was framed. At trial, the defense counsel failed to subpoena his own tape expert and the expert could not appear. He would have testified that there seemed to be a large number of gaps on a recording of the defendant and his wife (who still covered for defendant!) where the defendant asked her to say she could not identify him. Where was the expert? In Bora Bora on vacation. The trial court said it was the defense's own fault. On appeal, using the new test, the 9th held no error in denying the motion for new trial on IAC grounds because the record was undeveloped as to prejudice, or impact, or possible strategy. A district court could consider such a claim if the record was complete, or was plainly apparent on the facts before the court.

US v. Black, No. 11-10036 (10-23-13) (Fisher with Graber; dissent by Noonan).

It’s not as if there isn't enough crime for the ATF; they decided to invent and construct a "home invasion" offense, and then recruit (entrap) home invaders. That is what happened here -- the ATF brought in a CI to troll for those willing to invade a home for drugs. It wasn't long before the CI got some willing participants, who eventually showed up, with some pushing, at a designated spot, armed of course. They were arrested. The 9th affirmed the convictions and sentences. The 9th stated they were concerned with the ATF creating this offense, and recruiting, but found it wasn't "outrageous gov’t misconduct." The defendants took steps, and boasted about past activities. The 9th also found that the court did not err in finding failure to prove sentencing entrapment beyond a preponderance. Dissenting, Noonan decried the govt’s activities in creating the offense, and then going out and recruiting participants, none of whom were presently or in the past involved in home invasions or in concerted actions. Noonan found the gov’t testing the morals of citizens objectionable. He also took issue with the misconduct test, arguing that the focus should be on whether the defendants were presently engaged in such conduct. Noonan also argued that the gov’t had engaged in sentencing entrapment.

This case is a good starting point for an explanation of gov't misconduct: (1) known criminal characteristics of defendants; (2) individualized suspicion of defendants; (3) the govt's role in creating the crime of conviction; (4) gov’t encouragement; (5) the nature of the gov’t participation in the crime; and (6) the nature of the crime being pursued and necessity. The opinion sets out the test, and goes through the facts and policies. Dissenting, Noonan argues for a different emphasis but also uses the facts, demonstrating that the majority makes too much of the past inclinations of the defendants and their history.

Case o' The Week: Don't Do the Crime, Still Do the Time -- Christensen and non-criminal conduct for upward variance

   Have you ever lost money when you decided to “buy, buy, buy” a legitimate investment, only to watch it tank soon after? 

  Take heart -- in the Ninth, your broker can now do time. “In affirming the sentence in the present case, the majority obfuscates the fact that is apparent from any fair reading of the record: the district court based its above-guidelines sentence on investor losses not caused by Christensen’s criminal conduct.” United States v. Christensen, 2013 WL 5583827, *10 (9th Cir. Oct. 11, 2013) (Tashima, J., dissenting) (emphasis added), decision available here.

Players: Decision by visiting, Senior, D.J. Safford (N.D. Fla.), joined by Judge Bybee. Vigorous and compelling dissent by Judge Tashima.

Facts: Christensen defrauded folks in real estate investments. Id. at *1. Some investors were older, some were friends of the defendant, several victims had reported negative life events because of the losses – such as divorce. Id. at *2-*3. Christensen used above half of the fraudulent proceeds for personal expenses. Id. at *2. Many of the investors who lost money, however, and much of the money lost, was due to bad investments or bad luck: the funds weren’t fraudulently diverted. Id. at *6. The parties and Probation all agreed on the criminal loss amount. Id. at *1. Christensen pleaded pursuant to an Information, to a deal that jointly recommended a correct guideline sentence of 33 months. Id. at *1. 

  The district court busted the deal, and varied upward nearly double from the joint guideline recommendation to sixty months in custody. Id. at *1. Much of the rationale for that upward variance was victim complaints on the impact on the losses on their lives – although much of those losses were simply investments gone bad, and not criminal diversion of funds. Id. at *3.

Issue(s): Were the “’life-destroying impacts’ [of the victims’ losses] proper for the district court to consider even if not tied to the loss Christensen caused by misappropriating investor funds[?]” Id. at *8 (emphasis added). [Or, as put by dissenting Judge Tashima, can a district court impose “an upward variance based on non-criminal conduct[?]” Id. at *14 (Tashima, J. dissenting).

Held: “These ‘life-destroying impacts,’ supported by victim statements, provide greater insight into Christensen’s ‘background, character, and conduct’ that the district court was entitled to rely on in determining that for a specified loss resulting from criminal conduct, the Guidelines did not adequately account for the seriousness of Christensen’s offense, provide adequate deterrence, or sufficiently protect the public and innocent investors from the infliction of further harm at the hands of Christensen.” Id. at *7.

Of Note: This is an enormously troubling decision. Either the sentencing court simply made a mistake in attributing all of the victims’ woes to fraudulent losses, or Christensen is now serving twice as much time in federal prison because his investors lost money in legal, legitimate investments. 

  Judge Tashima calls it like he sees it – he complains “the majority paints a grossly distorted picture of the district court’s decisionmaking process.” Id. at *15 (Tashima, J., dissenting). Judge Tashima sounds the alarm at the new Ninth law – that an upward variance can be imposed for non-criminal conduct! Id. at *14. He rejects as “patently absurd” the argument that the language of Section 3661 permits non-criminal conduct to be used for an upward variance – if that was the case, a defendant could get a higher sentence for his “eating or dressing habits, the tradition or school of yoga he favors, or the regularity with which he recycles.” Id. at *15.  

  It is a pointed, thoughtful, and convincing dissent that should trigger en banc interest.

How to Use: Even the government in Christensen “expressly disclaimed reliance on any notion that the district court could permissibly base its upward variance on non-criminal conduct.” Id. at *13 (Tashima, J., dissenting). Yet the majority digs in, expressly endorsing non-criminal conduct as a fair game for an upward departure. Id. at *7 & n.2. Object and object again if non-criminal conduct appears in the rationale for an upward variance – the last chapter on this peculiar sentencing twist has not yet been written.  

                                               

For Further Reading: The Continuing Resolution that passed last week included a $26 million anomaly for Defender Services. That bump helps pay for deferred CJA vouchers, and ensures new vouchers submitted during the CR period can be paid. See Fact Sheet here. 

   We need an additional anomaly of over $50 million this winter to restore the Defender Services account to some semblance of normalcy.

Image of investment advisor Jim Cramer from http://www.v3im.com/2012/03/linkedins-growth-fuels-a-buy-from-goldman/#axzz2iD9jFJsF

Image of prisoner doing yoga from http://images.elephantjournal.com/wp-content/uploads/2012/02/MG_8943.jpg

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

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