United States v. Navarrette-Aguilar, No. 14-30056 (12-28-15)(Paez with Fisher and Ikuta).

The 9th affirmed in part and reversed in part a convictions for heroin trafficking.  The reversals related to findings that more than one kilogram of heroin was distributed.  There was insufficient evidence to support such a finding; and the district court erred in finding that the conspiracy would have eventually distributed a kilo.  This was speculation.  The finding was for an element, not sentencing, and therefore reversal was in order.  There was no abuse of discretion in allowing the prosecutor to impeach a defense  witness (defendant's sister) with the defendant's prior convictions when she, the witness, opened the door by saying she "knew her brother" was not involved in drugs.  Any error moreover was harmless.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/28/14-30056.pdf

McDaniels v. Kirkland, No. 09-17339 (12-24-15)(en banc)(Friedland writing and concurrence by Ikuta, joined by Tallman Callahan).

The 9th remanded to the original panel a Batson claim.  The en banc court found that in 2003, a court did not have to undertake a comprehensive juror comparison in a Batson challenge, if not requested by counsel.  Only in Miller -El, in 2005, did the Supremes conduct a comparative analysis.    The 9th though reaffirmed precedent that a federal court, in assessing habeas claims under AEDPA and after Pinholster, can consider evidence that was available to the state court (such as a comparative juror analysis) even if the state court failed to conduct such a comparison.  The concurrence stressed that Miller-El did not establish a new procedural rile to conduct such comparisons and that failure to do so would not result in a contrary decision to Supreme Court precedent.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/24/09-17339.pdf

United States v. Taylor, No. 14-50528 (12-29-15)(Schroeder with Friedland and Chabria, D.J.). 

The 9th affirms convictions in a false statements to a bank case.  The issue is whether the false statements had to have some risk of loss to the financial institution.  The 9th held that "risk of loss" was not required nor stated in the statute, 18 U.S.C. § 1014.  The 9th looked to United States v. Wells, 519 U.S. 482 (1997), where the Court held that materiality was not required for false statements.  Other circuits have used that reasoning, and the analysis of the statute, to reject a risk of loss requirement.  The 9th joins the 4th, 5th, 7th and 10th in so holding.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/29/14-50528.pdf

 

McKinney v. Ryan, No. 09-99018 (12-29-15)(en banc)(Fletcher writing the majority; Bea dissenting with Kozinski, Gould, Tallman, and Callahan). [Note: Az FPD argued as amicus in this case).

In an en banc decision, the 9th reverses a death sentence and remands because the Arizona state supreme court applied an unconstitutional legal standard in reviewing death sentences.  The unconstitutionality was the court's requirement of a casual nexus between mitigation and the offense in violation of Eddings v. Ryan, 455 U.S. 104 (1982).  In so ruling, the 9th overruled its precedent in Schad v. Ryan, 671 F.3d 708 (9th Cir. 2011), which barred an assumption of unconstitutionality absent a clear indication of application of the wrong standard.  The Arizona Supreme Court followed its erroneous unconstitutional standard for fifteen years.

Here, the unconstitutional casual nexus was applied to the petitioner's PTSD.  The state court refused to apply the PTSD  as a nonstatutory mitigator. This refusal was counter to clear constitutional law under Eddings.

The error was not structural.  However, it had a substantial and injurious effect on the sentence, and thus was prejudicial within Brecht v. Abrahamson, 507 U.S. 619 (1993). 

The dissent argues that the majority misconstrues Supreme Court precedent, ignores AEDPA deference, misstates the record, and attacks the Arizona Supreme Court.  As for prejudice, the dissent accuses the majority of downplaying the gruesome facts to manufacture prejudice.

Congrats to amicus AFPDs Michael Burke and Robin Konrad of the CHU, Arizona FPD.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/29/09-99018.pdf

 

Styers v. Ryan, No. 12-16952 (12-3015)(Bea with Farris and Kozinski)(Note:  The Az FPD represents a co-defendant).

The 9th affirms the denial of petitioner's motion for a Ring resentencing.  The 9th had previously granted a conditional writ to the Arizona Supreme Court due to Eddings error.  (If this sounds familiar, Eddings and the Arizona Supreme Court was the focus of yesterday's en banc decision in McKinney v. Ryan, No. 09-99018 (9th Cir. Dec. 29, 2015)(en banc).

Here, when the 9th granted the conditional writ, the Attorney General moved the Arizona Supreme Court to reweigh.  The court did.  This case involved the murder of a young boy. In weighing the mitigation of PTSD, the court found concluded that since the PTSD had no casual nexus to the offense, it had very little weight and would not alter the death sentence.  The 9th also held that the petitioner was not entitled to a Ring jury resentencing.  The 9th used AEDPA deference to uphold the state supreme court in concluding that the conviction was final, and that the writ from the 9th had instructed only a reweighing.

Two of the judges on this panel were dissenters on the McKinney en banc panel.  Indeed, Bea wrote the dissent, where he accused the majority in McKinney of smearing the Arizona Supreme Court. 

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/30/12-16952.pdf

United States v. Cisneros-Rodriguez, No. 13-10645 (12-23-15)(Fletcher with Christen; Silver, Sr.  D.J., dissenting). 

The 9th holds that an ICE agent who conducted the defendant's administrative removal proceeding violated her due process rights when he told her that an attorney would be of no help.  She was, despite the state drug conviction that made her an aggravated felon, nonetheless facially eligible for a U-visa, which is a form of hardship relief. The 9th found prejudice because the defendant possibly could have obtained one in 2010, when the hearing took place, despite already being in a removal proceeding.  The defendant is 32 years old, undocumented, but has lived here most of her life; her husband and two sons are United States citizens. She also suffered abuse and injuries when she was held in the state jail.

Dissenting, Silver would affirm, based on the credibility determination of the district court that the defendant was not credible in supposedly having asked for a lawyer as to relief.  Silver also believes that relief was not possible.

Congrats to Varell Fuller, AFPD in the Cal N (San Jose) office.  It was a sad case, and this was a great outcome.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/23/13-10645.pdf

 

Case o' The Week: A Very Feliz Navidad - Cisneros-Rodriguez and Administrative Removal Hearings

Hon. Judge William Fletcher

  Merry Christmas, Xochitl.

United States v. Cisneros-Rodriguez, 2015 WL 93009958 (9th Cir. December 23, 2015), decision available here.

Players: Decision by Judge Fletcher, joined by Judge Christen. Dissent by DJ Silver. 

Admirable win for San Jose Branch Chief Varell Fuller, and Research and Writing Attorneys Lara Vinnard and Heather Angove, ND Cal FPD.

Facts: Xochitl Cisneros-Rodriguez, a 32-year old Mexican national, was brought to the States as a child. Id. She was married to a US citizen husband, and mother to two US-citizen sons. Id.  

  Before this illegal reentry case, Cisneros was arrested for possession of meth for sale. Her co-D, a woman named Rodriguez, threatened and beat Cisneros. Id. Cisneros provided information against Rodriguez; both women were ultimately convicted of various crimes. Id. at *2. When Cisneros’ drug conviction was final she was placed in administrative removal proceedings (conducted by an ICE agent, not an Immigration Judge). Id. After a brief proceeding, a removal order was ultimately finalized: the next day Cisneros was removed to Mexico. Id. 

  Cisneros reentered and was charged with a violation of 8 USC Sec. 1326. Id. The defense brought a due process challenge to the administrative proceeding. The district court held an evidentiary hearing, but ultimately denied the motion to dismiss the indictment. Id. at *5. After a bench trial, Cisneros appealed.

Issue(s): “Cisneros argues that [ICE Agent Jose] Linares’s advice violated her due process rights, on the ground that he improperly obtained an invalid waiver of her right to counsel.” Id. at *6.

Held: “We agree.” Id. 

“We hold that the ICE agent who conducted Cisneros's administrative removal proceeding violated her due process rights by telling her that an attorney would not have been able to help her when she was facially eligible for a U-visa, a form of hardship relief available to a person convicted of an aggravated felony. We further hold that Cisneros was prejudiced by the due process violation because it was plausible that Cisneros would have obtained a U-visa had she applied for one in 2010, notwithstanding the fact that she had already been placed in administrative removal proceedings . . . .” Id. at *1. 

“We hold that if an ICE agent erroneously advises an uncounseled alien in an administrative removal proceeding that an attorney will not be able to provide assistance, any waiver of the right to counsel based on that advice is invalid because it is not ‘considered and intelligent.’” Id. at *7.

Of Note: Did Agent Linares actually advise Cisneros that an attorney could not help her? The district court so assumed, but made no factual finding. Remand? The district judge has retired, and Cisneros is now in Mexico – making it tough for fact finding. So the Ninth thinks “it appropriate to decide the factual issue ourselves.” Id. at *8. 

This is a fascinating discussion, as Judge Fletcher considers discredited ICE Agent Jose Linares – an agent who had made false accusations, had (improperly) kept aliens' possessions in his safe, and had been demoted before the hearing. Id. *8.

(This is the caliber of ICE official who decides removal summary administrative removal proceedings, instead of Immigration Judges?)

How to Use: This due process win is good. This prejudice win is great. Judge Fletcher explains, “We hold . . . that an undocumented alien attacking an administrative removal order may argue that a due process violation that occurred during her removal proceedings was prejudicial if (a) she identifies a form of relief for which she was eligible to apply, notwithstanding her aggravated felony conviction, and (b) she establishes that it was ‘plausible’ that, but for the due process violation, she would have been permitted to apply for, and would have obtained, such relief.” Id. at *11. 

Very welcome new prejudice angle, for Section 1326(d) arguments.

                                   

For Further Reading: On the theme of that holiday spirit, here's a fitting quote: “I can't think of anything more important than to try to help as many people as you can. That is a big motivator for me. Sometimes the law is not very compassionate.” 

For a very good article on one of the Ninth’s biggest hearts, visit Judge Harry Pregerson, leaving the bench at 92, always followed his conscience, available here.

Image of the Honorable Judge William Fletcher from http://www.law2.byu.edu/news2/jurist-in-residence-judge-william-a-fletcher

Steven Kalar, Federal Public Defender ND Cal. Website at www.ndcalfpd.org

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United States v. DeCinces, No. 15-50033 (12-22-15)(Rawlinson, Graber, and concurrence by Watford).

The 9th reverses a district court's ruling precluding 404(b) evidence in an insider trading case.  The 'other acts" could show plan, knowledge, intent or lack of mistake.  The 9th had jurisdiction as it was a pretrial order that precluded evidence. Defendant's cross appeal on collateral issues related to the ruling was dismissed for lack of jurisdiction.  The 9th found the issues distinct.  Watford concurs, noting that the double jeopardy clause is not applicable here for the issues raised as to failure to state a claim.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/22/15-50033.pdf

Garcia v. Long, No. 13-57071 (12-21-15) (Bybee with Fisher and Foote, D.J.) 

The 9th affirms the district court's granting of habeas relief, even under AEDPA's deference, for a Miranda violation.  When the petitioner, asked by law enforcement, if he wanted to speak, said "no," it was plain and simple: no.  There was no ambiguity or need to clarify.  "no" means "no."

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/21/13-57071.pdf

Case o' The Week: Bad Forbidden, Good Forbidden - Lloyd, Lay Witnesses, and Expert Witness Disclosure

Forbidden Warrior.

Forbidden expert.

Bad films make good law.

United States v. Lloyd, 2015 WL 7873401 (9th Cir. Dec. 4, 2015), decision available here.

Players: Decision by visiting S.D. Texas DJ Lee Rosenthal, joined by Judges Berzon and Clifton. Hard-fought battle by CD Cal AFPD Kathryn Young, former CD Cal FPD Sean Kennedy, and others.

Facts: Lloyd and his co-D’s ran telemarketing “boiler rooms,” using false promises to solicit investments in movie productions (Like the classic “From Mexico with Love” and the fan favorite “Forbidden Warrior.”) Id. at *1. 

During the fraud trial, the government called witness “Agler;” a man who had worked in boiler rooms. Id. at *18. Agler opined about the information and knowledge that telemarketers have when they cold-call investors. Id. Although Agler’s opinions smacked of FRE 702 “expert” testimony, the government failed to provide the defense with pretrial expert notice.  Id. (citing Fed. R. Crim. P. 16(a)(1)(G)).   

Issue(s): “[Appellants] argue that Agler's testimony impermissibly opined on what the telemarketers who solicited and closed investments, including themselves, knew about what they were selling and about what the investors were doing and thinking. They argue that to the extent Agler expressed a lay opinion, he relied on speculation and hearsay, and to the extent he expressed an expert opinion based on specialized knowledge gained from working in boiler rooms, the government failed to give the notice required under Rule 702 of the Federal Rules of Evidence and Rule 16 of the Federal Rules of Criminal Procedure.” Id. at *20.

Held: “Under [FRE] 701, a lay witness may testify ‘in the form of an opinion’ if it is ‘(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge.’ . . . . Rule 701(a) contains a personal knowledge requirement. . . . In presenting lay opinions, the personal knowledge requirement may be met if the witness can demonstrate firsthand knowledge or observation. A lay witness's opinion testimony necessarily draws on the witness's own understanding, including a wealth of personal information, experience, and education, that cannot be placed before the jury. . . But a lay opinion witness ‘may not testify based on speculation, rely on hearsay or interpret unambiguous, clear statements . . . .” Id. at *20.

“Agler had extensive personal experience working as a telemarketer in boiler rooms soliciting and closing investments . . . . But his testimony that investors did not understand the risks, that all telemarketers knew of and took advantage of this ignorance, and that telemarketers knew that investors never made any money, was largely based on statements he heard from unidentified telemarketers and investors, well beyond his own personal experience with investors. Our cases make clear that Rule 701 prohibits opinions based on such a foundation. . . Id. at *20

"Agler's testimony was not admissible as lay opinion testimony under Rule 701.” Id. (quotations and citations omitted).

Of Note: The government first gives plain error a shot (unsuccessfully, thankfully). Id. at *19. The paragraph starting at *19 is worth a close read, as a reminder for the defense to object early and often. The Ninth finds the defense objections were preserved here – but a little more specificity would have helped.

How to Use: “But,” the government sputtered, “any error is harmless. Agler would have qualified as a FRE 702 expert.” Id. at *1. 

"Nyet" notes the Ninth, “No notice!” Id. at *21 (“The record does not present a basis to excuse the failure to provide the defense timely notice of Agler's Rule 702 expert testimony by holding it admissible as lay opinion testimony under Rule 701.”) 

Lloyd adds welcome bite to our arguments that the government can’t use experts that were not properly disclosed.

                                               

For Further Reading: The ND Ill. has a nice, sharp and clear district rule for civil expert disclosures. See rule here. 

Wouldn’t it be nice if district courts were equally persnickety about expert disclosures in criminal cases? It’s the same FRE 702, after all. 

Maybe Santa will bring us criminal district-wide expert disclosure rules in 2016?

"Forbidden Warrior” Movie poster from https://upload.wikimedia.org/wikipedia/en/6/69/Forbidden_Warrior.jpg

“Santa Clause Barrister" from http://www.reasonstobelieve.com/Merchant2/merchant.mvc?Screen=PROD&Product_Code=kac7317&Category_Code=fabriche

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

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