Monday, May 27, 2013

Case o' The Week: The Ninth Gets Petty -- Stanfill El, Petty Offenses, and Jury Trials

  All over the country, interns are beginning their summer of service at federal courts, Defender offices, and various federal agencies.
  An opportune time to revisit Federal Intern Rule #1: keep the fistfights off of federal jurisdiction, please. United States v. Stanfill El, 2013 WL 18000046 (9th Cir. Apr. 30, 2013), decision available here.

Players: Decision by Judge Clifton, joined by Judges Tashima and Bea. Hard-fought appeal by D. Or. AFPD Thomas J. Hester.

Facts: Lawrence Stanfill El and Kyle Carmin were interns who worked next to each other at the Department of Veterans Affairs. Id. at *1. They fought, and Stanfill El punched Carmin several times. Id. Carmin was hospitalized. Id. Stanfill El was charged with federal assault under 18 U.S.C. § 113(a)(4). Id. This offense carries a six month maximum custodial term. Id. at *2. Stanfill El pleaded not guilty and demanded a jury trial: that demand was denied and he was tried before a judge. Id. at *1. Stanfill was found guilty, and the only “sentence” imposed was a restitution order for $3,468 .03 in medical bills. Id.

Issue(s): “The Sixth Amendment to the United States Constitution provides the right to a jury trial in all criminal prosecutions. But there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision. To determine whether an offense is petty, courts look to the maximum penalty that could result from a conviction. Courts presume that an offense is petty when it carries a maximum term of imprisonment of six months or less . . . Stanfill El argues that the potential for an order of restitution in a substantial amount is enough to overcome that presumption.” Id. at *2 (internal quotations and citations omitted).

Held:We have already rejected that argument. In Ballek, we held that an order requiring the defendant to pay monetary restitution did not qualify as additional punishment that would trigger the right to a jury trial under the Sixth Amendment, no matter how large the sum involved . . . . Stanfill El contends that Ballek is distinguishable because it involved a child support debt that had been previously adjudicated by a state court. Stanfill El's legal duty to pay restitution, he argues, hinged entirely on the fact-finder's determination of his guilt rather than a state-court adjudication. But the result we reached in Ballek did not depend upon the previous state-court judgment . . . . Accordingly, Stanfill El cannot rely on it to distinguish his case. Ballek controls, and the district court was correct when it relied on our holding in that case to reject Stanfill El’s Sixth Amendment argument.” Id. at *2 (internal quotations and citations omitted).

Of Note: AFPD Hester raises an interesting argument in Stanfill El. If the victim Carmin had just for a common law assault, Stanfill El would have been entitled to a jury trial under the Seventh Amendment. Id. at *3. Why doesn’t the Sixth Amendment provide for a jury trial when the same amount of money (in the form of restitution) is at stake? Judge Clifton undertakes some Founding Fathers analysis to explain why the Seventh doesn’t help here. Id. at *4 “Criminal restitution is not some newfangled effort to get around the Seventh Amendment,” id. (quotation and citation omitted) )(though it probably feels that way to Stanfill El).

How to Use: Federal Defender offices who handle petty offense dockets are familiar with the delicate “jury trial” dance fought in Stanfill El. On the one hand, it iss the rare case where the defense wants to give up a jury. On the other, the lower punishments required to knock out the jury trial right are attractive. In Stanfill El, Judge Clifton describes the analysis required to determine whether a petty offense defendant has the right to a trial by jury. Id. at *1. The question involves more than just jail time: a large fine or a long period of probation can trigger the right as well. Id.
Hon. Richard Kopf
For Further Reading: How should judges free-up Federal Public Defender resources, in light of the furloughs required by sequestration? Dismiss all illegal reentry charges. So opines District Judge Richard Kopf in a remarkable blog entry, reported here. 
  If you’ve been feeling battered and bruised in these Sixth Amendment / Sequestration battles, read Judge Kopf’s frank comments and take heart: we’re not alone in this fight.

