Thursday, February 27, 2014

United States v. Yazzie, No. 12-10165 % US v. George, No. 12-10326  (2-27-14)(Ikuta with Farris and Fernandez)(Note:  Az FPD represented George).

The sixth amendment right to an open courtroom benefits the defendant.  There is also a first amendment right for openness. This right to a "public trial" is not absolute.  However, to close a courtroom, (1) the party seeking to close the courtroom must present an overriding interest that is likely to be prejudiced; (2) the closure must be no broader than necessary; (3) reasonable alternatives must be considered; and (4) adequate findings must be made.  In both of these cases, involving child victims of sexual abuse, the 9th affirmed the convictions, finding that the test set forth in Waller v. Georgia, 467 US 39 (1984) had been met.  The court had found the compelling need, limited the closure to when the children were testifying, explored alternatives, and sufficiently set forth the matters and balancing on the record.  The 9th also held that the requirements of 18 USC 3509(e) which permits closed courtrooms for child witnesses were also satisfied.  Lastly, the 9th held that the charging and convictions on discrete sexual acts under 18 USC 2241(c) did not violate double jeopardy.

Sunday, February 23, 2014

Case o' The Week: (En) Banc Robbery - Chandler and Conspiracy Offenses as ACCA Crimes of Violence

  Three concurring judges, all urging en banc review of the decision they felt forced to deliver because of binding (and dubious) Ninth precedent.
  A rare concurring opinion – and hopefully not the end for this decision of first impression.
United States v. Chandler, 2014 WL 644698 (9th Cir. Feb. 20, 2013), decision available here.

Players: Per curiam decision by Judges Bybee and Tashima and District Judge Wood.

Facts: Chandler plead open to a Section 922(g) charge. Id. at *1. He had three Nevada priors: second degree kidnapping, coercion, and conspiracy to commit robbery. Id. Over defense objection, the district court found that all three priors were “violent felonies” under the Armed Career Criminal Act (ACCA) and sentenced Chandler to 235 months imprisonment. Id.  

Issue(s): “We have not previously considered whether conspiracy to commit robbery is a violent felony.” Id. at *3. [ ] [W]e consider whether conspiracy to commit robbery under Nevada law is a ‘violent felony’ as that term is defined in § 924(e)(2)(B)(ii).” Id.

Held: “A Nevada conviction for robbery is a violent felony because it creates a serious risk of harm that is comparable to the risk posed by burglary [an enumerated offense in the ACCA definition of ‘crime of violence.’] And because after [the Ninth Circuit’s] decision in Mendez, the § 924(e) analysis of a prior conspiracy conviction is governedt by the substantive offense that was the object of the conspiracy, . . . conspiracy to commit robbery, pursuant to Nev. Rev. Stat. §§ 199.480, 200.238, is also a ‘violent felony’ under the ACCA’s residual clause.” Id. at *6 (internal quotations and citation omitted).

Of Note: The Ninth also decides, as a question of first impression, that the Nevada offense of second degree kidnapping is categorically “crime of violence” that triggers ACCA exposure. Id. at *8.

How to Use: The interesting aspect of this decision is not the opinion, but Judge Bybee’s concurrence – joined by Judge Tashima and District Judge Wood. Id. at *8. Judge Bybee questions the on-going validity of the Ninth’s 1993 decision in Mendez. He points out that the old Mendez approach proceeds from a faulty premise: it treats the elements of conspiracy the same as the elements of the underlying crime. Id. at *9. Based on that bad premise, Mendez equates conspiracy to commit robbery as an offense as dangerous as robbery – even though conspiracy “rarely, if ever, presents a serious potential risk of injury to another.” Id
  This old approach doesn’t square with the Supreme Court’s ACCA analysis in James, which treated an inchoate offense – attempted burglary – as different than the substantive offense of burglary. Id. As Judge Bybee observes, “until we are willing to reevaluate Mendez, offenders like Chandler will be categorized as ‘career offenders’ based on robberies which they discussed but not actually commit.” Id. at *10. 
  While he acknowledges a circuit split on whether conspiracy can be a violent felony, Judge Bybee and his colleagues end a great concurrence by urging en banc consideration of the questionable Mendez decision. Id. at *13.
   Preserve objections to the use of conspiracy priors as ACCA crimes of violence: with luck, an en banc court will be revising this issue soon.
For Further Reading: Mandatory minimums increase disparity, by vesting too much unilateral power in the prosecutor. So argues a Chicago Law instructor, in a study of data from thousands of federal sentencings. See Crystal Yang, Have Inter-Judge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker here 
 For a New Yorker piece discussing the study, see here

“En banc” image from

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


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Friday, February 21, 2014

United States v.  Chandler, No. 12-10331 (2-20-14)(Per curiam with Tashima and Wood; concurrence by Bybee.) 

The 9th affirms an ACCA enhanced sentencing.  The prior Nevada felonies were robbery, conspiracy to rob, and kidnapping.  The conspiracy analysis under United States v. Mendez, 992 F.2d 1488 (9th Cir. 1992), looks at the object of the conspiracy for COV determination.  Concurring, Bybee, joined by the others, questions the validity of Mendez.  The categorical approach in 1992 is different than now, and it is illogical to hold the elements to be the same in the two offenses.  There is a circuit split on this issue.  Thus, Bybee calls for en banc consideration.

United States v. Garcia-Santana, No. 12-10471 (2-20-14)(Berzon with Alarcon and Zouhary, D.J.) 

This is a good immigration/1326 decision.  The 9th affirms the dismissal of a 1326 indictment because the prior removal order was inadequate.  The defendant was denied her right to seek discretionary review.  In so ruling, the 9th also holds that Nevada's conspiracy statute is broader than the federal statute.  The state does not require an overt act.  The 9th finds that the generic definition of "conspiracy" under 8 USC 1101 includes proof of an overt act in furtherance of the conspiracy.

Congrats to AFPD Lauren Gorman and R&W Dan Maloney of the Nevada FPD office (Reno).

Thursday, February 20, 2014

Sentencing Innocence And Closed Files

In several recent cases, the Supreme Court has construed criminal statutes in a manner that establishes that convicted clients, whose files are closed and who are serving very long federal sentences, are actually innocent of the sentences they are serving. For example, after Begay and Descamps, there are defendants convicted under the Armed Career Criminal Act who are serving mandatory minimum fifteen years even though, as we now know, the prior convictions are no longer valid predicates, which would leave the maximum sentence for being a felon in possession of a firearm at ten years. Or how about the Burrage case, where the Supreme Court held that prisoners serving a mandatory twenty year minimum for a death resulting from drug dealing based on a substantial connection to the death are innocent unless the government established the drug dealing was the but for cause of death. We hope we can obtain relief for clients based on the intervening Supreme Court cases on direct appeal or a first motion under 28 U.S.C. § 2255. For those situations where there is not such a clear procedural path, our office has this linked article addressing recent useful precedents entitled Helping Justice Trump Finality For Defendants With Sentencing Innocence Claims After Begay, Descamps, and Burrage.

The article has four parts:

Part I: How Loumard Harris Walked Out Of FCI Sheridan Six Years Short Of His 2020 Projected Release Date And Three Years Over His Statutory Maximum.

Part II: The Eleventh Circuit Threads The § 2255(e) Needle, With Helpful Analysis From Concurring Judge Martin.

Part III: Marrero -- Not An Insurmountable Obstacle To Justice In A Righteous Case.

Part IV: A Few Thoughts On The Nuts And Bolts

The nuts and bolts section includes seeking appointment of counsel, assessing the range of available remedies, avoiding irreparable harm, reducing supervised release, and taking a proactive role regarding closed files and prison inquiries.

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

Sunday, February 16, 2014

Case o' The Week: A Sour Limewire Holding - Vallejos and Distribution enhancements for Limewire

Use Limewire. Go to Jail. Longer. 

United States v. Vallejos, 2014 WL 503537 (9th Cir. Feb. 10, 2013), decision available here.

Players:  Decision by Judge Gould, joined by Judges Hawkins and Paez. Hard-fought appeal by AFPD Ann H. McGlenon, ED Cal.

Facts: An investigation and search revealed child porn on Vallejos’ computer. Id. at *1. Vallejos admitted to the police that he was responsible for the porn on the computer, and voluntarily gave the police an audio and video-recorded statements. Id. Parts of his confession were omitted at trial; over his objection, the rest was not permitted to be introduced. Id. at *2. He was convicted and sentenced to 188 months for receipt of child porn. Id.

Issue(s): “Vallejos appeals the district court’s decision to deny his requests that . . .  his unedited confession by shown to the jury under the Rule of Completeness, Fed. R. Evid. 106 . . . .” Id. at *1. “Vallejos contends that the redacted version of his confession misled the jury because it left out parts concerning, among other things, his prior prison sentence, his drug history, and his church.” Id. at *2.

Held: “This argument misunderstand’s the Rule’s purpose. The district court properly concluded that the Rule of Completeness is not so broad as to required the admission of all redacted portions of a statement, without regard to the content. . . .  The district court did not abuse its discretion when it determined that – while this evidence might be relevant to ‘sympathy’ and sentencing – the redacted statement was not misleading and therefore that the Rule of Completeness did not require admission of the full statement into evidence.” Id. at *2.

Of Note: The Vallejos hold on the “Rule of Completeness” is frustrating, but it is not the most dangerous holding in the opinion. In a later discussion rejecting an Apprendi challenge, Judge Gould holds – for the first time in the Ninth Circuit – that the knowing use of a file-sharing program (like Limewire) to download child porn involves both the receipt and distribution of porn. Id. at *5. This triggers another distribution enhancement – and it doesn’t matter whether the defendant knowingly, or unknowingly, allowed others access to those files. Id. at *5. Even worse, “it matters not, for purposes of the enhancement, whether someone else actually downloads a file from the defendant’s computer.” Id. It is a troubling holding of first impression in the Ninth, and piles guideline exposure even higher for child porn – an offense where most agree the guidelines are already out of whack.

How to Use: Will ignorance defeat this enhancement? Still undecided, in the Ninth. Id. at *5 & n. 5. Here, Vallejos did not present evidence “that he had so little knowledge of how LimeWire worked as would unmistakingly negate his presumed intent to distribute the child pornography files on his computer to all LimeWire users.” Id. If your client neither “installed the file-sharing program on the computer nor knew how to operate it,” id., there still might be a window of light for an “ignorance” defense to this distribution enhancement.
For Further Reading: Seventy percent of district judges believe that the child porn guidelines for possession are too high, 69% think the range is too high for receipt. Tack on another two offense levels for “distribution” whenever LimeWire raises its ugly head and the guideline has drifted even further from any empirical mooring. For a great summary of federal courts ‘rejection of Congressional meddling in the empirical business of the Commission, see “A Policy of Variance: Downward Departures from Child Pornography Sentencing Guidelines available here. 

Limewire image from

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


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