United States v. Haischer, No. 13-10392 (Clifton with Tashima and McKeown).

In a forceful and powerful decision, the 9th emphasizes that a defendant should be, and must be, given great latitude in mounting a defense. Here, the defendant in a wire fraud prosecution was precluded from arguing a duress defense. The defendant presented evidence that she was abused and even forced to sign loan papers before her boyfriend and codefendant would take her to a hospital to set her broken leg. The trial court basically forced her to either admit guilt if she wanted to argue duress, or to argue burden of proof and forgo the duress defense. This was error. A defendant can argue inconsistent defenses (duress and failure to meet the burden of proof for mens rea). Moreover, the preclusion of defense evidence under FRE 403 should be rarely used and implicates due process concerns. Clearly prejudice existed. The conviction was vacated and remanded.

A big win for former FPD Fanny Forsman of Nevada.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/25/13-10392.pdf

United States v. Hymas, 13-30239 (Clifton with M. Smith and Hurwitz). 

 

The 9th tries to clear up the standard of proof when relevant conduct is used in sentencing. In this fraud case for a bad mortgage loan application, all sorts of other relevant conduct poured in to raise the offense levels under the Guidelines (and thus to increase the sentence). The 9th vacated the sentence, revisiting the factors to be considered and admitting that the precedent has not been "a model of clarity." Using factors set forth in United States v. Valencia, 222 F.2d 1173 (9th Cir. 2000), vacated and remanded in 532 U.S. 901 (2001), the 9th holds that a preponderance standard was appropriate for the one count to which the defendant plead guilty but that the relevant conduct from the other loans should have been proved by clear and convincing evidence. In Valensia, the 9th identified factors to consider: whether the statutory maximum for the offense in which the relevant conduct was applied was exceeded; whether the prosecution was relieved of its burden to prove guilt; whether a new offense was used or proved; whether conspiracy was used; whether using relevant conduct would result in an upward adjustment of 4 or more offense levels; and whether the Guidelines range doubled (or more). No one factor is determinative. (In a note, the 9th points out that though Valensia was vacated and remanded, the factors are still called by that case name). The focus here was on the four levels or more and doubling the sentence. The 9th found that clear and convincing should have been used.

This case will be well cited in our arguments. The case used a test that weighs the factors. It would seem that the factors we will tend to go with are the four or more levels, the doubling if sentence, and the existence of a conspiracy or the presence of codefendants, as they tend to come up more than others.

This is a significant sentencing case when it comes to relevant conduct.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/25/13-30239.pdf