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



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Sunday, May 19, 2013

Case o' The Week: Ninth in a Speculative Mood - Ramirez and Sua Sponte "Don't Speculate" Instructions

Speculation by a jury is a dangerous thing. It can lead to questioning the government’s case, and – if not kept in check – reasonable doubt. United States v. Ramirez, 2013 WL 1789529 (9th Cir. Apr. 29. 2013), decision available here.

Players: Decision by CJ Kozinski, joined by Judges McKeown and M. Smith. Hard-fought case by San Diego Ass’t Defender Devin Burstein.

Facts: Undercover agents used Bejaran as a go-between to buy meth from Ramirez. Id. at *1. Both men were arrested and charged: Bejaran flipped and cooperated. Id. Before trial, Bejaran was jumped by two inmates and hospitalized with permanent brain damage. Id. at *2. At Ramirez’s trial, the government chose not to call Bejaran: instead, it offered his statements using the undercover agent’s testimony and audio recordings. Id. at *1. Bejaran never testified, though the defense established he had been arrested and pled guilty. Id. Ramirez asked for a “missing witness” instruction, informing the jury it could conclude that Bejaran’s absence was because his testimony could have hurt the government. Id. The district court refused. Id. When the defense discussed Bejaran’s absence during closing, the court instructed the jury that it “should not speculate as to any reason why Bejaran was not called.” Ramirez was convicted. Id.

Issue(s): “When may a judge instruct jurors not to speculate?” Id. at *1.

Held: 1. Re: Missing Witness: “A missing witness instruction is appropriate if two requirements are met: (1) the party seeking the instruction must show that the witness is peculiarly within the power of the other party and (2) under the circumstances, an inference of unfavorable testimony against the non-moving party from an absent witness is a natural and reasonable one . . . .The district judge here didn't abuse his discretion by failing to give this instruction.” Id. at *1 (internal quotations, brackets, and citations omitted).  

  2. Re: “Don’t Speculate” Sua Sponte Instruction: A judge may not preclude the jury from drawing any inferences that it may legitimately draw. The sua sponte instruction, therefore, was error. By instructing the jurors to disregard any uncertainty about why the prosecution didn't call a witness—who might have been the key witness— the court improperly inserted itself into the jury room and interfered with the jury's role as a factfinder. This incident demonstrates why it's a good practice for the court to discuss the language of a proposed instruction with the parties before giving it. Had the court done so here, defense counsel may have pointed out the error and convinced the judge not to deliver the instruction, thus avoiding an issue on appeal.” Id. at *4.

Of Note: Ramirez sold Bejaran much meth. That alone, however, is not enough to prove a conspiracy to distribute. Id. at *5. “To prove conspiracy, the government had to show more than that Ramirez sold drugs to someone else knowing that the buyer would later sell to others. It had to show that Ramirez had an agreement with a buyer pursuant to which the buyer would further distribute the drugs.” Id. (internal quotations and citations omitted). Ramirez is a welcome reminder that conspiracy does have some limits (albeit few).

How to Use: The distribution charge in Ramirez was ultimately upheld, because of harmless error review. Id. at *4. Nonetheless, this is a useful case to stave off sua sponte instructions by DJ’s reacting to (usually favorable) defense developments. As the Chief warns, “This incident demonstrates why it’s a good practice for the court to discuss the language of a proposed instruction with the parties before giving it. Had the court done so here, defense counsel may have pointed out the error and convinced the judge not to deliver the instruction, thus avoiding an issue on appeal.” Id. at *4. 
  Moreover, the Ninth warns off the inclination to help “clarify” the government’s case: “[I]t is the government’s job, not the court’s, to make sure the jury doesn’t draw incorrect inferences. Doing so here would have complicated the prosecution's case somewhat, and perhaps that is why the government chose not to say anything about the reasons for Bejaran's absence. But that was the government’s choice to make. It was not the court’s function, after both sides had rested, to give an instruction that filled in the evidentiary gap the court believed the government had left in its case.” Id. at *3.
For Further Reading: Last week the Judicial Conference asked for $43 million in emergency funding for federal indigent defense. See article here 
 The letter of Judges Gibbons and Hogan is a must-read – lays out just how grim things are. See Judicial Conference letter here.

