US v. Ocampo-Estrada, No. 15-50471 (8-29-17)(Ebel w/M. Smith & N. Smith). The 9th affirms a conspiracy conviction but remands for resentencing. The 9th finds no abuse of discretion in denying the defendant's requested buyer-seller instruction because the evidence was insufficient to support such a theory of the defense.

The enhanced sentence under 851, due to a prior drug conviction, was vacated. The 9th holds that while California Health and Safety code 11378 is a divisible statute, which allows a modified categorical approach, the government failed to actually prove the defendant pled guilty to a drug charge that met the definition of a federal drug charge.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/29/15-50471.pdf

US v. Mercado-Moreno, No. 15-10545 (8-28-17)(Tallman, Ikuta, & Oliver). This case concerns a district court's quantity findings when deciding a reduction of sentence pursuant to a retroactive Guideline amendment.  In this instance, the 9th found no error in the second district court concluding that the retroactive amendment did not apply as the first court had determined that the amount of meth for which the defendant was responsible did not lower his guidelines.  Concerning findings, the 9th holds "that when deciding a 3582(c)(2) motion, a district court may supplement the original court's quantity findings only when supplemental findings are necessary to determine the defendant's eligibility for sentence reduction in light of the retroactive Guideline." Further, "a district court has broad discretion in how to adjudicate 3582(c)(2) proceedings, including whether to hold a hearing when making supplemental findings of drug quantity." (5)

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/28/15-10545.pdf

1. In re Zermeno-Gomez, No. 17-71867 (8-25-17)(Order from Goodwin, Kozinski, & Berzon).  Note:  This is an Az FPD case.  The 9th "unequivocally stated that a published opinion constitutes binding authority and must be followed unless and until it is overruled by a body competent to do so."

It is not every day that a writ of mandamus orders a district court to comply with an appellate decision.  This was the situation here, where the Az district court considered the recent Sanchez-Gomez decision not binding precedent as the mandate had yet to issue.  Sanchez-Gomez concerned the practice of the shackling of defendants in Cal S; there, the 9th held that before a defendant is shackled, the district court must make an individualized decision as to shackling, and that shackles "are the least restrictive means for maintaining security and order."

The Az court sought not to comply, reasoning that the Sanchez-Gomez mandate has not issued.  The Az FPD took the issue up on mandamus, and sought an injunction.  The 9th enjoined the practice.  It now issues an order granting mandamus relief.  The Az court must follow Sanchez-Gomez.  Remove the shackles!

Congrats to Dan Kaplan, AFPD, for the win.  (And, congrats again to the Fed Defenders in Cal S for Sanchez-Gomez).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/25/17-71867.pdf

2.  US v. Walter-Eze, No. 15-50315 (8-25-17)(Amon w/Thomas; concurrence by Nguyen).  In this heath care fraud case, the 9th affirmed the conviction and sentence.  The 9th considered whether a court's threat to make counsel pay for costs of witnesses and jurors to obtain a continuance constituted a conflict and rendered representation ineffective.  The 9th assumed, but did not decide, that Cuyler v. Sullivan, 446 US 335 (1980) applied to pecuniary conflicts.  Cuyler finds prejudice upon a showing of actual conflict.  Cuyler was not controlling though because the pecuniary penalty of payment was present at one decision that impacted client, after other continuances.  The conflict did not taint the entire representation.

The 9th also held that the court's giving of a "deliberate ignorance" instruction after the defense had given closing argument, but before the gov't's rebuttal closing, was not an abuse of discretion.  The defense, in closing, mounted a "she was naive" defense to her actions.  Since there was evidence for deliberate ignorance, defendant's rights were not deprived, even if the instruction was given after defense argument.

The 9th found no error in the calculation of loss.

Nguyen's concurrence was in the judgment.  She would hold there was no "actual conflict" and that Cuyler v. Sullivan's presumed prejudice should not be extended. The defendant could not show prejudice.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/25/15-50315.pdf

3.  US v. Robinson, No. 16-30096 (8-25-17)(Bea w/McKeown & N. Smith). The 9th concludes that the Washington crime of second degree assault is not a "crime of violence" within USSG 2K2.1(922(g)(1) felon in possession). The 9th vacates the sentence and remands.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/25/16-30096.pdf

Case o' The Week: Ninth, Conflicted - Walter-Eze and "Actual" Conflicts of Interest

Actual conflict = actual presumed prejudice?

