Rodriguez v. McDonald, No. 12-56594 (9-29-17)(Lasnik w/Pregerson & Friedland). The 9th reverses the district court's denial of petitioner's habeas petition challenging his conviction for second degree murder.  The 9th concludes that a juvenile who invoked his right to a lawyer was clearly denied assistance of counsel.  He was then badgered into confessing a murder.  The recording of the interrogation leaves no doubt. 

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/29/12-56594.pdf

US v. Jayavarman, No. 16-30082 (9-26-17)(Clifton w/Graber & M. Smith). One can be convicted of an attempt to produce child porn outside the US for importation under 18 U.S.C. § 2251(e) even if the "minor" is an adult, despite the fact that the government would have to prove that the minor was a minor for a conviction on the completed offense. In this case, the defendant went to Cambodia, where he filmed himself having sexual relations with a female he claimed was a minor. At trial, and on appeal, he argued that the female was in fact an adult. As a matter of statutory construction, the conviction must be reversed.

The 9th rejects the argument, writing "We conclude that a person may be convicted for attempt to commute the crime charged [2251] if he believes that the victim was a minor, even if the victim was not in fact a minor." The 9th explains the focus is on the defendant's state of mind. In offenses where there is a face to face contact, such as completing the offense, there is no knowledge scientor requirement as the age is a strict liability, although a "mistake of age" defense can be raised. In an attempt, the government does not have to prove the victim is a minor, as what the defendant intended in attempting is key.

The 9th rejects challenges under the First Amendment, sufficiency of the evidence, jury instructions, and mistake of age. The 9th also finds no error in the court admitting evidence despite a 403 objection as it was highly probation and not unduly prejudicial (transcripts of the defendant). The court need not have stated that he read every word, as the defendant argues he must avow under Curtin (pornographic stories); and he need not necessarily read each and every word. The court must know the gist and contents and the 9th was satisfied here the court did. The court did not err in finding that the defendant sufficiently spoke and understood English and did not need a Khmer interpreter.

The 9th dismisses the other conviction of "attempt to aid and abet" travel with intent to engage in illicit sex under 18 U.S.C. § 2243(b). The government concedes that there is no "attempt" offense for this offense.  Under the federal criminal code, there must be a specific "attempt" offense.

The case is remanded for resentencing because of the dismissal. The court had indicated it did a holistic sentence, taking into account both convictions.  The court gets to resentence.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/26/16-30082.pdf

Case o' The Week: Ninth Not Keen on Gray Primer - Hernandez Martinez and the New(ish) Illegal Reentry Guideline

 The Ninth finds a little light, amongst the gray.

United States v. Hernandez Martinez, 2017 WL 4080481 (9th Cir. Sept. 15, 2017), decision available here.

Players: Decision by Judge Ikuta, joined by Judges W. Fletcher and DJ Barker. Nice win for Deputy Federal P.D. James Locklin, Central District of California.

Facts: After pleading guilty to illegal reentry in violation of 8 USC § 1326, Hernandez Martinez received the +8 OL bump at sentencing for having had a “two year or more” felony sentence before he was removed the first time. Id. at *1 (citing USSG § 2L1.2(b)(2)(B) (Nov. 1, 2016), see Guideline here. 

  Actually, he had been convicted a felony and received a 365 day sentence with probation to follow, before removal. Id. After that California conviction, he was deported, reentered, his probation was revoked, and he was then was sentenced to three years. Id.

  In other words:

  Cali felony conviction w/ 365 day sentence => 
  Removal => 
  Reentry => 
  Revocation of Cali probation, and three year sentence.

  
At the federal, § 1326 sentencing, Hernandez objected to the eight offense level guideline increase, because his original Cali felony sentence was under two years before he was first deported. Id. at *2.

  The district court rejected Martinez’s objection and imposed the guideline increase. Id.

Issue(s): “Hernandez Martinez argues that the district court erred in applying this enhancement. Although Hernandez Martinez sustained a felony conviction before he was first ordered deported, he was sentenced to only one year of incarceration before his first deportation order; the sentence was increased to three years of incarceration after he returned to the United States.” Id. at *1.