Image of Mark Twain and quote from

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


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Sunday, May 12, 2013

Case o' The Week: Ninth Hears Loud Hawk's Cry - Evidence Lost by Gov't and Adverse Inference Instructions

Kennedy is a critical swing vote, and his concurring opinions have a way of becoming the controlling law of the land.

  (Even back in ’79). United States v. Sivilla, 2013 WL 1876649 (9th Cir. May 7, 2013), decision available here.

Players: Decision by Judge Noonan, joined by Judges Pregerson and Paez.

Facts: Sivilla owned a business selling perfume in Tijuana, and came to the U.S. a few times a week to buy supplies. Id. at *1. Sivilla loaned his Jeep Cherokee to the boyfriend of his sister-in-law. Id. Days later, Sivilla was stopped when he crossed the border in the Jeep. $160,000 worth of drugs were found hidden within a hand-cut area of the engine manifold. Id. The case agent took poor-quality photos of the engine. Id. Sivilla was arrested; a month later, the boyfriend was shot dead. Id. Soon after the arrest defense counsel asked that evidence from the Jeep be preserved and filed two motions to preserve and inspect evidence. Id. The court issued oral and written orders to preserve the Jeep. Id. Despite these requests and orders, the Jeep was sold at auction and stripped for parts. Id. at *1. “The prosecutor promised to protect the evidence but failed to take any affirmative action to that end. The government attorney prosecuting the case participated in the events leading to the failure to preserve. In total, the quality of the government's conduct was poor.” Id. at *5. The defense complained if its expert could have examined the modified manifold, he would have been able to evaluate whether it was readily accessible without lifts – a key fact for the “drug mule” theory. Id. at *2. The court found the government hadn’t acted in bad faith, denied the motion to dismiss, and refused to give a defense jury instruction on the destruction of the evidence. Id.

Issue(s): On appeal, Sivilla argued that “the trial judge erred in requiring a showing of bad faith in order to give a remedial jury instruction.” Id. at *3.

Held: This case allows us to clarify what a criminal defendant must show in order to receive relief when the government destroys evidence before trial. We hold that while Supreme Court precedent demands that a showing of bad faith is required for dismissal, it is not required for a remedial jury instruction. We therefore . . .
(Now Justice, then Judge) Anthony Kennedy
reverse the denial of a remedial jury instruction. We remand for a new trial with a remedial jury instruction.” Id. at *1. 
   “Bad faith is the wrong legal standard for a remedial jury instruction. Sivilla correctly identifies the appropriate legal standard in . . . Loud Hawk. Loud Hawk is an en banc decision with several opinions. The rule governing sanctions for destruction of evidence is found in Judge Anthony Kennedy’s 6–5 concurrence. Judge Trask's opinion in Loud Hawk, which announced the judgment of the court, suggests a bad faith requirement for sanctions when the government destroys or loses evidence. . . . However, that section of Judge Trask's opinion was not joined by any other members of the en banc panel. We clarify today that Judge Kennedy's concurring opinion, joined by a majority of the en banc panel, clearly controls this issue.” Id. at *4.   

Of Note: In the welcome Sivilla decision, Judge Noonan carefully parses the’79 Loud Hawk opinion and helpfully clarifies the rule for an adverse inference jury instruction when evidence is lost by government negligence. 
  Loud Hawk is a historically important case involving the conviction of fugitives from “that sorry affair” of the siege of Wounded Knee. Loud Hawk, 628 F.2d at 1141. Loud Hawk involved a remarkable en banc panel, including two jurists who would become respected Chief Circuit Judges, and a future Supreme Court justice – the opinion is an interesting read in its own right.

How to Use: When does the defense get this adverse inference instruction? Judge Noonan lays out the relevant factors from Loud Hawk, applying the Sivilla facts to the test. Id. at *4. Start with that analysis when hunting for an adverse inference instruction for evidence lost by the government.
For Further Reading: Law student Kenneth Stern, became involved in the Loud Hawk defense in 1975. Mr. Stern worked on the case until he appeared as lead counsel before the Supreme Court in 1985. Stern tells the story of the case in Loud Hawk: The United States versus the American Indian Movement, summary available here.