Actually, not this time.  

United States v. Sylvia Ogbenyeanu Walter-Eze, 2017 WL 3648511 (9th Cir. Aug. 25, 2017), decision available here.

Players: Decision by visiting D NY DJ Amon, joined by CJ Thomas. Concurrence (only in judgement) by Judge Nguyen.

Facts: Walter-Eze was charged with health care fraud. Id. at *2. Court-appointed counsel received three trial continuances. Id.

  Two weeks before trial, retained counsel appeared. Id. The district court allowed the substitution after receiving commitments to proceed on an agreed-upon trial date. Id. Nonetheless, on the first day of trial, counsel filed an emergency motion to continue, explaining they were not prepared. Id. at *3.

   The court agreed to continue if counsel agreed to pay witness and jury fees. Id. Defense counsel worried that this might get reported to the California State Bar, so agreed to proceed to trial. Id.

   On appeal, Walter-Eze chronicled defense counsel’s failure to review government exhibits, failure to prepare jury instructions, complete a PowerPoint presentation in time for closing, failure to secure attendance of defense witnesses, or give the government a timely list of witnesses or experts. Id. at *10.

  Walter-Eze was convicted and sentenced to ninety-seven months. Id.

Issue(s): “Walter-Eze raises challenges to her conviction . . . [on the ground that] a conflict of interest created by the district court when it conditioned an adjournment on counsel’s paying jury costs and witness fees violated her Sixth Amendment right to counsel.” Id. at *2.

Held: “[F]or the purposes of Sullivan’s presumption of prejudice, we hold that under the circumstances present here, both the threat of fees and the threat of potential sanctions created a conflict of interest that adversely affected counsel’s performance.” Id. at *6.

  “In this case, the conflict was concretely manifest in real time, as Darden was called upon to choose between being fined and potentially facing a bar investigation or going to trial even though he and his co-counsel repeatedly indicated on the record that they were unprepared. For this reason, the government is wrong to assert that Darden was faced with only a ‘possible’ conflict. In fact, the existence and impact of the conflict could not have been clearer.” Id. at *7.

  “[U]nder the facts of this case, Walter-Eze must show that she was prejudiced by this actual conflict, and because she is unable to do so, we do not disturb the verdict.” Id. at *8.

Of Note: In the 1980 Sullivan decision, the Supreme Court presumed prejudice when defense counsel had an actual conflict – thereby avoiding the prejudice requirements of “normal” Strickland challenges. The real issue in Walter-Eze is whether the Ninth will presume prejudice after it finds an “actual conflict” on these particular facts.

  In an important (albeit confusing) holding, DJ Amon relies on the 2002 Mickens Supreme Court decision and concludes that – despite a clear finding of an “actual conflict” – prejudice will not be presumed in this case. Id. at *5.

  Judge Nguyen doesn’t understand this analysis: in her concurrence, she questions how the majority finds an actual conflict that does not trigger the presumption of prejudice. Id. at *18.

  Practically speaking, the Walter-Eze decision may effectively limit “presumed prejudice” to cases where defense counsel represents multiple clients in the same case. However, as Judge Nguyen complains, this outcome is a fact-entangled “rule” that seems ripe for further exploration.

How to Use: Whatever its shortcomings, Walter-Eze is an exhaustive discussion of conflicts. Id. at *5 -*7. Conflicts are a fuzzy field – at a minimum, the opinion is a helpful compilation of authority.

                                        

For Further Reading: Can you avoid a Ninth Circuit decision, just because mandate has been stayed? No – and neither can judges. As the Ninth just concluded, “Notwithstanding this high threshold, petitioners have demonstrated that the judges within the District of Arizona who found that Sanchez-Gomez was not binding on them committed clear error.” See Ord. here. 

  A remarkable win in the righteous shackling saga – congrats to D. Az. AFPD Dan Kaplan.

Image of “Conflict of Interest” from http://freedomradio91.com/wp-content/uploads/2016/05/Article-Conflict-of-Interest.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website available here.

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United States v. Brito, No. 15-30229 (Fletcher with Fisher; dissent by McKeown) --- The panel reversed the denial of a motion for sentence reduction under 18 U.S.C. § 3582(c)(2) based on a retroactive application of Amendment 782 (the "drugs minus two" amendment), holding that the district court was allowed to account for an adjustment to the original sentence given to account for time spent in state custody that would not be credited toward the federal sentence as presentence incarceration credit.

The defendant pleaded guilty to a drug trafficking crime in federal court.  That criminal conduct also led to a revocation of supervision by a state court, for which the defendant spent four months in custody before being sentenced in federal court.  As a result, BOP wouldn't credit the defendant with those four months, so the federal judge subtracted four months from the sentence he would otherwise have imposed in order to make the total term of imprisonment a reasonable sentence.  In the wake of Amendment 782, the defendant asked for a sentence reduction to a sentence that is four months below the Guidelines range that applied after Amendment 782 (which the Commission made retroactive).  The district court denied the reduction because in its view U.S.S.G. § 1B1.10 did not permit a reduction below the bottom of the new Guidelines range.

A divided panel of the Ninth Circuit reversed, holding that the district court could carry over the four-month adjustment when awarding a sentence reduction under Amendment 782.  The "term of imprisonment" to which the defendant had been originally sentenced, see 18 U.S.C. § 3583(c)(2), included this four-month adjustment.  Under United States v. Drake, 49 F.3d 1438 (9th Cir. 1995), that four-month period was already part of the federal sentence.  Thus it could remain part of the sentence when a reduction based on Amendment 782 was granted.  Furthermore, carrying over this four-month period would not result in a windfall to the defendant; the reduction was awarded for reasons unrelated to the drug quantity (the basis for the Amendment 782 sentence reduction).

Judge McKeown did not believe that Drake's reasoning applied, and that the "term of imprisonment" mentioned in § 3582(c)(2) and § 1B1.10 did not account for the adjustment awarded because BOP would not award presentence incarceration credit.

Kudos to Steve Sady and Liz Daily of the Portland FPD office.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/22/15-30229.pdf

Mariaelena v. Sessions, No. 14-72003 (Graber with Silverman; dissent from Tashima) --- The Ninth Circuit denied a petition for review of an order of the Board of Immigration Appeals, holding that the petitioner had been convicted of a "controlled substances offense" under Cal. Penal Code § 182(a)(1), and thus was ineligible for cancellation of removal.

The petitioner was convicted of, among other crimes, conspiracy to commit a crime, in violation of Cal. Penal Code § 182(a)(1), specifically conspiracy to sell and transport drugs, in violation of Cal. Health & Safety Code § 11352.  Applying the framework from the recent en banc decision in United States v. Martinez-Lopez, No. 14-50014, the court held that § 182(a)(1) was overbroad because it penalized conspiracy to commit any crime, not just a drug trafficking offense.  The court also held that § 182(a)(1) was divisible because the California Supreme Court had held that a jury had to be unanimous as to the target crime of the conspiracy.  Thus the court held that the modified categorical approach was available, and that was where the panel divided. 

Under Martinez-Lopez, the modified categorical approach is available to determine if the type of drug actually involved in the conspiracy involved in the petitioner's conviction was on a federal schedule.  Here, however, the judicially noticeable documents did not reveal the factual basis of the petitioner's guilty plea, and thus the record was inconclusive as to whether the conviction was for a "controlled substances offense."  Because the petitioner bears the burden of proof of eligibility for cancellation of removal, she would lose under Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc).  The petitioner argued that Young was irreconcilable with Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), and thus had been implicitly overruled.  The panel majority disagreed, because Moncrieffe was about removal, as to which the government bears the burden of proof.  There was nothing "clearly irreconcilable" about an alien winning on an issue where the government bears the burden of proof but losing on an issue as to which she bears the burden of proof.  Moreover, Moncrieffe was about the categorical approach, whereas Young was about the modified categorical approach, where the burden of proof matters.

