Saturday, November 29, 2014

Case o' The Week: Gov't Savors Ninth's Waiver Favor - Brooks and Confrontation Clause challenges

  Appellant Rafiq Brooks has a hundred reasons to be thankful for his Confrontation Clause victory.
  (One for each dollar of his special assessment, on the sole reversed count).
United States v. Brooks, 2014 WL 6610314 (9th Cir. Nov. 24, 2014), decision available here.

Players: Decision by Judge Friedland, joined by Judges Schroeder and Owens.
Hon. Judge Michelle Friedland

Facts: DEA agents investigated a conspiracy to mail pot. Id. At the request of DEA agents, a postal inspector searched identified boxes and discovered marijuana. Id. On November 9th, agents surveilled a suspect who mailed another box of pot. Id. Later searches of two apartments revealed marijuana, guns and drugs. Id. at *2. Brooks was charged with conspiracy and drug offenses, and with a count of possession with intent to distribute, for mailing marijuana on November 9. Id. At trial an agent identified Brooks as the man who mailed pot on November 9th. Id. Another agent testified about information related to a shipped box (tracking number and mailing information), that a postal supervisor told him on the phone. Id. The defense objection to this testimony was overruled and Brooks was convicted on all counts. Id. The government did not argue on appeal that any error was harmless beyond a reasonable doubt, and thus waived this argument. Id. at *7.

Issue(s): “At Brooks’s jury trial, the government introduced out-of-court statements by a nontestifying post office supervisor and photographs of a seized package that was the subject of those statements. Brooks argues that the admission of this evidence violated his rights under the Confrontation Clause of the Sixth Amendment.” Id. at *1.

Held:We conclude that admission of the photographs did not violate the Confrontation Clause, but that admission of the postal supervisor’s statements did, and we reverse the possession conviction that depended on those statements.” Id. “[T]he prosecution introduced statements by the postal supervisor that were testimonial and offered for their truth. Because the postal supervisor did not testify, and there is no contention of unavailability or that Brooks had a prior opportunity to cross-examine the supervisor, the admission of the statements violated the Confrontation Clause.” Id.

Of Note: Brooks was sentenced to over nine years of federal prison. Just how much will this big Confrontation Clause win save him? $100 -- the Special Assessment on the sole reversed possession count, for the November 9th trip to the post office. See id. at *8 & n.6. 
   “Wait!” you protest – “how is that possible – why not reversal on all counts? The government waived its harmless error argument!” 
  Despite this undisputed waiver, the Court nonetheless exercised its discretion in Brooks to “overlook the government’s waiver,” save the government’s bacon, and sua sponte find this constitutional error harmless. Id. at *7. An aggravating end to an otherwise admirable decision.

How to Use: Putting aside the harmless error finagle, Judge Friedland provides a very thoughtful Confrontation Clause deconstruction of the postal supervisor’s statements, working through the Supreme’s decisions in Davis and Hammon. Id. at *4. The analysis has a welcome practical tone – Judge Friedland asks if the agent’s call to the postal supervisor wasn’t to “build a case for prosecution, then what was its purpose?” Id. at *6. A good decision to cite for Confrontation Clause battles.
For Further Reading: For a feisty critique of the harmless error doctrine, see Steven H. Goldberg, Harmless Error: Constitutional Sneak Thief, 71 J. Crim. L. & Criminology 421 (1980), available here. 
  What could be worse than harmless error? Waiver of the government’s waiver of the doctrine. Tolerating appellate waiver, according to government attorney Melissa Devine, is “unpredictable, inconsistent, and sometimes, unfair.”
   (Unless, of course, the court overlooks defense waiver -- which is an admirable exercise of judicial discretion). 
  For a helpful discussion on the waiver of waiver, see, Melissa Devine, When the Courts Save Parties from Themselves: A Practitioner’s Guide to the Federal Circuit and the Court of International Trade, available here

Image of the Honorable Michelle Friedland from

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


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Saturday, November 22, 2014

Case o' The Week: "Question the Wisdom or Necessity" - Agront and Void for Vagueness Due Process Challenges

Lucky Lear.  The King's agitated confrontation with his supportive adult child didn’t take place in a VA parking lot. 
  (He’d have been arrested and convicted for “loud and boisterous conduct.”)
 United States v. Agront, No. 12-10218 (9th Cir. Nov. 21, 2014), decision available here.

Players: Opinion by Judge Fisher, joined by Judges Thomas and Berzon. Hard fought appeal by AFPDs Heather Angove and Cynthia Lie, ND Cal FPD.

Facts: Louis Agront Sr., a vet, was having problems. He had been having knee and foot pain, and agreed when his adult son and daughters asked him to go to the VA hospital in Palo Alto. Slip Op. at 3. Unbeknownst to him, the kids were taking them to the VA because they were concerned about recent changes to his behavior. Id. When he learned of the ruse the first trip, Agront refused treatment and began walking home. His children tried again, and brought him back – (falsely) assuring him he’d see a normal podiatrist if he returned. Id. Agront’s encounter with a VA nurse and social worker did not go well: he paced, had pressured and quick speech, and stormed off away from the hospital. Id. at 4. Agront’s son confronted him the parking lot, about 25 yards away. Id. Their yelling prompted the social worker to call the VA police; the cops arrested Agront (but not his son), and Agront was ultimately charged with disorderly conduct which created a loud, boisterous, or unusual noise (a Class B misdemeanor). Id. at 6. A federal magistrate judge denied the defense Due Process motion to dismiss because the regulation was void for vagueness, and convicted Agront after a bench trial. Id. The district court affirmed.

Issue(s): “[Agront] . . . argues that that, as applied to his conduct, the regulation is manifestly vague even under [his proposed narrowing] interpretation because he was cited for violating the regulation, but no citation was given to his son or to a patient playing loud music from a radio earlier that day.” Id. at 8.

Held:Applying [Agront’s proposed] reasonable construction of the regulation, Agront’s conduct was clearly prohibited.” Id. at 13. “We hold that disorderly conduct creates sufficiently loud, boisterous, and unusual noise to be prohibited under § 1.218(a)(5) and (b)(11) when such conduct would tend to disturb the normal operation of the VA facility. Applying that interpretation of the regulation, we affirm Agront’s conviction.” Id. at 17.

Of Note: How does the Ninth feel, about the vital federal interest in prosecuting an upset vet, struggling with his adult kids who are trying to help him as he wrestles with emotional or mental health issues? Judge Fisher sums it up well: “One may reasonably question the wisdom or necessity of the citation, and of the prosecution that followed, but Agront has not shown it was unconstitutional.” Id. at 14. Notably, the Court then drops a footnote to the VA’s own regulations, that caution that arrest is generally not the appropriate remedy for disruptive patients. Id. at 14 & n. 6.

How to Use: While the defense lost the (hard fought) war, it won an important battle: a new and narrowed standard for disorderly conduct. Judge Fisher explains, “The VA facility context therefore requires adopting the controlling standard of conduct for which Agront advocates: the quantum of ‘[d]isorderly conduct which creates loud, boisterous, and unusual noise’ that is required to violate the regulation is conduct sufficiently ‘loud boisterous and unusual’ that it would tend to disturb the normal operation of the VA facility.” Id. at 12. The Court also adds a requirement that this disruptive conduct must pose an “actual or imminent interference’ with the facility’s operation.” Id. at 12 & n.5. Agront is now the good new test for this otherwise vague reg.  
For Further Reading: This federal prosecution made the press. For a local summary of the big case, take a look at Vet’s conviction upheld for ‘loud and boisterous conduct’ at Palo Alto VA hospital, available here.

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


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Monday, November 17, 2014

United States v. Martinez, No. 13-10563 (Owens with Schroeder and Friedland).
Sykes alive, one can't run away from precedent. This is an ACCA case, where one prior -- California Vehicle Code § 2800.2 for vehicle flight from a pursuing peace officer -- determines whether the defendant gets the mandatory minimum 15 year sentence. The Ninth Circuit held that the prior flight conviction is a possible crime of violence under ACCA's residual clause. The Supreme Court in Sykes found that a similar Indiana state statute was a violent felony. The court rejected the argument that § 2800.2 doesn't qualify under the residual clause because it has a lower mens rea and fewer actus reus elements than the Indiana statute at issue in Sykes. Finally, the 9th rejects a vagueness and an Apprendi-based challenge to ACCA.

The decision is here:

United States v. Waters, No. 13-50332 (per curiam; panel was Kleinfeld, Graber, and Owens).

The Ninth Circuit affirmed the dismissal of a motion under 18 U.S.C. § 3582(c)(2) for a retroactive sentence reduction for possession of crack cocaine under Amendment 759 to the U.S. Sentencing Guidelines. It did so because the defendant was a career offender, so he isn't eligible for the reduction -- just as the court had held in his previous appeal. Furthermore, the amendment to U.S.S.G. § 1B1.10 that restricted the district court's ability to reduce the sentence below the new Guidelines range was not an ex post facto violation because the statement did not increase a sentence; it just limited the availability of a present reduction to a past sentence.

The decision is here:

Sunday, November 16, 2014

Case o' The Week: Raya Hope for (d) Challenges - Raya-Vaca and Due Process Rights in Expedited Removal Proceedings

The Hon. Judge Mary Murguia

 “A nation’s greatness is measured by how it treats its weakest members,” opined Ghandi.
  The Ninth measures up well, in a new due process decision (with teeth!) for an alien facing illegal reentry charges.  
United States v. Victor Raya-Vaca, 2014 WL 5802287 (9th Cir. Nov. 10, 2014), decision available here.

Players: Decision by Judge Murguia, joined by Judges Reinhardt and Fisher. Big win for Ass’t Federal Defender Chloe Dillon, Federal Defenders of San Diego, Inc.

Facts: Raya-Vaca went through expedited removal proceedings under 8 USC § 1225 and removed, was later found in the U.S., and was charged with illegal reentry under 8 USC § 1326. Id. at *1. Section 1225 was originally used for the expedited arrival of aliens “arriving” in the US, but the Dept. of Homeland Security has expanded the procedure for aliens discovered within 100 miles of the US border. Id. at *2. A Border Patrol agent had given Raya-Vaca a record of sworn statement, and the agent ordered him removed under Section 1225. Id. at *3. During the Section 1326 prosecution, Raya-Vaca challenged the validity of this Section 1225 removal. Id. at *4. In a sworn statement in support of his motion, Raya-Vaca explained that the sworn statement he signed was incomplete and that he did not understand what he was signing. Id. at *7. Raya-Vaca’s motion was denied, and he entered a conditional plea, preserving his right to appeal. Id. at *4.

Issue(s): “Raya-Vaca contends that his expedited removal proceedings did not comport with due process because, among other errors, the immigration officer who entered the removal order failed to provide Raya-Vaca with notice of the charge against him and an opportunity to respond. Raya-Vaca further asserts that he suffered prejudice as a result.” Id. at *1.

Held:We agree.” Id. at *1. “[W]e hold that Raya-Vaca was entitled to expedited removal proceedings that conformed to the dictates of due process.” Id. at *6. “[W]e conclude that any failure to inform Raya-Vaca of the charge against him and to provide him the opportunity to review the sworn statement constituted a violation of Raya-Vaca’s due process rights.” Id. at *6. “We further conclude that Raya-Vaca’s due process rights to notice and an opportunity to respond were indeed violated during his expedited removal proceedings.” Id. at *7. “[W]e hold that the immigration officer failed to advise Raya-Vaca of the charge against him and to permit him to review the sworn statement, in contravention of Raya-Vaca’s due process rights. In so holding, we reject the Government’s argument that in order to show the due process violation itself—the first prong of a showing of fundamental unfairness – Raya-Vaca must establish that he was prejudiced by the failure to comply with the regulation.” Id. 
  “[B]ecause Raya-Vaca could plausibly have been granted relief in the form of withdrawal of his application for admission, we hold that his 2011 removal order is invalid and cannot serve as the predicate for his conviction under 8 USC § 1326. We therefore reverse the denial of Raya-Vaca’s motion to dismiss the information and his conviction.” Id. at *13.

Of Note: Much to celebrate in this thoughtful opinion. Big picture, Judge Murguia holds that these “turn around” Section 1225 removals trigger due process protections for the aliens who are being questioned and removed. Id. at *6. It is a just decision that honors the dignity of aliens faced with the most cursory review “process” imaginable (though the Court wisely characterizes this holding as one compelled by Supreme Court precedent). The prejudice finding on Raya-Vaca’s facts is also worth a close read (and extrapolation into other Section 1326(d) challenges). Id. at *8-*9.

How to Use: In an admirable argument, the San Diego Defender threw the government’s own figures back at it in the prejudice fight. Id. at *11. Raya-Vaca well-illustrates the effective use of statistical arguments for the benefit of our clients (and Judge Murguia’s citation of the Supreme Court’s own use of stats helps as well). Id.
For Further Reading: Happy tenth birthday, Crawford. For a great piece on how the Court got it wrong with Roberts, and what the Supremes can do to get the doctrine back on track, see Crawford v. Washington, The Next Ten Years by Professor Jeffrey Fisher, available here

Image of the Honorable Judge Mary Murguia from

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


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