US v. Zhou, No. 14-50288 (9-27-16)(Graber w/Silverman; concurrence by Graber; dissent by Tashima).  The 9th affirmed restitution for fraud victims of a Target store in Colorado, although he only pled to the conviction covering fraud at Nordstrom stores in California.  The Mandatory Victims Restitution Act of 1996 allows restitution to victims of the offense. How can the Target victims be the victims of the offense of conviction, when the factual basis was for Nordstrom victims?

First, the review is plain error.  Second, the panel looked to the charge of unauthorized access devices, which covered the time frame of the Target fraud.  Although the factual basis was for Nordstrom, and took in the Nordstrom victims, the facts were sufficient to support the guilt of the charge. The charge then widened to include the Target victims.

Graber, concurring, criticized the 9th's doctrine of "pure question of law," which is a variation of plain error, but also distinct.  It allows the court to decide pure legal issues. Graber believes this runs counter to plain error, and Fed R Crim P 52(b).

Tashima dissents.  He argues that the Target victims fell outside of the offense of conviction.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/27/14-50288.pdf

Case o' The Week: Gov't Gobbles Second Bite of Argument Apple - Williams and Reasonable Suspicion for Searches

 Q: What’s does one call a government argument, raised for the first time on appeal?

  A: Waived. “More precise.”

   United States v. Williams, 2016 WL 5030343 (9th Cir. Sept. 20, 2016), decision available here.

Players: Decision by Judge Wallace, joined by Judge Kozinski and DJ Whaley.

The Honorable Judge Clifford Wallace

Hard fought appeal by D. Nev. AFPD Amy B. Cleary.

Facts: A named tipster called a police hotline and reported a suspected drug dealer, sleeping in a specific type of Ford in a particular area. Id. at *1. At around 4:40 a.m., the cops blocked the parked Ford and shined a light inside. Williams sat up, looked around, started the car, then put the car in reverse and then parked. Id. at *2. At the officers’ command, Williams got out of the car – and then ran. Id. He was caught and arrested: a pat search revealed crack and cash. Id. A search of the car revealed a gun. Id. 

  Williams was charged with federal gun and drug offenses. Id. He filed – and won – a suppression motion, and the government appealed.

Issue(s): “The government . . . argues that the district court erred in concluding that the officers lacked reasonable suspicion to conduct an investigatory stop.” Id. at *3.

Held: “Applying the principles articulated in White and Navarette, we hold that [the] officers . . . had reasonable suspicion to stop Williams based on the information they possessed and the tip’s reliability.” Id. at *3. “[T]he officers acted reasonably when they blocked in the driver with their police car, turned on their police lights, and one of the officers drew his gun.” Id. at *4.

Of Note: The heart of this case is tipsters, and their role in creating reasonable suspicion. Id. at *3. Judge Wallace employs two Supreme Court decisions to find reasonable suspicion here: Navarette v. California,134 S.Ct. 1683 (2014) (reliability of tips and reasonable suspicion), and Alabama v. White, 496 U.S. 325 (1990) (tips creating reasonable suspicion.) Id. at *3. 

  As with most things Fourth, Williams is a fact-bound inquiry. In this case, the call was from an identified tipster, the caller described the car’s make and location, the tipster made specific criminal allegations, Williams reacted suspiciously when the cops arrived, and it was a high-crime area. Id. at *4. 

  The Ninth decision upholding this stop rests on layers of supporting facts for the government. Don’t let an AUSA cite Williams as a blank check for tipster stops – the facts of the case are ripe for distinction.

How to Use: Reasonable suspicion for the initial stop was the first issue in the case: PC for the arrest, the second. Williams also argued that the cops lacked probable cause to arrest (and thus, search) him. Id. at *4. 

  For the first time, on appeal, the government argued that a Nevada “obstruction” statute created probable cause when Williams ran. Id. at *5. 

  There is, of course, “a ‘general rule” against entertaining arguments on appeal that were not presented or developed before the district court.” Id. at *5. Judge Wallace, however, notes that the government resisted the probable cause argument in the district court. The government’s new “Nevada statute” theory before the Ninth was, the Court assures us, just “a more precise argument on appeal.” Id. at *6. 

  This is an aggravating second bite of the apple for the government in this case, but store the decision away. It is a useful “sauce for the goose” citation for our own “more precise [defense] arguments” before the Ninth.

                                               

For Further Reading: At least the Williams tipster identified himself. In the 5-4 Navarette case, Justice Thomas tolerated reasonable suspicion developed from an anonymous call. 134 S.Ct. at 1688-89 (“Even assuming for present purposes that the 911 call was anonymous . . . we conclude that the call bore adequate indicia of reliability for the officer to credit the caller's account.”) For a vigorous critique of Navarette, see Whither Reasonable Suspicion: The Supreme Court’s Function Abandonment of the Reasonableness Requirement for Fourth Amendment Seizures (2016), available here, or on Westlaw at 53 Am. Crim. L. Rev. 349.

Image of the Honorable Judge Clifford Wallace from http://www.iclrs.org/content//events/presenters/4f0625e2d6476.jpg

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

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US v. Williams, No. 15-10008 (9-20-16)(Wallace w/Kozinski & Whaley, Sr. D.J.).

The 9th reversed the suppression of a search of crack cocaine and a firearm.  The 9th held that the officers had reasonable suspicion of the defendant from a tip, his actions, and possible offense (trespassing). The Gov't did not waive the argument that, after the initial stop for reasonable suspicion, probable cause for arrest was developed for violating a state statute (obstruction) that makes it unlawful not to flee and to give identity when suspected of an offense. The 9th upheld the officer's arrest of the defendant and the seizure of crack and a firearm.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-10008.pdf

Case o' The Week: It Pays to Discover - Soto-Zuniga and Government Discovery Obligations

Q: What victory could be sweeter than a Ninth Circuit reversal on a discovery motion?

 A: A Ninth reversal on two discovery motions!

  United States v. Soto-Zuniga, 2016 WL 4932319 (9th Cir. Sept. 18, 2016), decision available here.

Players: Decision by Judge Gould, joined by Judges Kozinski and W. Fletcher.

Big win for AFD Paul Barr, Federal Defenders of San Diego, Inc.

Hon. Judge Ronald Gould

Facts: Soto-Zuniga was charged with possession with intent to distribute meth, after a border car search. Slip Op. at 4. [Ed. Note: Westlaw pin cites (annoyingly) missing].

   Soto-Zuniga moved to suppress, alleging the search was unconstitutional and requesting discovery of the checkpoint’s arrest and search statistics. Id. He argued that the checkpoint was being used as a pretext to search for controlled substances, not to control immigration. Id. at 8. 

  The discovery and suppression motions were denied: he was convicted. Id. at 1.

Issue(s): “We first address Soto-Zuniga's argument that the district court abused its discretion in denying his motion for discovery of the San Clemente checkpoint search and arrest statistics. He contends that this evidence is necessary to determine whether the checkpoint itself is constitutional.” Id. at 12.

Held: “We agree that the district court abused its discretion in denying discovery that could have revealed an unconstitutional seizure and led to the suppression of the evidence that illicit drugs were found in Soto-Zuniga's car.” Id. 

  “If the checkpoint’s primary purpose is to detect evidence of drug trafficking, then the initial seizure of Soto-Zuniga’s car and person offended the Fourth Amendment and the drug evidence recovered from his car must be excluded as fruit of the poisonous tree . . . . It is on this issue that the requested discovery is pertinent.” Id. at 14. 

  “Because the primary purpose of the San Clemente checkpoint was placed squarely at issue by Soto-Zuniga's motion to suppress, defense counsel should have been allowed reasonable discovery relating to this primary purpose. After that discovery, and with all material evidence on the table, the district court would have been in a superior position to assess and decide the motion to suppress.” Id. at 18. “We conclude that the district court abused its discretion by denying this discovery.” Id.

Of Note: The key holding of Soto-Zuniga is that the Supreme Court’s selective prosecution decision, Armstrong, does not preclude Federal Rule of Criminal Procedure Rule 16(a)(1)(E) discovery related to the constitutionality of a search or seizure. Id. at 16. As Judge Gould explains, “In our view, the holding of Armstrong applies to the narrow issue of discovery in selective-prosecution cases.” Id. This holding rebuffs the government’s attempt to cabin suppression discovery into Armstrong’s narrow confines: a very important win. Id. at 17.

How to Use: Overshadowed by the big checkpoint discovery issue is an equally valuable discussion on discovery of information related to the defense theory. Soto-Zuniga’s trial theory was that teenagers who had been given a lift left the meth in the car. Id. at 19. The defense had unsuccessfully moved for discovery of the government’s investigation of the teens and a smuggler associated with them. Id. at 19.

  In a thoughtful discussion, Judge Gould emphasizes that the defense is entitled to information “material to preparing the defense.” This is not limited to information that is admissible, it is information that have “helped to prepare a defense.” Id. at 20. The Ninth reverses the denial of the discovery motion. Id. at 21.

  While Judge Gould hears the government’s beef that the investigative docs were of “sensitive nature,” the Ninth stands firm: the defense “interest in government materials that are pertinent to his defense takes precedence.” Id. at 21. Soto-Zuniga’s discussion the defense right to discovery merits a close read and heavy citation in our motions to compel discovery.

                                               

Hon. District Judge Lucy Koh

For Further Reading: Remember ND Cal District Judge Koh’s terrific and historic cell-tracking decision? See blog entry here.  

  Apparently, so does Senator Coryn, R-Texas. See article here.  

   Judge Koh’s Ninth confirmation vote cleared the Senate Judiciary Committee last Thursday (but is not yet scheduled for a Senate vote).  
  NorCal is knocking wood on her behalf.

Image of the Honorable Judge Ronald Gould from http://www.advocate.com/sites/advocate.com/files/2014/09/03/3judgesx400.jpg

Image of the Honorable District Judge Lucy Koh from https://upload.wikimedia.org/wikipedia/commons/4/43/20151027_Hon._Lucy_Koh_ASA_9355_43_19_pp.jpg

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

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