Image of hawk from Image of Justice Anthony Kennedy from

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


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Friday, May 10, 2013

McCullough v. Graber, No. 11-16920 (9th Cir. May 10, 2013) (Burgess, D.J., with Farris and N.R. Smith, JJ.)

The Ninth Circuit dismissed as moot an appeal from an order denying a federal prisoner's § 2241 habeas petition challenging BOP's rejection of his application to the Second Chance Act's pilot program for elderly offenders, which no longer exists.

The petitioner contended that, although BOP discontinued the SCA's pilot program around the time the district court denied his habeas petition, his appeal was not moot because the BOP retained the discretion to place him in a halfway house as the end of his sentence approached (in March 2013). The court held that the appeal was moot because the petitioner did not request this kind of relief in his § 2241 petition and did not amend it to request that relief once the pilot program was discontinued.

In an alternative merits ruling, the court agreed with the Tenth Circuit's decision in Izzo v. Wiley, 620 F.3d 1257 (10th Cir. 2010), which held that BOP is not required to consider early release credits in connection with an application for the pilot program. (If the BOP had done so, the petitioner would have been eligible for early release about three years earlier than March 2013.)

The decision is here:

Thursday, May 09, 2013

US v. Mancuso, No. 12-30174 (5-1-13)(Bea with Clifton and Mahan).

As the opinion describes it: "Mancuso was a dentist who distributed a lot more than free toothbrushes to his friends and acquaintances in Billings, Montana." Indeed, his charges included cocaine, which lead to various federal charges of possession with intent to distribute, distribution, and maintaining a drug house. The jury convicted on most counts, but found the amount to be distributed as less than 500 grams. On appeal, the 9th affirmed the conviction for possession with distribution (count 1), but vacated the distribution count as being duplicitous; that is, joining two offenses into a single count. The 9th also vacated the count for running a drug house, because the court committed plain error in instructing the jury that there had to be a "significant purpose" in using the premises rather than the correct "primary or principal use" for a house. The instruction applies to a professional office (dentist) as well as a residence. On various other issues, such as statutes of limitations and sentencing, the 9th rejected the arguments. As for the forfeiture count, the court's failure to inquire whether either party wanted the jury to find a nexus between the property and the offense was harmless.
United States v. Sandoval-Orellana, No. 12-50095 (9th Cir. May 9, 2013) (Beistline, D.J., with Thomas and Hurwitz, JJ.) 

The Ninth Circuit affirmed a guilty-plea conviction and sentence for illegal reentry following deportation. The court held that the defendant's prior conviction under Cal. Penal Code § 289(a)(1) for sexual penetration by foreign object was an aggravated felony, such that the removal order against the defendant was valid. The court also held, on plain-error review, that the defendant's sentence of 57 months, at the lower end of the Guidelines range, was procedurally reasonable.

The defendant was apprehended when he presented an apparently valid green card at the San Ysidro, California, port of entry, and it was discovered that he had previously been removed from the United States. That removal order was entered in the face of the defendant's conviction for sexual penetration by foreign object under Cal. Penal Code § 289(a)(1). As permitted by 8 U.S.C. § 1326(d), the defendant moved to dismiss the indictment on the ground that the deportation order was invalid because § 289(a)(1) doesn't define an aggravated felony. The district court disagreed, and the Ninth Circuit affirmed.

The Ninth Circuit held that under the Taylor categorical approach, CPC § 289(a)(1) defines an aggravated felony. The court distinguished Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. 2006), which involved California's statutory-rape provision. The conduct covered by the statutory-rape provision encompasses some consensual conduct, and therefore doesn't present a substantial risk that force will be used in the commission of the offense. The same, categorically, was not true for sexual penetration by foreign object, despite the fact that some fanciful formulations of fact patterns that fit under CPC § 289(a)(1) might not involve forcible conduct.

On plain-error review, the court also rejected a challenge to the district judge's explanation of the 57-month sentence.

The decision is here: