Saturday, May 27, 2017

Case o' The Week: Ninth Dodges Pot, Shot - Davies and Plea Agreement Collateral-Attack Waivers

  A non-cap habe raises execution issues, in a Section 2241 opinion.
  Davies v. Benov, 2017 WL 2125897(9th Cir. May 17, 2017), decision available here.

Players: Decision by Judge Gould, joined by Judges Wardlaw and Callahan.

Facts: Davies owned medical marijuana dispensaries in California, which he contended complies with state law. Id. at *1. He was charged federally in the ED Cal, and plead guilty to a five year term. Id. The plea agreement had a waiver provision that read, “Regardless of the sentence he receives, the defendant also gives up any right he may have to bring a postappeal attack on his conviction or his sentence. He specifically agrees not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking his conviction or sentence.” Id. A year into Davies’ term, Congress passed an appropriation rider. That rider prohibited the use of federal funds to prosecute offenses otherwise legal under state medical marijuana laws. Id. at *2. Davies filed a Section 2241 habeas petition, arguing that BOP’s use of federal funds to incarcerate him violated this appropriations rider. Id. The magistrate judge denied the petition, holding that the plea agreement waiver barred the challenge. Id.

Issue(s): “The sole question presented here is whether the plea agreement’s waiver provision clearly bars Davies from bringing his § 2241 petition, which challenges his continued incarceration based on the appropriations rider. “ Id. at *2.

Held:The waiver language included in Davies's plea agreement is broad and unambiguous, and we hold that it precludes Davies’s petition on the grounds he raised.” Id. at *2.

Of Note: Davies made an interesting, albeit unsuccessful, argument. The waiver language in this plea agreement prohibited an appeal of “any aspect of the sentence imposed in this case.” Id. at *3 (emphasis added). By contrast, the collateral-attack waiver provision did not have that “any aspect of his sentence” clause. Id.
  Davies argued that the collateral-attack waiver was less broad than the appellate waiver. It’s an – appealing – argument, given the old contra proferentem rule we learned in law school (a rule acknowledged by Judge Gould, who concedes that because the government drafted the agreement, “ambiguities are construed in favor of the defendant.” Id. at *2 (citing United States v. Charles, 581 F.3d 927, 931 (9th Cir. 2009).
  Unfortunately, the Ninth holds the waiver language is not ambiguous: “Despite differences in the language of the direct-appeal and collateral-attack waiver provisions, the collateral attack waiver provision states the scope of the waiver: Davies gives up any right to bring a post-appeal attack on his conviction or sentence. The scope of the collateral-attack waiver provision clearly covers his present challenge. Limitations on any right to attack his sentence encompasses challenges to the execution and conditions of his sentence, as his challenge is styled here, as well as to the legality of his sentence.” Id. at *3.

How to Use: What about inmates serving federal prison sentences for (medical) marijuana offenses, who pleaded open, or who were convicted after trial? Unlike Davies, they are unencumbered by these collateral-attack waivers.
  Judge Gould expressly reserves the question if the BOP can use federal funds to incarcerate these folks: “we need not reach and save for another day the issue of whether the expenditure of federal funds to incarcerate individuals who fully complied with state medical marijuana laws violates the appropriations rider.” Id. at *3. 
  Would make for an interesting § 2241 petition, for these inmates in federal prison.
For Further Reading: With any luck, Johnson warriors will be freeing another tranche of over-serving petitioners after a Dimaya victory next Tuesday. SCOTUS’s next opinion drop is May 30 at 9:30 EDT: opinions will be live-blogged here

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


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Sunday, May 21, 2017

Case o' The Week: Of Non-Disclose and Oreos - Liew, Brady, and FBI 302 Rough Notes

  Remarkably, exculpatory statements were somehow omitted in an FBI 302 (and the agent’s rough notes were never disclosed).
  Happily, the government now gets a second bite at the Brady apple.
United States v. Liew, 2017 WL 1753269 (9th Cir. May 5, 2017), decision available here.

Players: Decision by Judge Owens, joined by Judges Schroeder and Wardlaw. Nice Brady win for ND Cal stalwart Dennis Riordan in this NorCal case.

Facts: DuPont perfected a lucrative and (it claimed) secret process to create a type of pigment used in everything from paint to the filling of Oreo cookies. Id. at *2.
 China wanted this tech.
  Walter Liew worked with Chinese representatives to start a pigment plant there. Id. at *3. Liew hired a former DuPoint employee, “Spitler,” as a consultant. Id. at *3.
  Liew and Spitler spoke, and in a note documenting their conversation they worried the plant might fail, “even with the best technology and stolen prints.” Id. at *4. Liew, however, later claimed Spitler told him that, as far as DuPont was concerned, “[a]fter 5 years, you are a free man.” Id.
  DuPoint disagreed.
  After learning of the planned Chinese pigment plant, DuPoint sued Liew in federal court. Id. In his civil answer, Liew stated he and his company never “’wrongfully obtained or possess[ed] any’ DuPoint trade secrets.” Id. at *5.
  Liew was later indicted, and charged with obstruction (for his answer in the civil suit), and with economic espionage charges. Id. at *5. Spitler struck an apparent cooperation deal with the government, then committed suicide. Id. at *6.
  Before trial, the government produced a FBI 302 of Spitler’s meetings with the prosecution team. [Ed. note: not in the opinion, but reported in district court briefing, is the fact that Spitler met with FBI Special Agent Kevin Phelan, and others on the prosecution team, six times.] The government did not produce the Special Agent’s rough notes of the Spitler interviews. Id.
  Liew was convicted at trial.
  The defense then produced a declaration from Spitler’s attorney. Id. at *7. Spitler’s attorney reported Spitler’s exculpatory statements omitted from the FBI 302, including his denial that he was involved in a criminal conspiracy. Spitler had also revealed to the government that, after his retirement, DuPont had shipped him a box of documents that Spitler sold to Liew. Because DuPont had voluntarily relinquished those documents, Spitler explained in interviews with the government that he considered them valueless. Id. at *7.
  The defense moved for disclosure of the rough notes of the Spitler interviews. That motion was summarily denied. Id.

Issue(s): “Liew argues that the district court erred by not requiring the prosecution to disclose the rough notes of the FBI’s interviews with deceased co-conspirator Tim Spitler.” Id. at *15.

Held: While mere speculation about materials in the government’s files does not require a court to make the materials available for defense inspection . . . Liew had more than mere speculation -- he had the declaration of Spitler’s attorney . . . . In light of this declaration, defendants carried their initial burden of producing some evidence to support an inference that the government possessed or knew about material favorable to the defense and failed to disclose it. . . . 
  Although the errors and inconsistencies in the declaration provided by [Spitler’s attorney] cast some doubt on the declaration’s reliability, defendants’ burden was a low one, and the declaration sufficed to support an inference that the rough notes contained favorable material. Because the prosecution did not disclose the rough notes, it did not meet its burden of demonstrating that it satisfied its duty to disclose all favorable evidence known to it. Furthermore, if the rough notes referenced the statements that [Spitler’s attorney] averred Spitler made during the interviews, that material could be sufficient to undermine confidence in the verdict. . . . . 
  [W]e vacate the district court’s order denying defendants’ request for production of the rough notes and remand to the district court for in camera review of the material to determine whether disclosure of the notes might have affected the outcome of the trial.Id. at *15 (internal citations and quotations omitted).

Of Note: Does your civil client deny wrongdoing when answering in federal court? Be careful: the ND Cal USAO may later indict them for obstruction of justice.
  Judge Owens, thankfully, comes out the right way on this troubling charging stretch, id. at *14, but Liew’s discussion on civil responses and obstruction of justice should be a required read for civil counsel.

How to Use: Is the standard of review for this claim the deferential “abuse of discretion” standard, or the less demanding de novo standard? 
  In an interesting note, Judge Owens explains that – here, in the context of a new trial motion - it is de novo. See id. at *8 n.6. A welcome footnote worth saving for appellate folks.
Former AUSA Kathryn Haun
For Further Reading: (Former) AUSA Kathryn Haun is one potential candidate for the next United States Attorney for the Northern District of California. See article here
  Ms. Haun just gave a candid and revealing interview, defending Attorney General Sessions’ new policy on mandatory minimums. See KQED link here

Image of former AUSA Haun from 

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


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Thursday, May 18, 2017

Davies v. Benov, No. 15-17256 (5-17-17)(Gould w/Wardlaw & Callahan).  The petitioner operated medical marijuana dispensaries when he was federally charged with drug trafficking.  He entered into a plea for a 5 year sentence which included a waiver of collateral attacks.  A year into his imprisonment, Congress passed an appropriations rider that barred BOP from using funds to imprison him when his acts complied with state law.  Petitioner argues that the rider applies to him.  He seeks to avoid the waiver by arguing that it only bars attacks on his sentence; petitioner is not attacking his sentence but the expenditure of BOP funds. The 9th affirms the district court's dismissal.  The waiver, the 9th holds, is broad, and pertains to this challenge.

The decision is here:

Monday, May 15, 2017

US v. Olson, No. 15-30022 (5-15-17)(Fisher w/Paez; concurrence by Hurwitz).  To be convicted under misprison of a felony, the 9th holds that the defendant must know that: (1) the principal acted to satisfy the essential elements of the underlying felony offense; and (2) the defendant knew the conduct was a felony.  This knowledge requires that the defendant knew the offense was punishable by a term of imprisonment of more than a year or death.  In this conviction of misprison, the defendant was aware that the principal's offense -- submission of false statements to the USDA --was a felony.  Hurwitz, concurring, would leave the holding of requirement for another day and another case as it was not necessary to determine here.

The decision is here: