Saturday, March 30, 2013

Case o' The Week: "Must Be Lying" Must Be Error (But Harmless!) - Ruiz and Closing Arguments

Not content to merely allude to improper arguments, an AUSA emphasizes them in a Powerpoint presentation during closing.  The result? “Sadly condoned by the incantation: “harmless error review.”  United States v. Ruiz, 2013 WL 1197945 (9th Cir. Mar. 26, 2013) (Pregerson, J., concurring), decision available here.

Players: Decision by Judge Paez. Reluctant concurrence by Judge Pregerson. Hard-fought appeal by CD Cal AFPD Brianna Fuller.

Facts: Sisters Diana and Daisy called the police about a man they later identified as Raymond Ruiz: he was holding a shotgun, mumbling, and walking down a street. Id. at *1. Five minutes after their call, cops in a helicopter saw a man run behind a house and throw a shoe box-sized item over a fence into a vacant lot. Id. Another cop arrived and found a box in the lot with 12-gauge shotgun shells. Id. Yet another officer found Ruiz, trying to get into the house. Id. A 12-gauge shotgun was discovered an arm’s length from Ruiz. Id. At trial the prosecutor used Powerpoint slides – over defense objection – that insisted the jury could only find Ruiz not guilty if the jury found that the officers “lied to you.” Id. at *3.
Issue(s): “At the heart of Ruiz’s argument is his contention that the prosecutor’s statement presented the jury with a false choice between his and the officers’ accounts, since the officers could have testified honestly, but nonetheless mistakenly perceived the events on the night in question. This false choice, he asserts, improperly shifted the burden of proof to the defense.” Id. at *3.

Held:[P]rosecutors have been admonished time and again to avoid statements to the effect that, if the defendant is innocent, government agents must be lying.” Id. at *3 (quotations and citation omitted). “Here, the prosecutor’s argument came very close to altering the burden of proof . . . [T]he prsoecutor’s argument that either the [officer] or Ruiz must be lying could well be construed as arguing an inference unsupported by the evidence, and thereby altering the burden of proof.” Id. at *4. “We need not decide the issue . . . because we conclude that, even if the prosecutor committed error, the error was harmless . . . “In light of the strength of the evidence, the prosecutor’s evidence did not materially affect the fairness of Ruiz’s trial.Id. at *5.

Of Note: Judge Pregerson “reluctantly” joins the majority opinion, but write separately to specifically question the slides used by the prosecutor in closing argument. Id. at *7 (Pregerson, J., concurring). As explained by Judge Pregerson, the prosecutor’s argument “distorts the burden of proof and misstates the law, but sadly is condoned by the incantation: ‘harmless error review.’” Id. at *7. 
  Interestingly, two years ago Judge Paez penned one of the best harmless error cases in the Ninth. See United States v. Hunt, 656 F.3d 906 (9th Cir. 2011); see also blog here. Frustrating to here see harmless error shield plainly improper argument by the prosecutor.

How to Use: Little to celebrate in Ruiz, but there’s an informative (albeit disappointing)
discussion on jury unanimity in a gun case. Id. at *2. Ruiz was charged with one 922(g) count that encompassed three theories: possessing the gun as seen by the sisters, possessing the ammo in the box, and constructive possession of the shotgun found by the cop. Id. at *1. Not a problem, assures the Ninth: Ruiz was charged with possession of the gun and ammo during one ten-minute period on one night in one location. Id. at *2. The jurors could convict on whatever evidence that they felt supported Ruiz’s guilt, even if they failed to agree on which evidence was persuasive. Id. at *2. (Appropriate that a shotgun was at issue here: this is prosecution by spray shot, where the jury could have split 4/4/4 on the three theories and still convicted!)
For Further Reading: Did you know that federal agents have tracked people here in
NorCal, using “stingray” cell phone interception technology, and have done so without a warrant? News to us too. Read the fascinating ACLU account, including an intriguing AUSA e-mail exchange on the subject, here. 
  If you have a wiretap, it’s a safe bet your clients were electronically tracked under the guise of a vanilla pen register (a register obtained with an application that didn’t reveal it was authorizing a tracking device). The ACLU’s great work will make for some lively Title III litigation.   

 Stingray illustration from

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


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Wednesday, March 27, 2013

U.S. v. Jinian, No. 11-10593 (03-26-13) (Murguia with Nelson; concurrence by Christen)
When the cat's away, the mice will play...or defraud.  Here, the board of directors was in Europe; the defendant was the CEO.  He authorized the cutting of checks from one company under his control in excess of his salary, and to get advances.  He eventually got caught and charged with numerous counts of wire fraud.  His defense was that there was no wire fraud as the checks were deposited in a bank, and he got the funds.  The fact that the fraudulent checks were transferred subsequently over wire to another bank was not part of his scheme.  Yes it was, concluded the 9th.  The scheme was ongoing, and the deposit of the checks required their clearing, or the scheme would have stopped.  The 9th also held that there was no need to read a materiality or intent into the interstate requirement.  Christen concurred to emphasize that the scheme itself was not a one-off or one time act, but ongoing.  This ongoing nature required the checks to be paid, and so it required wire transfer.

U.S. v. Ruiz, No. 10-50211 (Paez with Conlon; concurrence by Pregerson)
The defendant was convicted of being a felon in possession.  He was chased, and threw a box over the fence, which had shotgun shells, and when he was caught, a rifle was found nearby.  The defense was "what rifle?" and "that wasn't my box."  A statement claiming ownership was disputed.  At trial, it became a credibility issue.  In closing, the prosecutor argued that to believe the defendant, the jury had to conclude that the officers were lying...all by way of PowerPoint.  Defendant only objected to one slide (lying) and so other egregious behavior was decided by the plain error rule.  Even with the objection, the 9th concluded that any error was harmless.  Yet, the 9th took the prosecutor to task for presenting such a dichotomy.  The opinion overviews the cases that forbid such argument (to acquit you must find the officers lying).  The officers could be mistaken, or the evidence was not beyond reasonable doubt.  The 9th also found that the indictment was not duplicitous because the defendant possessed the rifle and ammunition in one span of 10 minutes.  It did not have to be separated.  Pregerson concurred, admonishing the government for its argument.

Tuesday, March 26, 2013

How To Use The Supreme Court's Jardines Opinion Beyond Dog Sniff Cases

Sometimes the Supreme Court decides what looks like a narrow case in a way that has a much broader impact. Jardines is just such a case. A Florida police officer walked Franky, his drug sniffing dog, onto the porch of Joelis Jardines. After the dog bracketed the door, Franky sat down, indicating drugs were present in the house. The officer returned to his vehicle, requested a search warrant, and, pursuant to the search warrant, found Mr. Jardines’ marijuana grow. The Florida Supreme Court held that a Fourth Amendment search had occurred without a warrant when the dog sniffed at the door.

Justice Scalia wrote for a 5-to-4 majority holding that the officer’s behavior on the porch constituted a search within the meaning of the Fourth Amendment. In doing so, he builds and elaborates on the GPS decision in Jones and the infra-red heat detection decision in Kyllo, both of which Justice Scalia also authored. Justice Scalia begins by firming up the foundational approach to Fourth Amendment issues set out in Jones: although the Katz reasonable expectation of privacy analysis may add to the baseline, it does not subtract anything from the Fourth Amendment’s protections when the government engages in a physical intrusion on a constitutionally protected area. In other words, the starting point is to determine whether the government infringed upon a protected property interest, then address the additional layer of analysis of whether there is an intrusion upon a reasonable expectation of privacy.

The Court then provides some very useful language on the sanctity of home and the immediately surrounding area – the curtilage. “The front porch is the classic exemplar of an area adjacent to the home and to which the activity of home life extends.” Once the intrusion upon property was established, the remaining question was whether there was permission to do so: “As it is undisputed that the detectives had all four of their feet and all four of their companion’s firmly planted on the constitutionally protected extension of Jardines’ home, the only question is whether he had given his leave (even implicitly) for them to do so. He had not.” Contrasting the dog sniff with Girl Scouts and trick-or-treaters, Justice Scalia found no implicit invitation for a search on the porch because “the background social norms that invite a visitor to the front door do not invite him there to conduct a search.”

In linking the decision to the officers’ purpose, Justice Scalia had to address the general rule – elaborated by Justice Scalia in Whren – that the subjective intent of the officer is irrelevant. The distinction depends upon the stage of analysis. In Whren, an objectively reasonable search was not vitiated by the improper motive of the officer – probable cause for the traffic stop rendered its pretextual purpose irrelevant. Here, in contrast, the question was whether there was an objectively reasonable search in the first place, which “depends upon the purpose for which they entered. Here, their behavior objectively reveals a purpose to conduct a search, which is not what anyone would think he had license to do.”

Justice Scalia then addressed the argument that dog sniffs in general do not implicate an expectation of privacy. The Court explicitly applied the Jones formulation of the reasonable-expectations test as in addition to, not a substitute for, the traditional property-based understanding of the Fourth Amendment. Based on that analysis, the Court did not need to rule on the reasonable expectation of privacy: “One virtue of the Fourth Amendment’s property-rights base line is that it keeps easy cases easy.” Even so, Justice Scalia went on to address the argument that the long-standing use of forensic dogs dissipated any reasonable expectation of privacy, which the State apparently invoked to address language in Kyllo about technological innovations. Here’s the stake in the heart of that argument: “[W]hen the government uses a physical intrusion to explore details of the home (including its curtilage), the antiquity of the tools that they bring along is irrelevant.”

The breakdown of the Justices in this case is fascinating. Justice Scalia was joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan. Justice Kagan, joined by Justices Ginsburg and Sotomayor, provided a cheerful concurrence finding that the search also violated the Fourth Amendment under the reasonable expectation of privacy test. Justice Alito’s dissent finds no problem with officers intruding upon porches with a dog in tow, even where no conversation ensues. This case was surprisingly close: Justice Breyer – who was part of the Kyllo majority – joined with Justice Kennedy and the Chief Justice in Justice Alito’s dissent.

We’re not going to see a lot of cases that match the Jardines facts (and how often are we going to find a marijuana grow case in which the defendant’s name means “gardens” in Spanish?). But I suspect that the Jardines opinion will be showing up in a lot of our memoranda in support of motions to suppress. We will be analyzing Fourth Amendment issues under both property-rights and privacy-expectations. We will be using language on the importance of protecting the home, including the curtilage, from unwarranted governmental intrusions. We will be taking a second look at knock-and-talks and other visual intrusions from outside the home. We will be analyzing when the purpose of the law enforcement officer is relevant to determine the objective reasonableness of the intrusion. And we will be incorporating the Court’s treatment of the dog’s nose as – in Justice Kagan’s words – “a super-sensitive instrument” when we are confronted with technologically advanced government intrusions.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Gulbrandson v. Ryan, No. 07-99012 (03-18-13) (Ikuta with Rawlinson; partial dissent by Nelson)
The 9th affirms the denial of a capital petition.  It held that no IAC occurred because the decisions not to call the petitioner at sentencing for mitigation was tactical.  The decision and failure to call the mental health expert to testify about the petitioner's mental state at time of the brutal murder was not IAC because the testimony was cumulative.  Nelson dissented from this, arguing that the decision not to call the expert warranted an evidentiary hearing.
Poyson v. Ryan, No. 10-99005 (03-22-13) (Fisher with Ikuta; partial concurrence/partial dissent by Thomas)
This is an Arizona FPD case.  In a capital habeas, the 9th examines whether the Arizona Supreme Court's applied a causal nexus between mitigation evidence (mental illness and childhood) and the offense.  If it did so, it would be unconstitutional.  The nexus cannot act as a screening or a weighing for mitigation.  The 9th finds that the record is ambiguous, and although the court looked for a nexus, it is unclear whether it actually applied it.  As such, under AEDPA, deference is due.  Dissenting, Thomas would find that the Arizona Supreme Court did in fact employ a nexus between the crime and mitigation and therefore violated Eddings and was unconstitutional.  There was, to Thomas, no other way to read the record.

Saturday, March 23, 2013

Case o' the Week: Trip Kings a Losing Hand - King, Probation Searches, and the Fourth Amendment

King I (panel): We think that the Ninth has gotten it wrong, and suspect that the suspicionless search of probationers conflicts with Supreme Court precedent in Samson.
– Great!

King II (en banc): We overrule Ninth precedent holding that there is no constitutional difference between probation and parole for purposes of the fourth amendment, and remand to the panel to tackle again.
– Fantastic!

King III (on remand to panel): The suspicionless search of this probationer was ok.
– ?!?

United States v. King, 2013 WL 886161 (9th Cir. Mar. 8, 2013), decision available here.

Players: Decision by Judge Graber, joined by Judge Tallman. Dissent by Judge Berzon. Hard-fought appeal by ND Cal AFPD Dan Blank and R&W Attorney Steven Koeninger.

Facts: King was suspected of a homicide. Id. at *1. S.F. Police learned King was on felony probation. His probation agreement stated that he was “subject to a warrantless search condition, as to [his] . . . premises . . . with or without probable cause . . .” Id.(emphasis added). A search of King’s residence produced a shotgun. Id. 
 The district court denied King’s suppression motion, finding reasonable suspicion supported the search. Id. 
 This panel found reasonable suspicion did not exist, but held that under the Ninth’s Baker decision, a suspicionless search of a probationer did not violate the Fourth Amendment. Id.
 The en banc court reversed and remanded to the panel, in light of the Supreme’s decision in Samson v. California, 547 U.S. 843 (2006).  See blog entry here

Issue(s): “The question that we must answer is whether the Fourth Amendment permits a suspicionless search of a probationer’s residence.” Id. at *1. Or “whether the probation condition so diminished, or completely eliminated, the defendant’s reasonable expectation of privacy, that a search by a law enforcement officer without any individualized suspicion [satisfies] the reasonableness requirement of the Fourth Amendment.” Id. at *2.

Held:We hold that such a search is permissible when, as here, the probationer has accepted a suspicionless-search condition as part of a probation agreement. We therefore affirm.” Id. “[W]e . . . conclude that Defendant’s expectation of privacy was small. We hold, therefore, that the search conducted here intruded on Defendant’s legitimate expectation of privacy only slightly.” Id. at *2.

Hon. Marsha S. Berzon
Of Note: Dissenting Judge Berzon wonders what probation agreement the majority is reading. Id. at *5 (Berzon, J., dissenting). 
  Writing for the majority, Judge Graber assures us that King has a probation search condition that permitted “suspicionless searches.” Id. at *3. Actually, as Judge Berzon correctly observes, King’s search condition only allowed searches “without probable cause.” Id. at *5. Judge Berzon persuasively explains that this specific condition indicates that some cause is required – just not the relatively high standard of probable cause. Id. at *6. The dissent appropriately assumes that the state sentencing judge acted deliberately, and meant the language that was actually used in the search condition. Id. at *5. 
  Judge Berzon argues that this King iteration is inconsistent with the Supreme Court’s Fourth Amendment “mode of analysis,” id. at *7, and seems directly contrary to the Supreme Court’s instruction in Samson that probationers have greater privacy interests than parolees. Id. at *8. 
  A petition for rehearing is underway: knock wood that the en banc court takes up King again, and brings the Ninth back on track with the Supreme Court and Samson.

How to Use: Preserve this issue: this latest King opinion will hopefully not be the last word on the issue. Meanwhile, keep reading the precise language in probation agreements. Judge Graber concedes that King does not hold that the Fourth Amendment permits suspicionless searches of probationers who have not accepted a suspicionless-search condition – maybe your language will be more clear than the (apparently clear) language in King. Id. at *4.
For Further Reading: We could speculate on how cops exploit and dodge probation search conditions to shake down “dirtbags” – but why put words in their mouths, when they describe their techniques such enthusiasm? See online forum here.

Image of Three Kings movie poster from,0,214,317_.jpg

Image of the Honorable Judge Marsha S. Berzon from

Steven Kalar, Federal Public Defender ND Cal FPD. Website at


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