Frost v. Von Boening, No. 11-35114 (4-29-14) (en banc) (Thomas for a 6-judge majority; Tallman for a 5-judge dissent). 

In a habeas case, the 9th sitting en banc reversed a three-judge panel decision that affirmed the denial of relief to a Washington state prisoner.  (Tallman wrote the panel opinion.)  The en banc court found structural error when the state trial court forced petitioner in closing argument to argue either duress or reasonable doubt to a charge but not both as alternative theories.  The state court's reasoning was that duress was an affirmative defense, requiring admission of all elements, so that if petitioner argued that the State failed to prove he was an accomplice to a bank robbery, he did not admit the elements.  Petitioner then argued duress solely, and on rebuttal, the prosecutor argued he proved all elements.  The 9th held that this was error under both Herring v. New York, 422 U.S. 853 (1975), and In re Winship, 397 U.S. 358 (1970).  The 9th was emphatic how the defense was compromised, how the state court erred, how the error was unreasonable, and that AEDPA did not control as Herring controlled.  Tallman, writing a dissent joined by four others, would find that AEDPA deference controls because the Supreme Court had never found this kind of restriction on the scope of closing argument to be structural error.

US v. Ruiz-Lopez, No. 13-10093 (4-25-14) (Gould with McKeown and Quist, D.J.). 

The 9th affirmed a conviction for illegal reentry after deportation against a sufficiency of evidence appeal.    The government introduced into evidence a deportation order.  By itself, a deportation order isn't sufficient.  However, the government also introduced contents of the A file, including an I-213 form and other documents indicating a prior removal, and then an arrest after scaling a fence.  If there is evidence in front of the jury, it can be considered.  There was here.

US v. Thum, No. 13-50176 (4-25-14) (M. Smith with Thomas and Christen). 

A rare supervised-release violation win.  The defendant, with a conviction for alien smuggling, faced revocation because he was arrested for walking an illegal alien from a Jack in the Box close to the border to a waiting van.  The violations alleged were commission of a crime -- inducing an illegal alien to reside in the US or aiding and abetting such an act, in violation of 8 USC 1324(a)(1)(A)(iv) and (v)(II).  The 9th found insufficient evidence, even after the defendant had admitted to the agents that he was told by a smuggler he knew to meet the illegal alien and escort him to a van.  The problem for the government was that the statute punishes two discrete acts -- residing and transporting.  The defendant could have been charged with attempted transportation, but there was no evidence that merely walking him to a van was encouraging residence.  The 9th rejected the government's argument that getting him away from the POE and agents was in effect helping him to reside. 

Congrats to Devin Burstein of the Federal Defenders of San Diego.

US v. Ramirez-Estrada, No. 12-50340 (4-25-14) (Clifton with Schroeder and Tunheim, D.J.). 

A Doyle error results in vacation and remand of the attempted reentry and false claim of US citizenship charges.  Doyle error involves the use of post-Miranda silence to impeach a testifying defendant.  The defendant here had been previously convicted, and the court had instructed BOP to attend to his jaw injury.  BOP did nothing and the defendant was deported.  The defendant then either attempted to reenter falsely claiming US citizenship or approached the POE and asked that he be let back in so BOP could treat his jaw.  The gov’t claimed the former.  However, both the government and defendant agree that he was given his Miranda warnings, and he invoked.  He was then asked booking questions, which were permissible; some of which concerned his health, and the agent provided examples such as a heart condition or diabetes.  At trial, they defendant testified about his jaw and the circumstances of his return to seek treatment promised.  The government contends that his prior booking answers were direct contradictions of his trial testimony, and he could be impeached.  The 9th disagreed, finding that the answers were not direct contradictions, but ambiguous (he was not asked about his jaw, and given examples of life threatening diseases).  The government's impeachment therefore was in effect comments on his silence (what he did not say).  This was error and it was prejudicial.

Congrats to Caitlin Howard of the Federal Defenders of San Diego.

Hedlund v. Ryan, No. 09-99019 (4-24-14) (N. Smith and Bea; partial dissent by Wardlaw).  (Note:  This is an AZ FPD case). 

The 9th affirms denial of a capital habeas.  This case is decided in the shadows of AEDPA deference.  The 9th here finds the state court reasonable in affirming use of a leg restraint based on hearsay reports about a supposed plan to escape.  It was also reasonable for the state to affirm use of dual jurors.  More disturbing is the finding there is no IAC.  The court had rejected the first plea, but said that the defendant could then come back the next day with another plea taking into account other offenses.  There were grounds to have another plea, and the defendant was willing.  The plea had to be the next day.  The next day, however, counsel did not return but instead filed a motion for recusal because of judicial bias.  He argued that the court was going to reject it, and that he wanted another judge.  He lost, and trial went.  The 9th affirms under AEDPA.  Finally, there was no IAC regarding mitigation under AEDPA.  Wardlaw dissents, arguing that the plea tactics were IAC and also mitigation under Eddings.  (This case was tried along with McKinney v. Ryan, which is pending en banc review.)

US v. Gomez, No. 11-30262 (4-24-14) (Paez with Fisher and Gould). 

Revising an opinion involving an issue of first impression, the 9th finds that a four year age difference is an element in generic statutory rape.  The 9th withdraws a prior opinion (10-7-13) in this 1326 conviction and sentencing appeal.  The 9th finds error in the underlying removal proceeding because the defendant was denied an opportunity to appeal the order.  His waiver of the appeal was not knowing.  The immigration court failed to assess whether the defendant actually knew his rights, and what would happen.  However, the error was harmless because the prior offense was an aggravated felony and would not have afforded him relief.  With respect to sentencing, the panel held that Ariz. Rev. Stat. § 13-1405 was not a crime of violence (COV) under U.S.S.G. § 2L1.2(b)(1)(A)(ii).  The Arizona statute makes it an offense to have sex with a person "under fifteen" but did not exempt those within four years in age.  This means that the statute is not a categorical COV because it is missing that element.  The 9th then discusses generic statutory rape (noted above), with an extensive survey of states, federal offenses and the Model Penal Code.  The four year span is required.  The case is vacated and remanded for resentencing.

Congrats to Rebecca Pennell of the Federal Defenders of the Eastern District of Washington (Yakima).

Case o' The Week: Loyal to Doyle - Ramirez-Estrada and Post-Miranda Silence

Silence is golden.

Hon. Judge Richard Clifton

Not commenting on that silence -- even better.

United States v. Ramirez-Estrada, 2014 WL 1646931 (9th Cir. Apr. 25, 2014), decision available here.

Players: Decision by Judge Clifton, joined by Judge Schroeder and visiting D.J. Tunheim. Nice win for Caitlin Howard, Ass’t Def., Federal Defenders of San Diego, Inc.

Facts: Ramirez-Estrada, an undocumented alien, had been deported several times. Id. at *1. While incarcerated in ’05, he sustained a serious jaw injury – a district judge had order treatment, but it never happened and Ramirez-Estrada was deported. Id. In 2011, he tried to enter the U.S. through San Ysidro, allegedly saying he had been born in Vegas but lost his papers. Id. Ramirez-Estrada, however, testified he only attempted to enter the US to get his painful jaw injury treated as had been ordered by a judge, and testified that he had told that to border agents. Id. at *2. To impeach the defendant, the government offered the testimony of the agent who had booked him. Id. That agent said that (after Ramirez-Estrada invoked Miranda) he reported no health problems like “heart condition, diabetes, or anything like that.” Id. at *2-*3. The jury convicted Ramirez-Estrada of attempted illegal entry and making a false claim to U.S. citizenship. Id. at *3.

Issue(s): “This case concerns the scope of a criminal defendant's constitutional rights under Doyle v. Ohio, 426 U.S. 610 (1976), which prevents impeachment impeachment of a defendant with his post-Miranda silence.” Id. at *1.

Held: “Nothing Ramirez–Estrada said in those [post-Miranda] statements served to impeach his testimony. Rather, it is what he failed to say that was relevant to undermine his credibility. We thus conclude that the use of Ramirez–Estrada's post-invocation silence to impeach him violated his rights under Doyle. Because this error was not harmless beyond a reasonable doubt, we reverse.” Id. at *1. “Although neither the Supreme Court nor this court has previously faced the particular situation presented here, we conclude that Doyle bars admission of Ramirez–Estrada's statements to Officer Nicasio. It is clear and undisputed that Ramirez–Estrada invoked his Miranda rights by asking for a lawyer. The difficult question is the second one: whether his statements in response to Officer Nicasio's routine booking questions were directly inconsistent with his trial testimony. We conclude that they were not and that it was, instead, his silence that was used against him.” Id. at *4.

Of Note: This is a careful, nuanced decision that relies heavily on the precise words used during the booking process. Id. at *5. How can Judge Clifton quote this exchange verbatim? “A recording of the interview, from which we can draw precise quotations, is part of the record.” Id. at *5 & n.3. 

  Would this constitutional violation have been discovered, if the record was merely a swearing match between the agents and the defendant? 

  Unlikely.  

  Ramirez-Estrada illustrates the travesty of federal agents refusing to tape interviews – the only reason not to record is to hide violations like the Doyle problem in this case.

How to Use: Can you have a Doyle violation (an improper use of silence) without a Miranda violation? Yep. “[A] Doyle violation occurs where the prosecution uses defendant’s post-invocation silence to impeach him, regardless of whether the police complied with Miranda.” Id. at *4. Judge Clifton offers a helpful discussion of the subtle nuances of Doyle caselaw, and of the Ninth’s lead decision in Caruto. Read Ramirez-Estrada for a good explanation of how omissions, impeachment, and silence interaction in the Doyle analysis.

                                               

For Further Reading: D.O.J.’s new clemency initiative offers hope to thousands of inmates imprisoned under federal drug laws. See press release here.  For a good general description of this program, see the Washington Post article here. 

  More details, and a discussion of the most obvious candidates for clemency, can be found here .

Image of the Hon. Richard Clifton from https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh_Y_MsZ-DGCp7UcVJMLfSZ6BDACikIaO8ujDrwh8Xywt8PhJ58ow6i_4h3rpArMexjZoLOgZMvq9QRmM0OYOdhHLZltGQCiBknp0xvdEqrSX-yt0A1VN0AucXX6Sns0OuI5yyDQw/s1600/IMG_9546.JPG

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

Ninth Not Crazy for Limitations on Defense Shrink: Christian and Defense Experts

Hon. Raymond C. Fisher

  A shrink finds a defendant suffers from psychosis, has probable delusions, and a borderline personality disorder, but the psych can’t testify as a defense expert on diminished capacity.

  Crazy? The Ninth thinks so, too. United States v. Christian, 2014 WL 1491887 (9th Cir. Apr. 17, 2014), decision available here.

Players: Decision by Judge Fisher, joined by Judge Berzon. (Good) concurring and dissenting decision by Judge Alarcón. Id. at *10-*11.

Facts: When Christian’s car was repossessed he was displeased with the inability of the police department to help. Id. at *2. So displeased, in fact, that he emailed threats to a police officer and to a prosecutor. Id. He was tried before a jury for emailing threats, in violation of 18 USC § 875(c). Id. at *3. 

  Before this federal trial (near the time the emails were sent), Christian had been evaluated by a psychologist for competency in unrelated state proceedings. Id. That psych considered Christian incompetent, diagnosed him with a psychosis, and recommended that he be sent to a facility for therapeutic care and treatment. Id. 

  Federal defense counsel noticed this psych as an expert to testify on diminished capacity. Id. The district court refused to allow this testimony, because of the different legal standards for competency and dim cap. Id. 

  With no psych evidence, a dim cap instruction was denied, and Christian was convicted. Id. at *2, *3.

Issue(s): Christian “argues that the district court should have allowed his expert, a psychologist who had earlier examined him for competency to stand trial, to testify regarding his diminished capacity defense and that he was entitled to a jury instruction on diminished capacity even without such expert testimony.” Id. at *1.

Held: “[T]he district court abused its discretion by excluding Christian’s expert solely because he examined Christian for competency rather than for diminished capacity. Instead of focusing exclusively on the different legal standards governing the conclusions the expert was asked to draw, the district court should have evaluated whether the substance of the expert’s testimony would have helped the jury decide whether Christian could form the specific intent to threaten the recipients of his emails . . .” “[T]he court should not have excluded such testimony without conducting a voir dire or otherwise giving the expert an opportunity to explain how he could provide meaningful and relevant testimony on diminished capacity from the competency evaluation that he had conducted . . . We . . . vacate Christian’s conviction and remand. . .” Id. at *2.

Of Note: Judge Fisher provides a thoughtful analysis of the true focus of the inquiry in this case – the relevance of the omitted testimony. Id. at *5-*7. Christian is one of the best opinions on defense expert witnesses to come out of the Ninth: it is well worth a close read. In addition to the valuable core holding, Judge Fisher sets forth a great new rule for the Ninth: “We . . .  hold that the rule requiring a new trial when a district court erroneously admits prejudicial expert testimony in a civil trial, . . . also applies to the erroneous exclusion of expert testimony from a criminal trial.” Id. at *2. (internal citation and quotations omitted). There is, admittedly, a caveat or two to this new rule. See id. at *7 & n.3. Nonetheless, very welcome new law.

How to Use: There are few things more aggravating than a court who won’t allow a clean defense offer of proof. That happened here: “the district court several times interrupted defense counsel’s attempt to make a more complete offer of proof.” Id. at *4. 

  Fortunately, the Ninth dislikes this practice, too. In Christian, the interruptions helped the defense dodge the tough plain error standard on appeal. Id. This passage is a handy little trial tool to shoehorn in a defense offer of proof.

                                               

For Further Reading: What really determines a federal sentence? The offense? The judge? Or the largely unfettered power of AUSAs? Prosecutors “have immense discretion to decide which charges to prosecute and what charging concession to offer in the course of plea bargaining, yet a paucity of empirical research exists on these consequential decisions.” Assoc. Prof. Brian Johnson, “The Missing Link: Examining Prosecutorial Decision Making Across Federal Courts.” 

   This interesting new 150+ page empirical report, relying on data from the DOJ, is now available here. 

Image of the Hon. Raymond Fisher from http://www.swlaw.edu/swlawonline/winter04/bigchill.htm

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

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