Sunday, January 25, 2015

Case o' The Week: Voice ID "All Right" by Ninth - Ortiz, FRE 901, and (Cross-Language) Voice Identifications

  The kids are all right.
  Richard Ortiz – well, less so.
United States v. Ortiz, 2015 WL 294305 (9th Cir. Jan. 23, 2015), decision available here.

Players: Decision by Judge Tallman, joined by Judges McKeown and Owens.

Facts: Ortiz was charged with being part of a large Mexican drug trafficking organization. Id. at *1. Ortiz has been released on another federal charge, and was dealing for the organization while on supervised release. Id. 
   His probation officer – who spoke Spanish “a little” – had spoken with Ortiz six to ten times while he was on supervision, and had met him ten to fifteen times, but had only spoken to him in English. Id. 
   During the trial, and over defense objection, this P.O. was called to identify Ortiz’s voice on wiretaps, as he spoke Spanish. Id. The P.O. testified that she recognized English phrases in the call, like “all right” as a distinctive tendency of Ortiz. Id. 
  Ortiz was convicted and sentenced to fifteen years. Id.

Issue(s): “Ortiz contends the district court erred in admitting the opinion testimony of his United States probation officer, Angela McGlynn, identifying Ortiz’s voice speaking primarily Spanish on wiretapped calls because McGlynn does not speak Spanish and had only heard Ortiz speak English.” Id. at *1 (fn. omitted).

Held: We have never before determined whether a person who has not heard the speaker in a specific language and speaks only “a little” of the language herself, but also recognized the voice from a handful of English words in the taped conversations plus multiple other English conversations, has the ‘requisite familiarity’ to authenticate a voice under [FRE] 901(b)(5). Id. at *2. Here, [the Probation Officer’s] familiarity with Ortiz’s voice was substantially more than the minimal familiarity Rule 902(b)(1)(5) requires for admission of lay identification testimony.” Id. at *3. “Since we hold the district court did not abuse its discretion in ruling on the authentication of his voice on the recordings, we affirm Ortiz’s conviction.” Id.

Of Note: The standard of review, for the Ninth's analysis, is “abuse of discretion.” Id. at *2. Judge Tallman quotes from the seminal ‘09 Hinkson en banc decision, explaining that the Ninth will uphold the evidentiary ruling unless it is “illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” Id. at *2. Hinkson's abuse-of-discretion test is a forgiving standard, with much deference afforded to the district judge. Of historical interest: the D.J. in Hinkson case was Judge Tallman, sitting by designation. See blog here

How to Use: The voice I.D. in Ortiz – well, it stinks. The prosecutor first specifically asked the Probation Officer if she could recognize Ortiz’s voice – then played the P.O. the calls. Not surprisingly, the P.O. identified Ortiz. Id. at *2 n.3 Why wasn’t this identification procedure unduly suggestive (thus violating due process) under Neil v. Biggers, 409 U.S. 188, 199 (1972)? Maybe it was – but Ortiz didn’t raise it before the district court or in his opening brief, and the Ninth finds the issue waived. Id. at *2 n.3. Beware of the suggestive ID issue lurking with voice-identification issues (and raise the early!)
For Further Reading: Eric McDavid was sentenced to twenty years on federal charges, despite a vigorous trial defense that he was entrapped by the FBI’s young female informant. 
  After he served years in federal prison, a slew of documents have now appeared revealing that the informant, Anna, exchanged love letters with her target (a romance denied and downplayed by prosecutors in the trial). It turns out that the FBI had in fact ordered a polygraph of Anna while she was working on McDavid– then mysteriously cancelled it. (The name of the AUSA who signed off on the polygraph has now been redacted). Brady / Giglio evidence, that went to the heart of a vigorous entrapment defense, never disclosed during a very high profile federal trial?
   For a compelling piece on a very troubling prosecution in the ED Cal, see Ben Rosenfeld, Eric McDavid Deserves Answers from Federal Officials Who Kept Information from Him at Trial, available here

Image of “The Kids are All Right” from

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


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Monday, January 19, 2015

Case o' The Week: Down for the Count(s) - Hertler and Max Time for Supervised Release Violations

  Time served on supervised release violations reduces exposure on future S/R terms.
  Except when it doesn’t.
United States v. Hertler, 2015 WL 178350 (9th Cir. Jan. 15, 2015), decision available here.

Players: Decision by Judge Paez, joined by Judges Pregerson and Watford. Hard-fought
Hon. Judge Richard Paez
appeal by D. Montana AFPD Andrew Nelson.

Facts: Hertler plead guilty to possession and distribution of child porn. Id. at *1. In addition to a custodial term, the district court imposed a thirty-six month concurrent term of supervised release. Id. Soon after release Hertler’s PO filed a Form 12 alleging several violations. Id. Hertler admitted the allegations, was revoked, and sentenced to “consecutive terms of nine months of imprisonment on Count 1 and three months on Count 2.” Id. The court also imposed concurrent terms of supervised release on each of the two counts. Id. Within two weeks from release on this violation, Hertler was charged with a new Form 12. Id. Hertler admitted to possessing sexually explicit movies, was revoked, and was sentenced to fifteen months of imprisonment on Count 1 and one month on Count 2, to run concurrently. The court also imposed a twenty month term of supervised release on Count 2. Id. at *2.

Issue(s): “[ ] Hertler appeals a postrevocation term of supervised release. He argues that the new term of twenty months exceeds the maximum period that can be imposed under 18 U.S.C. § 3583(h). That subsection authorizes a district court to impose a postrevocation term of supervised release up to the statutory maximum, but requires the court to reduce the length of supervised release by ‘any term of imprisonment that was imposed upon revocation of supervised release.’ Hertler contends that the phrase ‘any term of imprisonment’ in § 3583(h) refers to any term of imprisonment imposed for all offenses following the latest revocation of supervised release. He therefore argues that the district court erred when it construed this clause to refer only to all terms of imprisonment imposed for a single underlying offense. He further argues that, as a result of this error, the district court concluded that he was eligible for up to thirty-two months of additional supervised released when he should have been sentenced to no more than nine.” Id. at *1.

Held: “[W]e agree with the construction of ‘any term of imprisonment’ adopted by the district court, the Eighth Circuit . . . and the Fifth Circuit . . . . We therefore affirm.” Id.

Of Note: The rule of lenity takes a ding in this opinion. Id. at *6. Judge Paez concludes that there is no “grievous ambiguity” in the statute, and that § 3583’s “text and structure allow us to conclude that the most reasonable interpretation of § 3583(h) is the one advanced by the government.” Id. at *6. A disappointing discussion of our favorite rule of statutory construction.

How to Use: Grab a scratch pad and a calculator. 
  In a nutshell, the supervised release statute requires the district court to knock time served for violations off of the maximize term of supervised release. Id. at *3. It is established law that the court should aggregate all of the time served on various violations, to determine the maximum term of supervised release. Id. at *2. Hertler (compellingly) argued the court should aggregate all violation time served on various counts, and apply them against the sole concurrent supervised release max. Id. The Court doesn’t buy it, and ultimately agrees with the government that “any term of imprisonment” in Section 3583 (the supervised release statute) refers to “terms of imprisonment imposed with respect to the same underlying offense.Id. at *4 (emphasis in original). 
  Add Hertler to your S/R research files – you’ll need it (and an abacas) to calculate your client’s Form 12 exposure when the original conviction had multiple counts.
For Further Reading: ND Cal CJA Attorney Mark Vermuelen was part of a team that recently secured a remarkable victory in the ED Cal. See Sacramento Bee article here
   The new deal for Eric McDavid came after staggering Brady / Giglio violations were revealed – violations never adequately explained to presiding Judge England. Id. Yet another outbreak, in Judge Kozinski’s “epidemic of Brady violations.” See blog here. 

Steven Kalar, Federal Public Defender ND Cal. Website at


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Thursday, January 15, 2015

United States v. Hertler, No. 13-30273 (Paez joined by Pregerson and Watford)

--- Under 18 U.S.C. § 3583(h), when a court revokes a term of supervised release, it may impose a term of imprisonment followed by another term of supervised release. But that new term of supervised release cannot be longer than the supervised-release term initially imposed "less any term of imprisonment that was imposed upon revocation of supervised release." This case applies that rule to a supervised-release term imposed for conviction on multiple counts, and holds that the supervised-release term imposed for a particular count following revocation need only be reduced by the terms of imprisonment that have previously been imposed on that count, not for all other counts. This is so even though § 3624(e) essentially requires the court, at the initial sentencing hearing, to impose concurrent terms of supervised release for multiple counts of conviction.

The decision is here:

United States v. Zamudio, No. 13-10322 (Wallace joined by Schroeder and Owens)

--- The Ninth Circuit held that the district court correctly denied an illegal-reentry defendant's collateral attack on the underlying removal order, and that the district court correctly declined to instruct the jury on a constructive-knowledge theory relating to an affirmative defense based on the statute of limitations, because the defendant's fraudulent entry using an invalid green card didn't put the government on notice as to the defendant's criminal conduct. The jury also correctly rejected the defendant's statute-of-limitations defense.

The defendant was removed after suffering two convictions -- a 1994 conviction for kidnapping, in violation of Cal. Penal Code § 207(a); and a 2000 conviction for felony possession of methamphetamine, in violation of Cal. Health & Saf. Code § 11377(a). He served three years on the kidnapping and 100 days on the drugs. After he served the drug sentence, he was placed in removal proceedings and, through counsel, conceded removability. An immigration judge ordered him removed to Mexico. In 2001, he entered the United States using his green card, which had been implicitly revoked when he was previously removed from the United States. He apparently lived without detection in the United States until 2012, when he was found in the Sonoma County Jail. He was then indicted for illegal reentry.

The removal proceedings were not fundamentally unfair, so the district court correctly denied the defendant's motion to dismiss the indictment. Both of the defendant's prior convictions are for removable offenses, and the defendant was bound by his lawyer's concession of removability even if it was wrong. The immigration judge's failure to advise the defendant of the possibility of relief from removal was not prejudicial, because even if the defendant had received relief from removal based on the 1994 conviction, he would not have been eligible for relief from removal based on the 2000 conviction. His immigration lawyer didn't even meet the Strickland standard for ineffective assistance -- he had no professional obligation to anticipate the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001) -- and thus didn't meet the higher standard for ineffective assistance in removal proceedings. Nor could the defendant demonstrate prejudice, because he didn't point to any actually incorrect statements that his lawyer made in removal proceedings.

The court has never decided whether, in an illegal reentry case, the government's constructive knowledge of the defendant's presence in the United States beings the running of the statute of limitations. Nevertheless, the district court didn't need to instruct the jury on this theory, because the defendant's presentation of a fraudulent travel document (here, an expired green card) at the time of entry affirmatively misled government officials. For that reason, the evidence presented at trial was sufficient to defeat his statute-of-limitations defense.

The decision is here:

United States v. Dibe, No. 13-50515 (Gilman (6th Cir.) joined by Graber and Callahan)

--- The Ninth Circuit held that ineffective assistance of counsel is not a valid basis under 18 U.S.C. § 3553(a) for imposing a lower sentence.

The defendant was the U.S. representative of a Nigerian internet fraud scheme, and was charged in federal court in Los Angeles with 15 counts of wire fraud. The government offered him a plea deal that included a stipulated sentence at Guidelines offense level 27, but the defendant didn't accept the deal until after the deadline. As a result, he pleaded guilty to all the counts in the indictment without a plea agreement, and the sentencing judge computed his Guidelines range based on offense level 34. Ultimately the sentence imposed was 120 months, 31 months below the bottom of the Guidelines range.

On appeal, the defendant argued that ineffective assistance of counsel in connection with plea negotiations should have led the sentencing judge to impose an even lower sentence. The Ninth Circuit disagreed. Ineffective assistance of counsel isn't one of the statutory purposes of sentencing, because it isn't connected to the history and characteristics of the defendant or the nature and circumstances of the offense. At best it affects the integrity of the judicial proceedings, but even that isn't one of the statutory sentencing factors. Finally, the remedy for ineffective assistance isn't to impose a lower sentence; instead, it's to allow the defendant to withdraw his guilty plea or perhaps to direct the government to extend the same favorable plea offer a second time.

The court also upheld the below-Guidelines, 120-month sentence as substantively reasonable in this case.

The decision is here: