Monday, July 28, 2014

McDaniels v. Kirkland, No. 09-17339 (7-25-14)(Wallace with Farris and Bybee).

Lesson: It’s got to be in the record. The 9th finds no Batson violations when the petition appeal tries to rely on evidence of prospective juror comparisons between those African American prospective jurors who were struck and others who were kept on. Under AEDPA, the failure to include juror questionnaires and only a partial voir dire transcript crimps the record. The state courts did not have them for their review. Expansion of the record is not allowed at this stage. The 9th also expressed skepticism that a comparison would have resulted in a Batson violation.

Fong v. Ryan, No. 11-17051 (7-25-14)(Timlin (Sr. D.J. with Bybee; Schroeder dissenting).
Petitioner's conviction for a triple homicide is affirmed. This affirmance is despite the detective lying (no dispute); the prosecutor engaging in misconduct (no dispute in this and the codefendants' cases); the prosecutor's subsequent disbarment (matter of record for this and other codefendants' cases); the questionable trial strategy of defense counsel in calling an informant when the state couldn't and having damning statements come in (supplying the nails and hammer for petitioner's coffin); and the acquittal or dismissals of the two other codefendants. The 9th uses AEDPA to find the state court's decisions not unreasonable in applying the Supreme Court's decision in Napue v. Illinois that elicitation of false testimony is a due process violation. Dissenting, Schroeder states that the petitioner did not receive a fair trial. The dissent is appalled at the prosecutorial misconduct and the inexplicable ineffectiveness and incompetence of defense counsel.

Sunday, July 27, 2014

Case o' the Week: Ninth Not Confrontation-al, Over Hearsay Evidence - Liera-Morales, Testimonial, and Non-Testimonial Evidence

  A mother, sobbing, begs hostage-takers not to kill her son as they demand ransom money and threaten execution.
  A tough factual context for the defense, for a Confrontation Clause challenge to her statements.  United States v. Liera-Morales, 2014 WL 3563356 (9th Cir. July 21, 2014), decision available here.

Hon. Judge Margaret McKeown
Players: Decision by Judge McKeown, joined by Judges Wallace and Gould. Hard-fought appeal by D. Az. AFPD Keith Hilzendeger.  
Facts: Liera-Morales helped smuggle 18-year old Aguilar in to the US and secured him in a trailer home. Id. Liera-Morales and others blackmailed Aguilar’s mother, threatening her on the phone and demanding ransom money. Id. Aguilar’s mother (Avila) called 911, and an agent went to her house to try to arrange a recorded call with her son’s captors. Id. The agent was unable to record the next call, because Avila was “shaking, crying, and very nervous.” Id. She reported that the captors threatened to kill her son if they weren’t paid that afternoon. Id. at *2. After the agent left, Avila received another call where she was told to say good-bye to her son: she also reported this call. Id. at *2. Agents posed as the payment intermediaries, arrested Liera-Morales and recovered Aguilar. Id. When interrogated, Liera-Morales admitted he told Avila she owed money for bringing her son out of the desert. Id. at *2. Liera-Morales was charged with hostage taking, communicating a ransom demand, interstate threats, transporting, and harboring an alien for profit. Id. The government moved to admit the mother Avila’s statements to the agent, as present sense impressions or impromptu excited utterances. Id. The court granted that in limine motion: Liera-Morales was convicted. Id. at *3.

Issue(s): “The central issue in this appeal is whether the admission of statements made by Avila to [the agent] about the telephone conversations with her son’s captors violated the Confrontation Clause. Liera-Morales argues that the unidentified trafficker’s statements to Ms. Avbila were testimonial and complains that he had no opportunity to cross-examine that unidentified interlocutor.” Id. at *3 (footnote and quotations omitted).

Held: “We hold that the . . . admission of the agent’s testimony recounting Avila’s description of the call did not violate the Confrontation Clause of the Sixth Amendment because the call was made primarily to address an ongoing emergency and the challenged statements were nontestimonial.” Id. at *1.

Of Note: Was the agent’s purpose, when setting up the recorded call, to respond to a hostage situation, or to build a future case? Why try to record the call, if the agent’s primary purpose was to find and save the 18-year old son? That question makes a difference, when trying to gauge whether this evidence was “testimonial.” The Ninth doesn’t find this (attempted) recording dispositive of the agent’s intent, opining the agent “primarily sought to record the call to obtain information about Aguilar’s location and to facilitate the plan to rescue Aguilar.” Id. at *5. Citing a 2013 case, Judge McKeown explains that while the recording might have been used for a prosecution, that potential future use “does not automatically place the statements within the ambit of the testimonial.” Id. at *5 (citation and quotations omitted). 

How to Use: Judge McKeown goes to considerable lengths to explain why this “emergency” situation meant that Avila’s statements were nontestimonial and did not run afoul of Crawford. Id. at *3 – *5. There had been explicit death threats and this was an “ongoing emergency.” Id. at *4. The agent’s actions around the call supported the government’s arguments that his primary purpose was to respond to these threats. Id. at *4. The statements lacked any degree of formality and occurred in an informal, high-stress environment. Id. at *5. Judge McKeown describes an extraordinary situation supporting the “nontestimonial” finding:: demand equally extraordinary facts when the government tries to cram future hearsay into this narrow Crawford exception.
For Further Reading: What’s the deal with federal defenders and clemency work? Defenders are eager to tackle clemency petitions for their former clients (and others), DOJ very much wants our help for this righteous initiative -- what’s the problem?
   For an interesting piece on this unexpectedly complicated issue, see the Al Jazeera article here.

Image of the Honorable Judge Margaret McKeown from

Steven Kalar, Federal Public Defender ND Cal. Website at

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Sunday, July 20, 2014

Case o' The Week: Ninth Turns Up Nose at State Action and Federal Sentences - Lizarraga-Carrizales and Safety Valve

Lizarraga may have obtained the termination of his probation in hope of affecting his sentence for the federal offense, thus risking an odor of gaming the federal sentencing system.” United States v. Lizarraga-Carrizales, 2014 WL 2958614, *5 (9th Cir. July 2, 2014), decision available here.

Players: Decision by Judge Callahan, joined by Judges Trott and District Judge Bennett. Hard-fought appeal (following some admirable pre-sentencing litigation) by AFD James Fife, Federal Defenders of San Diego, Inc.

Facts: Lizarraga-Carrizales was caught on the border with 7 kilos of heroin, and convicted of drug importation. Id. at *1. That triggered a ten-year mand-min under 21 U.S.C. § 960(b). Id. 
  The district court rejected his arguments for Safety Valve, finding him ineligible because he had too many criminal history points (five, instead of the maximum of one). Id.  

Issue(s): “Lizarraga claims that the district court improperly engaged in judicial fact-finding in denying him safety valve relief from the mandatory minimum sentence and misapplied the Sentencing Guidelines.” Id. at *1. “Lizarraga’s primary contention on appeal is that the facts underlying the safety valve determination must be submitted to a jury under Apprendi . . . . and Alleyne . . . . We have yet to decide in a published decision whether the safety valve determination implicates Alleyne . . . .Id. at *2 (internal quotations and citations omitted)..  

Held:We hold that the safety valve determination under 18 U.S.C. § 3553(f) does not implicate Alleyne v. United States . . .  133 S. Ct. 2151 . . . (2013), because it does not increase the statutory minimum sentence.” Id. at *1. “We agree with the First Circuit that the denial of safety valve relief does not increase the statutory maximum or minimum such that Alleyne is implicated . . . . Accordingly, the factual predicate for denying safety valve relief need not be proven to a jury.” Id. at *3.  

Of Note: Lizarraga-Carrizales is a buffet of unappetizing entrees for counsel slugging away for their Safety Valve-(ish) clients. Through some clever and aggressive litigation, two of the state probation terms that caused unwanted points in this case were ended early, nunc pro tunc, in state court. Id. at *4. 
  The Ninth resuscitates these dead probationary terms, concluding that the key issue was whether the defendant was on probation at the time of the offense – not at the time of the federal sentencing. The tone of the opinion takes umbrage at state court’s tinkering with facts underlying a federal sentence. Interesting to contrast this federal supremacy theme to the remarkable deference shown to state courts in AEDPA habeas litigation, where state rulings on criminal law issues seem to reign supreme.

How to Use: A client gets a CH point only if the actual probation sentence imposed is more than a year. What if a Safety Valve aspirant gets that state probationary term reduced to less than a year, nunc pro tunc, after the federal arrest? That’s one narrow little issue left unresolved in Lizarraga-Carrizales. See id. at *5. There’s some tension in Ninth law on this issue – take a look if a sympathetic state judge is open to some help on a probationary term.
For Further Reading: The -2 offense level reduction in the drug guidelines is fully retroactive! See Press Release here.  The Sentencing Commission voted on Friday July 18 to make their amendment to the drug guideline fully retroactive. On average, this change will save 25 months off of a federal sentence. Id.
 Sentencing Commissioners in office of Hon. Senator Durbin
Barring Congressional action, judges can start considering petitions for reductions after November 1, 2014 (though no inmate will be released before November 1, 2015). 
  In the ND Cal, new SF AFPD Shilpi Agarwal will be spearheading the effort to get the district’s CJA clients retroactive relief – stay tuned for more news and updates on these efforts. 
  Finally, NorCal’s own Judge Breyer was one of the Commissioners who voted for full retroactivity of this amendment – much credit due to the Hon. CRB (and his fellow Commissioners) for this remarkable USSG development.

Image of man holding nose from, Image of Commissioners at the office of the Honorable Senator Dick Durbin from

Steven Kalar, Federal Public Defender, ND Cal Website at


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