Judge Tashima dissented, explaining that he believed Moncrieffe to be irreconcilable with Young.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/23/14-72003.pdf

US v. Castillo-Mendez, No. 15-50273 (8-21-17)(Paez w/Reinhardt & Tashima). The 9th reverses an attempted illegal reentry conviction and remands for a new trial due to an erroneous supplemental jury instruction on the requisite mental state.  Specifically, the defendant raised an "official restraint" defense, arguing that he only came across the border because of fear that smugglers, who were watching, would harm him.  He intended to turn himself in.  The government presented evidence that he was actually hiding.  The jury asked "what the definition of official restraint was?" The court then defined it and what it meant.  This was error.  The court should have explained that the government must prove specific intent to enter free from official restraint.  If the jury then asks for clarification, the court should explain that official restraint is only relevant as part of the defendant's mens rea, and defined from the attempted reentry cases.  The definition could read: "you must find that the defendant had the specific intent to enter free from official restraint, which means to enter without being detected, apprehended, or prevented from going at large within the United States and mixing with then population." (p. 19)

This opinion presents a good overview of the "official restraint" doctrine, and the distinction between "being found in" and "attempted to reenter."

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/21/15-50273.pdf

 

Case o' The Week: A Touch of Evil on Ninth's Mind - Hernandez and Mens Rea + Actus Reus Match

 Bad mind, wrong crime?

 No time.

 United States v. Lucio Hernandez, 859 F.3d 817(9th Cir. June 15, 2017), decision available here.

Players: Per curiam decision with Judges Shroeder and Bybee, and Chief D.J. William Smith. 

  Admirable win for Deputy Federal Public Defender Alexandra Yates, Central District of California.

Facts: Hernandez drove from Arizona to California to transfer title on a car. Id. at 819. In Arizona, he (legally) purchased multiple weapons at a gun show, without any waiting period (things prohibited in California). Id. He listed Arizona as his current residence on the ATF form, though he lived in California. Id. 

  When the guns were later found by California cops in the possession of others, the ATF got a search warrant. Id. No Arizona guns were found in the search: some had been stolen, Hernandez explained, others buried in the desert. Id. 

  He was indicted with illegal transportation of firearms into his state of residence, in violation of 18 U.S.C. § 922(a)(3). Id. at 820. 

  At the government’s urging, the court gave an instruction based on Bryan, 524 U.S. 184 (1998) that may have permitted the jury to find Hernandez guilty “even if he did not know that his act of transporting guns into California was illegal.” Id. “The court rejected an instruction that would have connected the required willfulness to the act of transporting the guns into California.” Id. 

  During trial, the government introduced evidence about “straw purchasers,” and revealed several of the guns were recovered from others by police. Id. The government argued this evidence showed Hernandez’s “bad purpose;”the jury found Hernandez guilty.

Issue(s): “In order to convict Hernandez of this crime, the government was required to prove that his violation was ‘willful,’ i.e., that the defendant acted with knowledge that the charged conduct (transporting the firearms into his state of residence) was unlawful. Hernandez argues on appeal that the evidence was insufficient to prove that the specifically charged conduct was done ‘willfully.’ Moreover, Hernandez contends that because the district court allowed the government to introduce evidence of other (uncharged) criminal acts allegedly committed by Hernandez in connection with the firearms at issue, combined with a broad interpretation of the willfulness instruction contemplated by Bryan . . . ., the jury may have convicted him without finding the requisite level of culpability.” Id. at 819.

Held: “[W]e agree. We . . . reverse and remand for a new trial.” Id. at 819. “We conclude that, given the district court's broad jury instruction and the government’s theory of the case, it is not clear beyond a reasonable doubt that the jury actually found that Hernandez had willfully committed the charged conduct.” Id. at 821. “We hold that the broad jury instruction, combined with the evidence of the commission of later crimes and the government's argument to the jury, resulted in significant prejudice to Hernandez.” Id. at 824.

Of Note: This prosecution went awry when the district court rejected a defense instruction that would have required Hernandez to know his conduct was unlawful, and that he intended to disobey the law when he transported firearms purchased in Arizona to California. Id. at 823. Without that “concurrence of an evil-meaning mind with an evil-doing hand”, id. at 823, the jury could have convicted Hernandez for being an arms trafficker. As Hernandez helpfully observes, “It is a longstanding precept of the common law that a person cannot be convicted of one crime on the basis of an intent to commit another.” Id. at 823. 

  A rare and welcome mens rea win – particularly involving the comparatively low “willfulness” mental state.  

How to Use: Remember back in CrimLaw when we were taught that a crime required a match between the mens rea and charged actus reus? 

  Sometimes it feels AUSAs skipped that class. 

  Hernandez is a clean and emphatic endorsement of the proposition that the government has to prove more than intent to commit some crime or another -- there has to be intent to commit the crime charged. Id. at 823. Fair to assume Hernandez was up to various unlawful shenanigans with guns, which makes the Ninth's strict focus on the charged offense particularly potent (and per curiam to boot!). 

                                               

For Further Reading: After almost eighteen years on the Ninth, the Honorable Judge Richard Tallman is taking senior status. See Press Release here. 

  Judge Tallman replaced Judge Betty Fletcher, and will himself be replaced by one of the (now-five) Trump nominees for the Ninth.

  When will those shoes drop? Depends if Dem Senators are feeling blue (slips).  See article on nominations here.  

Image of “evil hand” t-shirt from https://rlv.zcache.com/warning_i_have_an_evil_hand_that_has_a_mind_t_shirt-recd06010b5eb4765937db6a9aadf3b81_k2gr0_324.jpg

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

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Case o' the Week: A Remarkable Feet (Ninth Rejects Podiatrist Qui Tam) - Van Dyck / Smith, Qui Tam, and Criminal Forfeiture

 No foot in the door for Relators.

United States v. Van Dyck, Nancy Smith, Intervenor 2017 WL 3428096 (9th Cir. Aug. 10, 2017), decision available here.

Players: Decision by Ninth Circuit Chief Judge Sidney Thomas, joined by Judge Murguia and D.J. McCalla.  

Facts: Van Dyck, a podiatriast, was convicted of health care fraud. Id. at *2. The district court entered a $1.23 forfeiture judgement against him: the estimated amount of fraudulent claims paid by the victim insurers. Id.

  “Relator Nancy Smith” was a medical assistant in Van Dyck’s office who (she claimed) helped investigators before the prosecution began. Id. at *1.

  During the investigation, Relators filed a qui tam action under the False Claims Act. Id. at *3. When the qui tam action was (partially) unsealed, the government declined to intervene. Id. at *3.

  The Relators then moved to intervene in the government’s criminal forfeiture action: the district court declined the request. Id.

Issue(s): “[W]e consider whether a criminal forfeiture action constitutes an ‘alternate remedy’ to a civil qui tam action under the False Claims Act, entitling a relator to intervene in the criminal action and recover a share of the proceeds . . . .” Id. at *1.

  “[I]t is an open question as to whether a criminal proceeding constitutes an ‘alternate remedy,’ and that [the Relators] are therefore entitled to protect their interests in the proceeds.” Id. at *4.

Held: “We hold that it does not, and we affirm the district court’s order denying intervention.” Id. at *1.

  “The district court was entirely correct. Intervention would have violated the general rule against non-parties intervening in criminal proceedings; intervention was not permitted under the governing statute; and Realtors did not establish a sufficient interest in the forfeited funds. Relators lack standing to intervene.” Id. at *4.

  “The ‘alternate remedy’ provisions of the False Claims Act do not permit a relator to intervene in a criminal action for the purpose of asserting a right to the proceeds of that action.” Id. at *4. “[W]e need not reach the question in this case as to whether a criminal case constitutes an ‘alternate remedy,’ because the sole issue before us is whether Relators are entitled to intervene in the criminal proceeding. There is nothing in the False Claims Act that affords Relators the right to intervene in a criminal prosecution. The sole remedy afforded relators under the False Claims Act is to commence a ‘civil action.’” Id. at *4.

Of Note: These Relators are (technically) not out of the fight. The Chief explains, “Just because the criminal forfeiture action is over doesn’t mean that the Relators can’t go forward on their qui tam action.” Id. at *5.

  Of course (as Relators here complained), their late-to-the game qui tam action will be against a defendant who is effectively judgement proof: assets stripped to the bone by the voracious maw of criminal forfeiture.

  “Meh,” shrugs the Ninth: “That may well be a practical concern, but it does not provide Relators with the right to intervene in a criminal action.” Id. at *5.

How to Use: Qui tam seems an exotic civil beast irrelevant to our indigent clients. Van Dyck will hopefully keep it that way. The defense here were fighting a three-front battle: a criminal prosecution, criminal forfeiture proceedings, and a third-party qui tam action also hunting dough. A three-ring circus makes for complicated settlement discussions (note that ultimately the AUSA and the defense in Van Dyck shrugged and kicked the Relators out of negotiations. Id. at *3).

  Van Dyck radically undermines the financial incentive for qui tam actions against our clients. Qui tam actions makes the defense and government strange bedfellows: give Van Dyck to your AUSA, and collaborate to keep Relators from mucking-up already-complicated fraud cases.

                                               

For Further Reading: On the subject of strange bedfellows . . . law enforcement’s and prosecutors’ ravenous forfeiture appetite disrespects fundamental property rights. So says the ACLU – and the Koch Brothers. See article here. 

  Time for the defense bar to question whether aggressive local forfeiture initiatives are consistent with President Trump’s and Attorney General Sessions' national prosecution priorities.

Image of foot from http://nhpodiatricmedassoc.com/wp-content/uploads/2013/03/podiatrist-1.jpg

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

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US v. Smith, No. 16-10160 (8-10-17)(Thomas w/Murguia & McCalla).  The 9th affirms the district court's order denying intervention by private parties seeking recovery of fraudulent proceeds.  Specifically, the 9th holds that a criminal forfeiture action does not constitute an "alternate remedy" to a civil qui tam (bringing an action on the government's behalf) by a private party (termed a relator) under the False Claims Act, entitling a relator to intervene in the criminal action and recover a share of the proceeds under 31 U.S.C. §3730(c)(5).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/10/16-10160.pdf

Greenway v. Ryan, No. 14-15309 (8-8-17)(Per Curiam w/ Schroeder, Rawlinson, Bea)(Note: This is an Az FPD case).  The 9th declined to find that the Az Supreme Court or the trial court had used an erroneous legal standard and affirmed the denial of the petitioner's challenge to his capital convictions.  The 9th, in McKinney v. Ryan, 813 F.3d 708 (9th Cir. 2015)(en banc), had concluded that the state courts had "consistently" used the wrong legal standard in requiring a casual nexus between mitigation and the offense.  This was contrary to Lockett. This panel had asked for supplemental briefing in this case in light of McKinney.  The panel holds that in this case, neither the trial court nor the state supreme court required a nexus.  McKinney had said the courts had "consistently" applied the wrong standard; that did not mean they always did.  Here, the state courts had considered mitigation without applying a casual nexus test.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/08/14-15309.pdf

Case o' The Week: Blunt Words on Jury Nullification - Kleinman and Nullification Instructions

  Mary Jane + Rider Refrain = Jury Constrained. 

United States v. Kleinman, 895 F.3d 825 (9th Cir. 2017), decision available here.

Players: Decision by Judge Milan Smith, joined by Judge N.R. Smith and visiting Tenth Circuit Judge Ebel.

Facts: Kleiman ran California medical marijuana collectives. Id. at 830. The government alleged that a majority of the sales were done outside of the storefronts, unlawfully, using techniques found in “normal” illegal drug distribution conspiracies. Id.

  The case was dismissed stateside after Kleinman asserted the protections of California medical marijuana laws -- the feds then picked it up. Id.

  The district court emphasized during jury selection that the jury could not question any purported conflict between federal and state law on medical marijuana, and should consider the case under federal law only. Id. at 831. Kleinman was convicted after trial, and sentenced to 211 months. Id.

  After the conviction and sentence, Congress enacted an appropriations rider that prohibits DOJ from expending funds to prevent states from implementing their laws authorizing the use, distribution, possession, and cultivation of medical marijuana. Id.

Issue(s): “Kleinman argues that the anti-nullification jury instruction the district court gave prior to deliberations misstated the law and impermissibly divested the jury of its power to nullify.” Id. at 835.

Held: “The last two sentences of the district court’s instructions could reasonably imply that the jury could be punished for nullification, or that nullification is a moot exercise because the verdict would be invalid . . . . Thus, the last two sentences of the instruction were erroneous.” Id. at *837.

Of Note: Can DOJ spend funds to defend a Cali medical marijuana conviction on direct appeal? 

  Nope. 

  The Ninth holds for the first time that the marijuana rider, and the limitations of McIntosh, “applies to continued expenditures on a direct appeal after conviction.” Id. at 832. 

  Before you move for forfeiture of an Appellate AUSA’s salary, however, read the pages of caveats that follow this new rule. Id. at 832- 835. In Kleinman, the Ninth didn’t remand for an evidentiary hearing on this issue, because there were convictions that violated state law, the arguments on those convictions were dispositive on all counts, and there were there was no relief in sight in any event. Id. at 834. 

  A nice McIntosh sentiment, the Kleinman holding, but in practice, a pretty fine needle to thread.

How to Use: Error - huzzah!

  Reversal? Not so much.

  Judge M. Smith explains that this jury nullification overstep was not structural error, because “there is no constitutional right to jury nullification.” Id. The Ninth assures us (without any harmless error analysis) that the “error was not structural and was harmless.” Id. at 838. Kleinman is now a lead decision on jury nullification (and specifically endorses the Rosenthal instruction that came out of Judge Breyer’s famous ND Cal case). Id. at 836-37. The Court also specifically rejects the Sixth Circuit’s nullification smack-down in Kryske. Id. at 837.

  Have Kleinman handy in your trial arsenal, to brush back AUSAs and D.J.’s keen on quashing a jury’s nullification power. (But be careful to say “power,” not “right!”)

                                               

For Further Reading: “Good people don’t smoke marijuana,” Attorney General Sessions explained to the Senate. The Attorney General is looking for “grown ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized.” See Washington Post article here. 

  The grown ups in the Senate have been unpersuaded, thus far.

  On July 27, despite A.G. Sessions’ objections, the Rohrabacher-Blumenauer amendment was adopted by the Senate Appropriations Committee for the FY 2018 appropriations bill. See article here. 

  Of course, there is now no hope that we’ll actually have a signed FY 2018 appropriations bill by the beginning of the new fiscal year on October 1: a continuing resolution (“C.R.”) seems inevitable.

  Will McIntosh / Kleinman remain relevant law, as budget breakdowns in Congress, the inevitable FY 2018 C.R. and A.G. Sessions’ steadfast opposition, roil through the summer?

   “Blunt” questions plague this “dis-jointed” political tangle.

“Welcome to California” image from http://www.thompsoncoburn.com/images/default-source/blogs/california-marijuana_22125486773_o.jpg?sfvrsn=2

Image of marijuana blunt from http://www.thenug.com/sites/default/pub/041513/blunt-11.jpg

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

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The Ninth Circuit denied relief to two death-row prisoners in the circuit.　

1. Clabourne v. Ryan, No. 09-99022 (Berzon, Clifton, Ikuta) --- The Ninth Circuit denied a petition for rehearing filed by an Arizona death-row prisoner in light of the grant of relief in McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc). Judges Clifton and Ikuta did not see a reason to change the outcome of the case in light of McKinney; Judge Berzon would have granted penalty-phase relief under McKinney and remanded the case to the state courts for further proceedings.　

The opinions are here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/01/09-99022.pdf

2. Andrews v. Davis, Nos. 09-99012, -99013 (Ikuta with NR Smith; dissent by Murguia) --- Addressing a petition for rehearing, the panel replaced an opinion and reversed the grant of penalty-phase relief to a California death-row prisoner who alleged that he received ineffective assistance of counsel at sentencing. 　

In state habeas proceedings, the California Supreme Court ordered an evidentiary hearing on the petitioner's penalty-phase IAC claim. That hearing took place over the course of six years. Ultimately, the California Supreme Court concluded that the petitioner received constitutionally adequate assistance of counsel at sentencing and that any inadequacy did not prejudice him. See In re Andrews, 52 P.3d 656 (Cal. 2002). Under AEDPA and Harrington v. Richter, 562 U.S. 86 (2011), the majority upheld the California Supreme Court's denial of relief. Judge Murguia dissented, pointing out that "the jurors who sentenced Andrews to death never knew that he was subjected for two years as a young teenager to brutal, inhumane, and degrading abuse by his state custodians at Mt. Meigs, a segregated reform school for 'Negro children' in Alabama. Had counsel presented this readily available mitigating evidence, there is a reasonable probability that at least one juror would have been moved to exercise mercy and spare Andrews's life." She decried the application of the AEDPA limitation on relief as "unconscionable." Dueling footnnotes throughout both opinions chastize the other side's application of the AEDPA limitation on relief.　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/01/09-99012.pdf