Sunday, June 29, 2014

Case o' The Week: Four Days Too Slow, for I/A Show - Torres Pimental and McNabb-Mallory Rule

Hon. Judge Harry Pregerson

   How long does it take the feds to drive a defendant seventeen miles, to appear before a MJ and get appointed counsel?
  Four days! (about .35 miles per hour).
United States v. Torres Pimental, 2014 WL 2855009 (9th Cir. June 24, 2014), decision available here.

Players: Decision by Judge Pregerson, joined by Judges Fisher and DJ Daniel. Nice win by AFD’s Zandra Lopez and Devin Burstein, Fed. Def. of San Diego, Inc.

Facts: Luis Torres Pimental was a passenger in a car driven by a woman, Canales, that was stopped at the border on Friday Jan. 14, 2011. Id. at *1. A search revealed over 150 pounds of marijuana hidden in the car. Id. At 11:54 a.m., Torres Pimental declined to speak to agents, and asked for an attorney. Id. at *2. Less than hour later, Canales was interviewed, confessed, and implicated Torres Pimental. Id. at *2. At 5:00 p.m., an agent signed a complaint against both. Id. Earlier that day, there has been a 2:00 p.m. magistrate court in San Diego – just twenty-two minutes away from where Torres Pimental has been held. Id. Nearly 48 hours after arrest, Torres Pimental was finally driven up to the federal detention center. Id. at *3. On the drive, a conversation with the agent ultimately produced a confession. Id. Four days after arrest – on Tuesday Jan. 18 – Torres Pimental finally made an initial appearance and counsel was appointed. Id. at *4. His motion to suppress was denied, he entered a conditional plea (available in SD Cal, a rare beast indeed in the ND Cal USAO), and appealed.

Issue(s): “Torres Pimental argues that his incriminating statements must be suppressed because of an unnecessary or unreasonable delay under Federal Rule of Criminal Procedure 5(a) and the McNabb-Mallory rule.” Id. at *4.

Held:We agree.” Id. “Although we understand why law enforcement sought to strengthen its case against Torres Pimental further, the delay in presenting Torres Pimental to a magistrate judge in order to interrogate him and Canales was unreasonable.” Id. at *8 (emphasis in original). “[T] he district court clearly erred when it determined that the delay in presentment was reasonable and necessary and erred when it declined to suppress the incriminating statements that Torres Pimental made to [the] Agent . . . on Sunday morning, about forty eight hours after his Friday morning arrest, and before he was presented to a magistrate judge on Tuesday. . . We reverse the denial of Torres Pimental’s suppression motion [and] vacate his conviction . . . .” Id. at *8.

Of Note: In Torres Pimental Judge Pregerson carefully lays out the McNabb-Mallory rule: a line of authority (and a statute) that governs how quickly a defendant must be presented to a magistrate after arrest. Id. at *5-*6. He’s unimpressed with the government’s claim that the delay was necessary because of the three-day weekend between arrest and presentment. Id. at *7. On the Friday before that long weekend, it was only 22 minutes to the court, there were no shortage of agents, and a magistrate judge was on the bench. Id. at *6. A welcome decision to bear in mind, when first meeting a client on the Tuesday after a long holiday weekend.

How to Use: The agents couldn’t get Torres Pimental to a magistrate, the government argued, because they hadn’t finished leaning on the driver, Canales. Id. at *7. “[N]ot a valid reason to delay . . .”, Judge Pregerson writes. Id. at *7. The agents caught Torres Pimental with 150 pounds of marijuana in the car – including three packages in his passenger seat. Id. at *8. Feds can’t stall presentment (and counsel appointments) to lean on our clients for confessions, when there’s already enough evidence to file a complaint. Id. at *7-*8. Torres Pimental is a very good McNabb-Mallory decision – take a look when there’s a fishy presentment delay.

For Further Reading: -2 OL for drug offenses: good. 
  Full retroactivity? Better.  
  On July 18th, the Sentencing Commission will vote on whether to make their enlightened amendment to the drug guidelines retroactive. For an accessible account of the recent testimony, see the summary here

Sentencing Commission logo from 

Steven Kalar, Federal Public Defender Northern District of California Website at


Labels: , , ,

Thursday, June 26, 2014

US v. Shouse, No. 13-30134 (McKeown with Goodwin and Watford).

The Ninth Circuit upheld an aggregate 50-year sentence imposed on a registered sex offender convicted of producing child pornography as reasonable under Booker.  First, the court held that the sentencing judge properly based the Guidelines computation on the enhancement under U.S.S.G. § 2G2.1(b)(4), because it was "undisputed" that the images depicted sadistic, masochistic, or otherwise violent imagery.  Second, the sentencing judge properly exercised his discretion under the Guidelines to make the sentence consecutive to an undischarged state sentence, because the judge's explanation indicated some consideration of the § 3553(a) factors.  See U.S.S.G. § 5C.1.3.  Finally, the sentence was reasonable under Booker because the record made clear that the sentencing judge had considered the reasons the defendant offered for a lower sentence.

US v. Torres Pimental, no. 12-50038 (Pregerson with Fisher and Daniel, Sr. D.J.).
The McNabb-Mallory rule requires a defendant to be brought before a judicial officer within 48 hours unless certain exceptions or hardships are found.  The government here arrested the defendant on Friday, and failed to bring him to a magistrate until the following Tuesday.  The magistrate was 17 miles, a mere 22 minutes away, and was available for an appearance that afternoon. The defendant, who invoked on Friday, later confessed on Sunday, while being driven.  The 9th suppressed the statement, vacated the conviction and remanded.  The 9th did not buy the excuses of a holiday weekend, completing investigation (the discovery of the marijuana in the car and confession of the codefendant ended that), or availability of space.

Congrats to Devin Burstein and Zandra Lopez of the Federal Defenders of San Diego for the win.

Sunday, June 22, 2014

Case o' The Week: Gov't Hoisted by A.G.'s Petard - Aguilera-Rios and Categorical Analysis

  If the government makes a legal mistake, should a defendant be criminally punished for that error?
  Not in the Ninth. United States v. Aguilera-Rios, 2014 WL 2723766, *5 (9th Cir. June 17, 2014), decision available here.

Players: Great decision by Judge Berzon, joined by Judge Pregerson and visiting 10th Circuit Judge Murphy. Very nice win for AFD Kara Hartlzer, Federal Defenders of San Diego.

Facts: Aguilera-Rios was an LPR. Id. at *1. He was convicted of Cal. Penal Code § 12021(c)(1), “unlawful firearms activity,” and was brought before an Immigration Judge, and was removed. Id. Considering the firearm conviction an aggravated firearms felony offense, the IJ did not advice Aguilera-Rios of the opportunity to seek voluntary departure. Id. Aguilera-Rios was later caught at the border and charged with attempted entry after deportation. Id. He moved to dismiss the indictment under 8 USC § 1326(d), arguing he had not been properly advised of the voluntary departure option. Id. Between that IJ hearing, and this § 1326(d) motion, the Supreme Court had decided Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). In Moncrieffe, the Attorney General had used the specter of the absence of an “antique firearms exception” in a state gun statute as an argument against a categorical analysis of a marijuana statute. The A.G. lost in Moncrieffe. Aguilera-Rios’s motion was denied.

Issue(s): “[Aguilera-Rios] contends that his prior removal order was invalid because his conviction under California Penal Code § 1202(c)(1) was not a categorical match for the federal firearms aggravated felony.” Id. at *1. “Aguilera’s central contention is that the generic ‘federal definition of a ‘firearm’ specifically exempts antique firearms, while the California definition of firearm does not. Thus, a person may be convicted under California Penal Code § 12021 for conduct that does not fall within the firearm grounds for removal.” Id. at *3.

Held: “We agree.” Id. at *1. “A state statute that allows conviction for offenses using antique firearms would therefore not equate to the § 1227(a)(2)(C) aggravated felony offense.” Id. at *8.

Of Note: This is obviously an important holding for Section 1326 cases, where the client has a California § 12021 prior. Judge Berzon’s opinion, however, is packed with other gems as well. One valuable holding concerns retroactive application. Id. at *3-*4. In a careful analysis, Judge Berzon explains why the Supreme Court’s decision in Moncrieffe (and the downstream impact of the A.G.’s argument) does apply retroactively to the IJ’s decision to remove Aguilera-Rios. To refuse to do so, in this context would mean that “[s]uch an individual is in effect being criminally punished for the government’s legal mistake.” Id. at *5.  

How to Use: This motion to dismiss the indictment before trial falls under Fed. R. Crim. Proc. 12(b)(3)(B). Id. at *2. Because Aguilera-Rios didn’t argue Moncrieffe in his 12(b) motion, the government argued it was waived on appeal. Id. The Ninth “decline[d] to find such a waiver here.” Id. This 12(b) / waiver holding appears to be a decision of first impression in the Ninth – add this to your appellate practice arsenal, when the government alleges that a legal argument in support of a motion to dismiss wasn’t made in the district court. Be forewarned, though: Judge Berzon’s holding is fact specific, and appellate counsel here showed great diligence in submitting a substitute brief soon after Moncrieffe was decided. Id. at *3.
For Further Reading: Moncrieffe = strict categorical analysis = good for defense. Judge Berzon rejects the government’s attempt to squirrel around this analysis by labelling aspects of a statute, “definitional elements.” Id. at *8. Good stuff -- this concept of strict reading has broader application for other categorical analysis fights. For a thoughtful (albeit, pre-Descamps) discussion of the Moncrieffe decision, see article here.

Image of Judge Berzon from

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


Labels: , , , ,

Saturday, June 14, 2014

Case o' The Week: The First and the Ninth - Osinger, First Amendment, and Internet Stalking

   The First Amendment protects offensive and, at times, reprehensible speech.
  (But, as Judge Rawlinson explains, not all offensive and reprehensible speech is protected.)
United States v. Osinger, 2014 WL 2498131 (9th Cir. June 4, 2014), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges Graber and Watford. Concurrence by Judge Watford.

Facts: Christopher Osinger was indicted for “engaging in a course of harassing conduct,” in violation of 18 USC §§ 2261A(2)(A) and 2261(b)(5). Id. at *1. Before trial he unsuccessfully moved to dismiss the indictment, arguing that Section 2261A(2)(A) was unconstitutionally vague. Id. Trial testimony revealed that Osinger and the female victim, V.B., had a romantic relationship that ended badly. Id. Osinger texted V.B., showed up at her house un-invited in the early morning, and ultimately created a Facebook page in a name close to V.B.’s, with nude photographs of her and offensive text. Id. at *1-*2. Osinger also sent disturbing emails to V.B.’s co-workers. Id. He was convicted and sentenced to 46 months. Id. at *3.

Issue(s): “Osinger . . . contends that 18 USC § 2261A(2)(A) was unconstitutionally applied to his protected speech.” Id. at *5.

Held: “Any expressive aspects of Osinger’s speech were not protected under the First Amendment because they were ‘integral to criminal conduct’ in intentionally harassing, intimidating, or causing substantial emotional distress to V.B. . . . . In the limited context of 18 USC § 2261A, Osinger’s speech is not afforded First Amendment protection for the additional reason that it involved sexually explicit publications concerning a private individual.” Id. at *7.

Of Note: Hidden amongst the big constitutional fight is a troubling holding of broad application: a denial of acceptance of responsibility. Id. at *7. Osinger was denied two-offense levels off for acceptance, even though he argued he went to trial only to preserve his constitutional challenge to the statute. Id. at *7. In upholding that denial, the Court relies heavily on defense counsel’s characterization of the evidence at trial. Id. at *7. The Court also emphasizes Osinger’s lack of contriteness, quoting equivocal acceptance of responsibility from his counsel (it appears). Id. at *8 (“Here, Mr. Osinger said and did things out of anger.”) 
   If you want to navigate those narrow straits of preserving an appellate issue through trial, while claiming acceptance, read Osinger. It is a sobering reminder that counsel’s actions can jeopardize acceptance eligibility.

How to Use: Concurring, Judge Watford would also uphold the statute against the as-applied challenge. Id. at *9 (Watford, J., concurring). His First Amendment analysis is nuanced, however, and emphasizes that this case involved both speech and unprotected non-speech conduct. Id. at *12. It is a thoughtful discussion, carefully tailored to the facts before the Court. 
  Judge Watford ends with an observation that may be helpful in future challenges: “It’s unclear whether this [more rigorous First Amendment] standard, [that applies when a defendant is doing nothing but exercising the right of free speech] would apply in a § 2261A prosecution in which the defendant caused someone substantial emotional distress by engaging only in otherwise protected speech. That is a question whose resolution we wisely leave for another day.” Id. at *13 (emphasis added).
For Further Reading: More than crack resentencing, probably more than commutation, the retroactive application of the minus-two level reduction in drug cases could have a profound impact for our incarcerated clients. In the recent Commission hearing, DOJ offered a disappointing “compromise” position that would limit retroactive application. For two critiques of DOJ’s position, see Prof Berman's blog here
  And for ED Penn. AFPD Sarah Gannet’s compelling testimony, see here.  Sarah did us all proud - make sure to thank her and the Sentencing Resource Counsel for their hard work on a righteous cause.

First Amendment logo from

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


Labels: , , , ,