US v. Niebla-Torres, No. 10261 (1-31-17)(Christen w/Fletcher & Friedland).  "Corpus delicti" requires that a conviction rest on more than a defendant's uncorroborated account.  Here, in a "scout" case (a lookout on the Pozo Redondo Mountain in southern Arizona), the defendant gave a statement to the agent supposedly recounting what he was doing in guiding marijuana backpackers.  He had camouflage, binoculars, cell phones, batteries and so forth.  Subsequently, the defendant argued that he was pressured into the statement.  He was convicted at a bench trial.

On appeal, the defendant argued that the government failed to present corroborating evidence on the core agreement:  Under the corpus delicti doctrine, the government first must introduce sufficient evidence that the conduct at the core of the criminal offense occurred; and second, independent evidence must be introduced to establish the trustworthiness of the admissions.  The evidence introduced need not be independently sufficient to convict the defendant.  Here, there was sufficient independent evidence introduced to support a conviction for possession with intent to distribute.  The 9th affirmed.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/31/15-10261.pdf

US v. Laursen, No. 14-30244 (1-30-17)(Rawlinson & Callahan; concurrence by Hawkins).  This is a production and possession of child pornography case.  The 9th affirms convictions for "use" of a minor, despite the fact that the 45 year old defendant had a legal sexual relationship with the 16-year old minor under state law.  The taking of pornographic photos of the 16 year old still violated federal and state law.  The 9th acknowledged there was no physical coercion, the relationship was consensual, and the photos were not shared or transferred to others.  The 9th though held that taking such photos was "use," and Congress can hold such photos to be child porn. 

Concurring, Hawkins would impose a narrower test: the defendant had to exploit or take an unfair advantage of the minor.  Otherwise, Hawkins fears that otherwise every sexually explicit photo snapped by 17 year olds in a relationship could be subject to prosecution, and the 15 year mandatory minimum.  Hawkins, under the facts, would find that the defendant had exploited the minor with his "mentorship," drugs, and transportation.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/30/14-30244.pdf

Case o' The Week: The Slings and Arrows of Outrageous Fortune - Simon and Guideline Sentencing of Hobbs Act conspiracies

2B, or Not 2B?

 That is the question.

United States v. Simon, 2016 Westlaw 6610233 (9th Cir. Nov. 9, 2017)(mem.)

 Ord. granting en banc review, No. 15-10203, Jan. 27, 2017, order available here.

Players: Order granting call for en banc review by Chief Judge Thomas. Underlying mem dispo by Judges Graber and Murguia, and District Judge O’Connell.

Hon. Judge Graber

Facts: Simon and co-Ds conspired with a CI to rob drugs from a delivery van. Id. at *1. Simon, arrested on route to the robbery, had a gun. Id.

  He was convicted after trial of § 1951, § 922(g), § 371, and § 659 (Hobbs Act conspiracy, felon in possession, conspiracy to commit theft in interstate shipment, and theft). Id. 

 Simon was sentenced to 192 months. Id. The district court applied U.S.S.G. § 2X1.1 – the “conspiracy” cross-reference guideline. Id. at *2; see also Guideline § 2X1.1 here. The court used this cross-reference to apply several adjustments that increased the guideline range. Id.

Issue(s): The e.b. order is enigmatic on the basis for this sua sponte call.

Hon. Judge Murguia

The oral argument, however, gives us a good clue, as the panel struggled with whether or how to apply U.S.S.G. § 2X1.1 See here.

  In the mem dispo, the panel describes the issue thus: “Simon argues that the district court committed a procedural error at sentencing by applying U.S.S.G. § 2X1.1. In Simon’s view, the court was required to apply U.S.S.G. § 2B3.1. The district court applied several enhancements through operation of § 2X1.1 that likely would not have applied under § 2B3.1.” Id. at *2.

  During the oral argument, Judge Graber describes the issue as whether the selection of the controlling guideline for Hobbs Act conspiracies to commit robbery should be “based on the statute, or based on the guideline.” See video here, at 23:26.

Hon. District Judge O'Connell

Held (by Panel): “We defer ruling on that issue.” Id. at *2.

Of Note: During oral argument, Judge Graber flagged a “disconnect” in the Ninth’s “own caselaw” on the question. See video of argument here, at 11:44. The panel asked about United States v. Temkin, 797 F.3d 682, 692-93 (9th Cir. 2015), a decision which tackled § 2X1.1 in the context of solicitation to commit murder.

  Also discussed during argument was the Second Circuit’s decision in United States v. Amato, 46 F.3d 1255 (2nd Cir. 1995), which concluded that § 2X1.1 was appropriate for a Hobbs Act conspiracy (instead of § 2B3.1, as urged by the defense here).

  (Interestingly, the argument revealed that Guideline Commission staff advised Probation that § 2X1.1 was the appropriate guideline – and then gave the opposite advice to defense counsel in a different call!)

  To hazard a guess, the issue for the en banc court will be how a district court determines the correct guideline for Hobbs Act conspiracies to commit robbery: by starting with the statute's terms, or by turning to the guidelines? It is a "choice of guidelines" or "how to apply the guidelines" case.

   Much is at stake in the approach – Simon’s counsel reported that the guideline range for his client nearly doubled when the district judge turned to § 2X1.1 in this case.

How to Use: Flag and fight, for Hobbs Act “conspiracy to commit robbery” sentencings. Our position? Section 2B3.1 is the correct guideline.

                                               

For Further Reading: We’ve previously reported the “Safe Schools” litigation in NorCal, where thirty-seven black defendants (and only black defendants) were targeted in a series of federal drug busts near schools in San Francisco's Tenderloin district. See blog entry here. The office of the Federal Public Defender, Northern District of California, filed motions seeking discovery relating to race-based law enforcement actions.

  This hard-fought litigation ultimately resulted in one of the most comprehensive Armstrong discovery orders ever delivered. See the Honorable District Judge Edward Chen’s order here.

  (The government, interestingly, did not appeal this order).

  After the order, the parties spent seven months wrestling with the SF Police Department for the discovery at issue. The U.S. Attorney’s office then filed a motion to dismiss the cases – with prejudice. The government declined to explain why it moved to dismiss the cases.

  District Judge Edward Chen signed the government’s motion to dismiss on January 25, 2017. See order here.

  A remarkable chapter in SF history, and a stunning victory for AFPD Galia Amram and the huge FPD team who collaborated on this litigation. Most importantly, it is a vindication of the enormous courage of our clients, who risked high sentencing exposures to continue the fight against racially-targeted law enforcement. See article here.

  The transcript of the hearing regarding dismissal – reflecting Judge Chen’s thoughtful remarks and serious questions about this law enforcement effort– has been ordered, and will be posted on www.ndcalfpd.org when completed.

  A proud day for indigent criminal defense, though a somber reminder of the many fights that remain.

Image of Hamlet from http://cdn.edgecast.steamstatic.com/steam/apps/324710/header.jpg?t=1479439673

Images of the Honorable Judges Graber, Murguia, and District Judge O’Connell from https://www.youtube.com/watch?v=TRmeQcQMQZg

Image of “Greetings from the Tenderloin”  from https://braidmission.org/wp-content/uploads/2016/07/tenderloin_.jpg

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

.

.

US v. Joey, No. 15-10096 (1-19-17)(Ikuta w/Thomas & Bea).  Editorial note: This is an Az FPD case).  This concerns whether there was a procedural error in sentencing.  The error alleged was double counting: that a court should not calculate a Guidelines sentence under 2244(a)(5) (abusive sexual contact) using the Guideline for a 2260 conviction (sex offense against a minor while having to register). To do so, argues the defendant, would punish the same conduct as the 2260 conviction. The 9th holds there is no procedural error. A court is not precluded from using the 4B1.5 Guideline to calculate the offense for 2260.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/19/15-10096.pdf

Case o' The Week: Double Trouble - Joey and Double Counting in Sex Offenses

 Courts can punish a defendant for committing a new crime, after a previous crime that lead to sex registration.

  Courts can punish a defendant for committing a new crime, after a previous crime that lead to sex registration.

   (Double vision maybe: double counting, no).

United States v. Roy Red Joey, 2017 Westlaw 218029 (9th Cir. Jan. 19, 2017), decision available here.

 Players: Decision by Judge Ikuta, joined by Chief Judge Thomas and Judge Bea. Hard fought appeal by D. Arizona AFPD Dan Kaplan.

Facts: Joey was convicted after trial of two counts of abusive sexual contact, in violation of 18 U.S.C. § 2244(a)(5), and two counts of committing a felony with a minor while required to register as a sex offender, under 18 U.S.C. § 2260A. Id. at *1.

  At sentencing, the district court used USSG § 4B1.5 for the § 2244(a) counts – even though Joey had been convicted under § 2260A, which (the defense) contended punishes the same conduct. Id.

  When simplified, this complicated calculation worked as follows: for the two § 2244(a) counts, the sentence was increased to offense level 37 under § 4B1.5 because Joey had been previously convicted of a covered sex crime. Id. at *2. For the § 2260A counts, the court tacked on a decade apiece – required by statute – because the substantive crimes happened while Joey was required to register as a sex offender. Id. at *3.

  The final sentence imposed was a pair of life sentences (imposed concurrently), plus a pair of concurrent ten-year sentences running after – well, running after the life terms. Id. at *3.

  Joey timely objected to the guideline calculation. Id. at *3.

Issue(s): “[A]ccording to Joey, the district court violated the principle against double counting in applying the Guidelines.” Id. at *1. 

  “According to Joey, the district court made a procedural error in applying § 4B1.5 for two reasons: (1) § 2A3.6, and in particular Application Note 3 of that provision, precludes the application of § 4B1.5, and (2) applying § 4B1.5 in determining Joey's sentence under § 2244(a) (5) when he was also being sentenced under § 2260A violated the principle against double counting under the Guidelines.” Id. at *3.

Held: “Because we cannot infer that the Sentencing Commission intended to preclude a § 4B1.5 determination for a § 2244(a)(5) offense when the defendant has also been convicted under § 2260A, we conclude that the district court did not commit a procedural error in calculating the Guidelines sentencing range, and we affirm.” Id. at *1 (fn. omitted).

Of Note: We know of the double-counting bar from the (good) gun rule: Probation can’t twice-hit our clients with the “used . . . in connection with another felony offense” + 4 OL specific offense adjustment in the firearm guideline, and with the mand-mins required by § 924(c). In fact, Judge Ikuta discusses that very example in Joey. Id. at *4.

  Unfortunately, Judge Ikuta also describes what is effectively an inverse rule of lenity: guideline double-counting is o.k, unless expressly prohibited by the Commission. Id. That familiar double-counting ban for gun cases happens to be one of those expressly-barred examples. Id.

  Here, by contrast, Judge Ikuta concludes that the Commission intended to allow cumulative punishment – particularly because § 4B1.5’s increase is tied to a prior sex crime conviction, while § 2260A is tied to a new sex offense while a sex registrant. “Distinct penological goals,” assures the Court. (Though if you’re familiar with guideline sausage-making, this quirk looks suspiciously like a tragic Commission oversight.)

How to Use: It ain’t double counting, assures the Court. But it will feel that way to Joey, who will serve a life sentence (twice!) for the bump for the sex crime, plus a brace of decades for the registration offense. This is a dangerous case: a sex offender with a prior is almost inevitably a sex registrant, so the impact of Joey is a de facto (and dramatic) increase in our clients’ sentencing ranges. If a § 2260A offense is alleged, slog through Joey’s guideline calcs: the client’s exposure is likely higher than you think.  

                                               

For Further Reading: Last week we asked “whither the Ninth, with four new Trump appointees?” This week we ask, “wither the Ninth with a Republican Congress?”

  Asunder, perhaps.

  For a troubling article on the resuscitation of efforts to split the Ninth Circuit, see, GOP Eyes New Push to Break Up California Court, available here. 

Image of “Double Count” from https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhzDE2Xe1Gd49lGzKNKnzzsRh51Dr6lU3MUh_b8KmUxV6sEE99dnhiBq9eFdB-McoWQq1QSRRqgcFjC1WiZrYg1OyF6ksB5YpLtZoJp_ErSJ_bj94_2AlFKucRrr-rn-fKV1iu6/s320/54472_double_count_wharton01f.png

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

.