Case o' The Week: Ninth Obstructs Obstruction Hit - Castro-Ponce and Obstruction of Justice
No obstruction, for stolen alfalfa.
United States v. Castro-Ponce, 2014 WL 5394061 (9th Cir. Oct. 24, 2014), decision available here.
Players: Decision by Judge Gould, joined by Judges Reinhardt and Berzon.
Facts: Castro-Ponce testified in his trial, as he faced meth and money laundering charges. Id. at *1. “His testimony included elaborate explanations for his purportedly suspicious activities.” Id. He explained that conversations on wiretaps referred to paying his mortgage, stolen motorcycle parts, or stolen alfalfa. Id. He explained frequent trips and brief stops (suspected drug deals) as buying and selling auto parts, or car trouble. Id.
Castro-Ponce was convicted, and at sentencing was hit with obstruction of justice. Id. The district court found that Castro-Ponce “’clearly lied on the stand with respect to activities that he testified about and the offer of innocent and not credible explanations for those activities.’” Id.
Issue(s): “On appeal, Castro-Ponce challenges the propriety of the district court’s imposition of the sentencing enhancement for obstruction of justice.” Id. at *2.
Held: “Because the district court did not make explicit findings that Castro-Ponce’s false statements were willful and material, we vacate the enhancement and remand for re-sentencing.” Id. “Here, the district court expressly found that the testimony was false, but did not explicitly find that the testimony was willful or material, saying only that Castro-Ponce ‘clearly lied on the stand with respect to the activities that he testified about and the offer of innocent and not credible explanations for those activities.’ For that reason, we conclude that the sentencing enhancement was incorrectly applied, and so the sentence must be vacated.” Id. at *2.
Of Note: The core issue in this case is whether there must be an express finding of materiality when an obstruction enhancement is applied. Id. at *2. Judge Gould clarifies any ambiguity: “we hold today that an express finding is required.” Id. A corollary issue is whether that finding must be made by the district court, or if the appellate court can make that determination. Judge Gould declines to “engage in such speculation [on the materiality of the false testimony],” and instead explains that the Ninth “require[s] the fact-finder to make those determinations explicitly for our review.” Id. It is a welcome holding, and brings the Ninth in line with the Sixth and Tenth Circuits which both require the district court to make any materiality findings if the obstruction enhancement is applied. Id.
How to Use: District judges often bemoan the “vanishing trial,” or the lack of supervised release or Fourth Amendment evidentiary hearings, but few acknowledge the role the Guidelines have played in creating this problem. The Guidelines potentially exact a five offense-level toll for vigorously defending a case (three levels lost for acceptance, two levels at stake for obstruction). Small wonder trials are few.
Judge Gould (joined by Judges Reinhardt and Berzon) ends the Castro-Ponce decision with a very good soliloquy on the potential impact of obstruction on chilling a defendant’s willingness to testify. Id. at *3. That last paragraph at Section IV merits some heavy quotation, when fending off efforts to punish a defendant with obstruction for having the audacity to testify on their own behalf.
For Further Reading: What is the impact of Decamps, 133 S.Ct. 2276 (2013), on California drug statutes, such as Cal. H&S Code § 11352(a)? That was the issue before the Ninth last week in Huitron-Rocha, No. 13-50306 (9th Cir. Nov. 7, 2014). The answer? Section 11352(a) “is divisible and [ ] the modified categorical approach applies.” Id. at *5. Same now goes, by the way, for Cal. H&S Code § 11351, De La Torre-Himenez, No.
13-50438 (9th Cir. Nov. 7, 2014), and § 11377(a), Coronado v. Holder, 759 F.3d 977, 983-85 & n.4 (Ninth Cir. 2014).
On a much happier sentencing note, the recent passage of California’s Prop 47 may reduce felony convictions to misdemeanors for “millions of people” – 200,000 have already been identified. See Scramble to Implement Prop 47 Begins, available here.
That felony § 851 prior that the AUSA has been threatening if you go to trial? Could be a misdemeanor, now.
Image of Little Rascals character, “Alfalfa” from http://frankwarner.typepad.com/.a/6a00d83451cd3769e2010536cb3cd1970c-pi
Images of the Honorable Judges Reinhardt, Gould, and Berzon from http://www.boxturtlebulletin.com/2014/09/08/66869
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org