  “The question presented here is whether the phrase ‘sentence imposed’ includes terms of imprisonment that were imposed after the defendant’s first deportation order when assessing the defendant’s eligibility for the § 2L1.2(b)(2)(B) enhancement.” Id. at *3.

Held: “We conclude that Hernandez Martinez’s conviction did not qualify for the eight-level enhancement under § 2L1.2(b)(2)(B), and we therefore vacate the sentence and remand for sentencing.” Id. at *1.

  “We conclude that when viewed in its historical context, the amended § 2L1.2(b)(2)(B) is best read as carrying forward the Commission’s prior, unambiguous conclusions that a qualifying sentence must be imposed before the defendant’s first deportation or removal.” Id. at *6.

Of Note: The Ninth got it right. The Fifth got it right. See id. at *5. So who got this new guideline wrong? The Office of General Counsel, for the Sentencing Commission. In its 2016 Primer on Immigration Guidelines, the Primer opined that revocation sentences after removal “counted” towards the "sentence" requirement for the offense level bump. See id. at *6, n.2; see also Immigration Primer here, at 24-25.

  “Meh,” sniffs the Ninth: “The Primer expressly disavows the authority to represent the official position of the Commission . . . and its unreasoned interpretation lacks persuasive power.” Id. (internal quotations and citation omitted).

  A handy footnote, when the proclamations of Commission staff run contrary to your argument.

How to Use: Interpreting the guidelines just required old-fashioned, “ordinary statutory interpretation.” Id. at *2. Hernandez-Martinez adds an arrow to that analytical quiver. In essence, Judge Ikuta explains that if the Commission intends a change to the status quo, it must plainly explain that is what it wants. Id. at *5. Language disappearing in an amended guideline, alone, isn’t enough. Id.

  An interesting concept to mull, as Johnson warriors explore the boundaries of the new(ish) Career Offender definitions. See USSG § 4B1.2, Nov. 1, 2016 (available here).  

                                               

For Further Reading: Whither the Sentencing Commission?

  In August 2017, Attorney General Sessions urged the White House to nominate Eastern District of Virginia District Judge Henry “Hang ‘Em High” Hudson as a Sentencing Commissioner. See article here. 

  (That whole guideline “status quo” thing is sounding pretty good . . . )

Image of Nov. 1, 2016 Sentencing Manual from https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/2016GLMCover.jpg

Image of “Hang ‘Em High” Movie poster from http://omstout.com/wp-content/uploads/2013/09/hang-em-high.jpg

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

..

Browning v. Baker, No. 15-99002 (9-20-17)(Gould w/Wardlaw; dissent by Callahan).  The 9th gave habeas relief in this Nevada capital matter. The 9th found that in a prosecution for a robbery and murder in a Las Vegas jewelry store, the prosecution committed Brady violations.  The expectation of favorable treatment by a witness for his testimony, an observation of a shoeprint by an officer, and the victim's description of his assailant's hairstyle all were favorable to the petitioner.  The evidence should have been turned over.  The evidence was material.  As for AEDPA deference, the 9th finds that the Nevada Supreme Court's use of the Supremes precedent was objectively unreasonable. The 9th also granted relief for IAC as to representation.  There was no Napue violation (awareness of evidence). The petitioner's escape conviction was upheld; there was no error presented.  Dissenting, Callahan argues that AEDPA deference should control.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/20/15-99002.pdf

Case o' The Week: Ninth Seals the Deal - Doe and Closed Dockets for 5K Sentencings

  “Snitches get stitches sealed dockets.”

 United States v. John Doe, 2017 WL 3996799 (9th Cir. Sept. 12, 2017), opinion available here.

 

Players: Decision by Judge Christen, (mostly) joined by Judge Watford and DJ Soto.

Facts: John Doe (name changed for security) cooperated to work down a meth importation sentence. Id. at *2. He gave info on a narcotics conspiracy; it lead to at least one arrest. Id. Doe received a § 5K1.1 departure at sentencing, and moved to strike the 5K references in the docket and seal entries relating to his cooperation and sentencing. Id. at *2. The district court refused, concluding Doe had failed to rebut the “presumption of openness that arises pursuant to the First Amendment.” Id. at *3.

Issue(s): “Doe argues that the public has neither a First Amendment right nor a common law right of access to § 5K1.1-related documents.” Id. at *4.

Held: “We assume without deciding that there is such a right, and conclude that the facts of this case rebut any resulting presumption of openness.” Id. at *4.

  “Nothwithstanding the lack of more specific threats to Doe and his family, the court erred when I failed to find a substantial risk to compelling interests under the facts of this case.” Id. at *6. “Absent closure, the record establishes that there is a substantial probability of harm to compelling interests in Doe’s case.” Id. at *5. “Here, closure is warranted.” Id. at *7.

   “Assuming that a qualified First Amendment right of public access attached to the § 5K1.1 documents in this case, Doe successfully rebutted the presumption of openness. Accordingly, we REVERSE the denial of Doe's motion to seal and denial of Doe's motion to strike and replace the docket entry text mentioning § 5K1.1. We REMAND for sealing in accordance with this opinion.” Id. at *9.

Of Note: Big issues, swirling about this brief opinion. The subtext is a 2016 report of the Judiciary’s Committee on Court Administrationand Case Management (CCACM). The Committee detailed the harms suffered by cooperators, and reported the “show me your docket” gauntlet that our clients have to run in federal prisons. Id. at *6. The Committee has admirable concern for cooperator safety, but CCACM has also cooked up some radical new proposals – including shifting to a sealed sentencing supplement for all cases (including non- cooperators). Id. at *8.

  CCACM has been pushing for adoption of its controversial proposals by district courts, even before they’ve been approved by the Judicial Conference. In Doe, Judge Christen lauds CCACM’s general intentions, but notes the Committee’s proposals won’t fly given Ninth Circuit First Amendment precedent. Id. at *8, discussing In re Copley Press, Inc., 518 F.3d 1022, 1026-27 (9th Cir. 2008)).

How to Use: As noted above, CCCACM’s “seal it all” proposal won’t work in light of Copley Press. However, Judge Christen explains, “nothing in our precedent prevents district courts from adopting some variation of the practices recommended by the CCACM Report, as long as district courts decide motions to seal or redact on a case-by-case basis. Without running afoul of Copley Press, district courts could include cooperation information in a sealed supplement if the presumption of openness is overcome. Our precedent also allows the presumptive sealing of documents attached to a motion to seal while district courts consider whether the documents should be made public.” Id. at *8.

   Anticipate district courts mulling Doe in cooperator cases – the opinion is a must read before a § 5K1.1 sentencing. 

  And if your client is the target of cooperation (and you’re skeptical of the government’s Brady / Giglio compliance), worry about what the Judiciary’s good-hearted efforts to protect cooperators will mean for your efforts to investigate the government’s witnesses against your client.

                                               

For Further Reading: Why does CCACMS’s obsession with sentencing secrecy make the defense bar nervous? 

  There are at least six million reasons . . .  See Matt Apuzo, “’I Smell Cash’: How the A.T.F. Spent Millions Unchecked – A pair of Informants got $6 million and agents spent freely. The Justice Department fought to keep records of the operation secret,” available here. 

   How did the NYT break such this remarkable story of federal law enforcement abuse, dirty informants (and, by all appearance, corruption)? “The Times intervened in an ongoing fraud lawsuit over the activity and successfully argued that a judge should unseal them.” Id. (emphasis added)

   A sobering reminder of why the First Amendment matters, and an (outrageous) example of the dangers of sealing.

Needlepoint picture from https://img0.etsystatic.com/000/0/6429247/il_570xN.342566852.jpg

Image of Big South Wholesale LLC from http://blog.al.com/spotnews/2011/04/business_gives_shelby_county_s.html

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

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US v. Hernandez Martinez, No. 17-50026 (9-15-17)(Ikuta w/Fletcher & Barker).  This is a significant 1326 sentencing case under the 2016 amended  2L1.2 guidelines.  The 9th holds that the enhancement for 2L1.2(b)(2)(B) will depend on the sentence imposed before the first order of deportation/removal. The 9th joins the 5th in this interpretation. (Note that the Az district courts have been taking a contrary position).

The defendant was convicted of a felony in 2003 (lewd acts with a child). The state sentenced him to one year and five years of probation.  The defendant was then deported.  He returned without authorization, and faced a probation violation.  He received three years.  He was then deported.  In 2016, he was in the United States again, got another state sentence (a misdemeanor) and a 1326 charge.  The court applied the amended 2016 guidelines, and gave him an adjustment because his prior felony was imposed before he was deported. The adjustment was +8 levels because the court characterized the sentence as being more than 2 years. The defendant argued in court, and on appeal, that the state conviction did not trigger the +8 enhancement because he was sentenced to only a year of prison before his first deportation.  The issue is:  how to calculate the sentence length.

The 9th holds that under 2L1.2(b)(2)(B) the qualifying sentence must be imposed before the first deportation.  The 9th reasoned that the 2016 amendment is best read as continuing the Commission's prior interpretation of when first imposed.  The 9th examined the policy statements, and history of various amendments, especially the 2012 amendment, which had clarified that sentence imposed before deportation is what counts.  The 2016 amendment introduces ambiguity, but to the 9th's mind, did not reverse the prior clarification.  The 9th looked at the text which closely matches the 2012 amendment; any change was necessary for other reasons, and there was no suggestion of adopting the previous minority, and rejected, position. Finally, the 9th embraces the 5th's interpretation along the same lines.

As the 9th states:    "We conclude that when viewed in its historical context, the amended [] 2L1.29b)(2)(B) is best read as carrying forward the Commission's prior, unambiguous conclusion that a qualifying sentence must be imposed before the defendant's first order of deportation or removal." P. 14.

In so writing, the 9th also drops a footnote declining the government's request to use the interpretation set forth in  a "Primer on the Immigration Guidelines" published by the USSC.  The 9th comments that the Primer expressly disavows any authority to represent the official position; and most telling, "its unreasoned interpretation lacks persuasive power." P. 14-15, n.2.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/15/17-50026.pdf

Atwood v. Ryan, No. 14-99002 (9-13-17)(Ikuta w/McKeown & Callahan)(Note:  This is an Az FPD case).  The 9th affirmed the denial of petitioner's capital habeas claims. AEDPA, as usual, cast its "state court's reasonableness" pall over the decision.

Petitioner had a prior conviction for lewd and lascivious conduct.  It was punishable, at the time of the offense, by life imprisonment.  Subsequently, the state legislature reduced the term of imprisonment.  This reduction meant, argued petitioner, that this conviction was improperly used as an aggravator.  As such, the class was of defendants was broader than required under capital jurisprudence and thus arbitrary. The 9th rejected this contention, finding that the state court's interpretation of future dangerousness or proclivity was reasonable.

The 9th also rejected the argument for an evidentiary hearing on police misconduct.  The contention that the police planted evidence (actually a paint smear on the bumper) was not, to the court, credible enough for a hearing.  The 9th agreed.

There was no IAC in the forensic approach as to time of death; nor IAC in the failure to present mental health evidence in the sentencing phase.  The 9th explained that counsel's concern that such evidence might open doors to an unfavorable diagnosis was a legitimate decision.  The petitioner also supposedly did not want such evidence presented.

On the Martinez claim, the 9th found no IAC by the state PCR counsel.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/13/14-99002.pdf

Cain v. Chappel, No. 13-9908 (9-13-17)(Rawlinson w/O'Scannlain & Collins).  The 9th affirmed the denial of a capital habeas petition.  The 9th concluded that the petitioner had received adequate notice of the special circumstance of the homicide, attempted rape.  The 9th found the state supreme court's finding of notice reasonable, the quasi-notice of rape or attempted rape, the factual basis, and counsel's lack of surprise. The 9th also found no IAC in counsel's concession of guilt in the guilt phase stage as the strategy was to save his life and the facts beyond challenge; no IAC in failure to object to the special circumstance in the second amended information because counsel was aware of the underlying charge; and no IAC in failure to investigate or present mental health or diminished capacity defenses. In terms of sentencing, there was no IAC in failure to present mental health and voluntary diminishment. There were risks in presenting such topics.  The Atkins claim was also denied.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/13/13-99008.pdf

US v. Spatig, No. 15-30322 (9-13-17)(McKeown w/Murphy & Nguyen). "Good fences make good neighbors" is how the 9th starts this Opinion, but then noting that fences don't help much when someone is storing hazardous and combustible materials where he shouldn't be.  Here, the defendant retired from his job refinishing cement floors, but seemingly didn't stop work, or storing his leftover and discounted paints, finishes, and other materials at his home.  Complaints from neighbors led to a warning by city officials --don't store.  However, the defendant continued storing. When the county officials were called again, because of the condition of the property, they discovered thousands of cans of paint and other materials.  The site became a toxic cleanup: EPA officials had to don hazmat suits to remove all the materials.

In affirming the conviction for a violation of the Resource Conservation and Recovery Act, 42 USC 6928(d)(2)(A), the 9th found no error in the district court precluding evidence of defendant's diminished capacity.  (The defense was a mental or knowledge one). This was, concluded the 9th, not a specific intent offense. The 9th notes that the statute requires "knowingly," which is usually taken as general intent. The defendant has to know he is storing something, but the offense does not require a specific aim, particular purpose or achievable objective. Past cases dealing with this statute assumed general intent.  This decision also aligns with other subsections and with the model penal code.

The 9th affirmed the sentence as well against a guidelines challenge. The 9th found no error in an enhancing adjustment for substantial cleanup costs.  The amount was close to $500,000.

The opinion is an interesting read, with the opinion having some sly touches (past cases "paint" the statute as a general intent crime, and the aforementioned "fences"). Recently, in McChesney, the same author started with "he said/she said" in the first sentence.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/13/15-30322.pdf

US v. Doe, No. 15-50259 (9-12-17)(Christen w/Watford & Soto). Do you represent defendants who cooperate? Do you represent defendants against whom there is cooperation? If so, and that should be everyone practicing federal criminal law, this is an important case.  It doesn't deal with substantive criminal law and procedure; rather, it deals with the issue of sealing filings and documents related cooperation departures.

The 9th reverses the district court's denial of a motion to seal those documents.  The court had refused to seal cooperation documents, including the departure memo. The court found a qualified first amendment right for public access that was not rebutted. The court also said that most cooperation was meaningless, and that the risks were small.

On appeal, the 9th reverses.  The 9th assumes without deciding that there is a qualified first amendment public right to access.  However, the defendant rebutted the presumption given his cooperation against the Mexican cartel, several other defendants both in and out of custody, and threats made to him and his family.

Of note is the discussion ongoing on whether courts should create dummy dockets, or have an entry that is sealed in every case, to prevent certain filings to red flag cooperation.  Cooperators are at risk in the BOP and the courts have been trying to protect them. The panel discussed the Court Committee on Administration and Court Management's (CCACM) report on cooperators and the grave risks they face.  CCACM advocates the process, in place in many districts, of having a sealed supplement or portion in filings and in sentencings to camouflage whether there has been cooperation. This procedure though is not without controversy, as it endorses sealed proceedings in every criminal matter, secrets information from the public and press, and creates misleading entries. It effectively hides cooperation in the dark.

The panel acknowledges that 9th precedent bars all the recommendations of CCACM. Specifically, In re Coply Press, Inc., 518 F.3d 1072. (9th Cir. 2008), states that the public has a qualified right of access to certain documents.  There must be an individualized assessment. That is a fight possibly down the road.

Watford here does not join the section of the opinion that deals with the government's interest in secreting its ongoing investigations.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/12/15-50259.pdf

US v. Barragan et al, No. 13-50516 (9-8-17)(Hurwitz w/Lipez & Bea). This is a long opinion affirming the convictions, and nearly all the sentences, in a RICO gang prosecution.  The appeals raise a complete spectrum of issues.  It is a useful guide to approaching a RICO or gang conspiracy case.  Of special note, for all cases, was the 9th finding error in a prosecutor's closing remarks to the jury that they should say "no more." The 9th equates this with the improper "send a message" argument. However, although there was error, it was deemed harmless.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/08/13-50516.pdf

Taniko v. Williams, No. 15-16967 (9-8-17)(Reinhardt w/Kozinski & Berg). The 9th reversed the district court's judgment that petitioner's federal habeas was untimely. The state trial court had entered a Second Amended Judgment after a remand from the State Supreme Court. The district court had used an earlier judgment to start the timely filing period.  This was error because the time runs from the judgment under which the petitioner is being held.  In Magwood v. Patterson, 561 US 320 (2010), the Supreme Court reached the same conclusion.

Congrats to AFPD Jonathan Kirshbaum of the FPD Nev office (Las Vegas).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/08/15-16967.pdf

US v. McChesney, No. 16-30052 (9-11-17)(McKeown w/Callahan & Ikuta). The 9th affirms the district court's denial of a motion for a new trial.  The defendant, after conviction for a gun heist, argued that his ex-girlfriend had accosted jurors and made disparaging remarks about him, and that he should "go to prison." This issue was raised in the first appeal, and the 9th remanded for an evidentiary hearing "to dig a little deeper." The court dug deeper, and found that the allegations were not credible.  Court staff heard no such haranguing; jurors reported no contact with anyone about the case; and defense witnesses' stories did not align.  The 9th found the district court had not erred in finding "no credible evidence" any improper contact occurred. The defendant did not carry his burden.

As for other issues raised, the 9th held that the district court did not commit error in not recalling the jurors for live testimony.  This was a case where it was not required.  The court used a questionnaire instead as a way to contact the jurors years after the trial.  There was no error in the defendant not being present when procedures were discussed for the hearing.  It was a close call, especially as it related to objections to a questionnaire, but any error was harmless.  The district court did not abuse its discretion in failing to recuse itself.  Finally, defendant waived any error in the failure to preserve surveillance video as it was not raised in the first appeal.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/11/16-30052.pdf

Case o' The Week: Title III for Parolee - Gutierrez and Necessity Showings in Title III Wiretaps

 Necessity is the Mother of Invention (and the absent, Deadbeat Dad of Title III).

United States v. Jesus Barragan, 2017 U.S. App. LEXIS 17388 (9th Cir. September 8, 2107), decision available here.

Players: Decision by Judge Hurwitz, joined by Judge Bea and visiting First Circuit Judge Lipez.  

Facts: Feds obtained a Title III order, tapped, then charged Mexican Mafia members in a RICO case. Id. at *6. One defendant was “Bullet” Gutierrez. Id. 

  When the RICO investigation began, Gutierrez was in custody. Id. The wiretap sought interception of Gutierrez despite the fact that he was then on parole – and was already monitored – during the tap. Id. at *15-*16. The fact that Gutierrez was on parole, and was monitored, was omitted from the wiretap affidavit. 

  “Gutierrez moved to suppress the wiretap evidence and for a hearing pursuant to Franks . . . , on whether [the requesting agent’s] affidavit was materially misleading.” Id. at *13. The Title III challenge was denied. Id.

Issue(s): “Gutierrez argues that (1) suppression was required because the affidavit failed to show that a wiretap was necessary, and (2) a Franks hearing was required because the affidavit contained false information.” Id. at *12-*13.

Held: “[Re: necessity]: Overall, the [agent’s] affidavit explained in reasonable detail why traditional investigative procedures had reached their limit.” Id. at *15. [T]he fact that Gutierrez knew that he was being monitored suggests, if anything, that he would have been more discreet in communicating with conspirators, reinforcing the need for a wiretap.” Id. “The fact that the task force had some degree of success without a wiretap did not extinguish the need for a wiretap.” Id. at *16. 

  “Although the affidavit omitted the fact that Gutierrez was subject to monitoring as a condition of his parole, the district court would still have been reasonable to find the wiretap necessary had this fact been included.” Id. at *17 (internal quotations and citations omitted in all quoted language above).  

Of Note: Those who fight to protect the privacy interests guaranteed by Title III limitations will find Barragan disheartening. The agent/affiant who sought the wiretap omitted an important fact in the necessity showing of his affidavit: Gutierrez was on active parole, subject to the monitoring provisions associated with California parole, and could have been stopped, searched, and otherwise generally harassed by law enforcement (effectively at will). 

  Under traditional Title III analysis, omission of that important fact would be a Franks error, that undermined the “necessity” showing for the wire. (Whether the omission of that fact was fatal to the necessity showing is a different subject -- that would normally be the heart of the appellate analysis).

   But in Barragan, the Ninth oddly speculates that Gutierrez’s monitoring on parole supported the need for a wire. Id. at *16. The logic is hard to reconcile with Title III’s necessity requirements: is the Ninth saying that when law enforcement has more tools to investigate a suspect (like parole monitoring conditions), a wiretap is more necessary because the suspect will be more circumspect?

  There is no citation for this new correlation, and with no Franks evidentiary hearing in the case, there are no facts supporting this assumption. A discussion in Barragan that will haunt future Title III necessity litigation.

How to Use: Judge Hurwitz couches his musings on parole monitoring with the caveat that it “suggests, if anything, that [Gutierrez] would have been more discrete.” Id. at *15-*16 (emphasis added). The Court goes on, however, to conclude that it would not have been fatal to the affidavit, given the agent’s detailed discussion of other investigative techniques. Id. at *16.

  Read fairly, this “parole monitoring” discussion is, at most, unfortunate dicta: fight this issue in future Title III litigation.

                                               

For Further Reading: President Trump’s first Ninth Circuit nominee is Assistant United States Attorney Ryan Bounds, of Oregon. See Press Release here. 

D. Oregon AUSA Ryan Bounds

  Last week Oregon Senators Jeff Merkley and Ron Wyden wrote to the President. The Senators explained they do not intend to return blue slips supporting this nomination. See letter here. 

  It is notable that the first Ninth Circuit nominee that the President seeks to send to the Senate would arrive sans blue slips. 
  Battles between the branches loom.

Image of Wiretapping poster from http://www.emergentchaos.com/images/09/feb/wiretap%20america.jpg

Image of AUSA Ryan Bounds from http://www.metnews.com/articles/2017/bounds090817.htm 

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

….

US v. Torres, No.13-50088 (9-6-17)(Ikuta, specially concurring on one issue, w/ Block; Clifton concurring). This is a 841 case revolving around a jury's assigning drug quantities to criminal conduct.  The issue is whether a disjunctive or conjunctive formulation should be used in instruction 50 for culpability.  Huh?

Okay, here we go--the 9th in Becerra, 992 F.2d 960 (9th Cir 1993), held that a coconspirator's responsibility was disjunctive ("or") in that the drug quantities attributable to a coconspirator had to be either reasonably foreseeable or that fell within the scope of his agreement.  The 9th reasoned that the analysis should follow the Guidelines' formulation. The 9th rejected the government's argument that the analysis for culpability should differ between the mandatory minimum and the Guidelines.  The 9th looked to the Guidelines' formulation.  But wait...what if the Guidelines' definition changed?  Did it?  Yes, and sooner than the 9th thought.

Over the years, the Guidelines were amended so that the responsibility had to be conjunctive: requiring "and".  The defendant was responsible for conduct that was (1) reasonably foreseeable; and (2) or was jointly undertaken or agreed to.  The Guidelines were amended in 1992 to this effect, so the 9th was already late.  The years have further undermined reasoning.  Subsequent cases recognized this undermining, but either ignored it, or sidestepped it by only having the issue deal with the Guidelines application only, and not the statutory mandatory minimum.  This case here squarely deals with the issue...sort of.

Sort of? Well, yes, because of "plain error."  The majority opinion on this issue, authored by Clifton, points out that the precedents are a "mess" (his word), and that an en banc needs to resolve this.  The precedents rely on reasoning that no longer exists--and makes reference to employing standards in the Guidelines that have been subsequently amended several times.  Reversal of life sentences for these Mexican gang members?  No.

It is "No" because of "plain error."  The instruction was not objected to by defense counsel.  Thus, under a plain error analysis, there was sufficient evidence that the defendants' substantive rights were not violated.  So, the en banc may wait for the next case, which, under this Administration, may be coming soon.

Ikuta, in the majority for the other issues (not nearly as interesting) finds no error in: (1)  refusing a multiple conspiracy instruction; (2) not finding that the state convictions overlapped with the federal charges, and so were not priors convictions under 841; and (3) no Apprendi error.

In her special concurrence for the disjunctive issue, Ikuta finds that the precedent is good law and there was simply no error as the district court followed precedent.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/06/13-50088.pdf

US v. Faagai, No. 15-10621 (9-7-17)(Bea w/Hawkins; Kozinski dissenting).  A friend of a friend was a drug dealer.  Does meeting with him four times, with cryptic messages and at out of the way places, create probable cause under a totality of circumstances to stop and search a truck?  A majority of the panel says "yes." The opinion focuses on the various drug dealings of the friend.  There is no doubt he was involved in trafficking.  The connection with him, the "code" used for drugs, and the out of way, albeit legitimate places (Costco was 24 miles away and another one was closer) also supports a totality of circumstances finding probable cause.

Dissenting, Kozinski scoffs at the connections.  Agents wiretapped the dealer, but heard no explicit reference to drugs.  The agents trailed and surveilled the meetings but never saw drugs nor money exchanged.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/07/15-10621.pdf

US v. D.M., No. 16-50243 (9-7-17)(Callahan w/Wardlaw & Kendall).  This is a sentencing reduction case as a result of a USSG amendment.  The 9th vacates a denial of a motion to reduce a sentence and remands.

The 9th holds that nothing in the Guidelines or comments precludes a court from considering various departures in a prior sentence when resentencing a defendant under USSG 1B1.10(b)(2)(B), which is an exception to 1B1.10 (sentence reduction due to amendment).  Here, the defendant received departures for cooperation and for "fast track." if the court only considered cooperation in a resentencing, the guideline range is not lower after the amendment (reducing the drug level by 2).  If the fast track is considered, then it would be lower.

The 9th examines the Guidelines and comments and favors the interpretation to consider all departures applicable to the previous sentence, once substantial assistance is triggered.  This approach is consistent with the purposes of treating cooperators favorably, promotes conformity, and avoids complexity and litigation.  The government and defendant both favor this interpretation.  The defendant is not "gaming" the system as the court will have the final say.  It is also supported by the rule of lenity.

The 9th sides with the 7th Circuit in this interpretation.  This does set up a circuit conflict with the 6th.

Lastly, although considered initially, this appeal is not moot.  The defendant had already been released from custody but was still under SR.

Congrats to Jim Fife of the Federal Defenders of San Diego.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/07/16-50243.pdf

 

Case o' The Week: Divided Loyalties - Ocampo-Estrada and Divisibility of Cal H&S Sec 11378

  Tough row to hoe, to get the Ninth to concede that drugs facts are “elements” in federal drug statutes. See United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc.)

   Turns out the Ninth is far more open, however, to finding elements in state drug  offenses.

United States v. Ocampo-Estrada, 2017 WL 3707900 (9th Cir. Aug. 29, 2017), decision available here.

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

Facts: Ocampo-Estrada was a meth supplier. Id. at *1. Before trial, the government alleged a § 851 prior to create a twenty-year mandatory minimum sentence: an old conviction under California H&S Code § 11378. Id. *2. The district court did not inform Ocampo he had to challenge the prior to avoid statutory waiver under 21 USC § 851(c)(2). Ocampo didn’t challenge the prior as failing to qualify as a “felony drug offense.” Id. at *3. 

  Ocampo was convicted after trial, and sentenced to the twenty-year mand-min.

Issue(s): “[T]he threshold question then is whether California Health & Safety Code section 11378 is a divisible statute.” Id. at *5.

Held: “We hold that it is. In United States v. Martinez-Lopez, — F.3d —, No. 14-50014, 2017 WL 3203552, at *5 (9th Cir. July 28, 2017) (en banc), our en banc Court recently held that a similar statute, California Health & Safety Code section 11352, is divisible with respect to its controlled-substance requirement. In other words, the controlled substances referenced in section 11352 are treated as listing separate offenses, rather than merely listing separate means of committing a single offense. The rationale of Martinez-Lopez applies with equal force to section 11378, the statute before us.” Id.  

Of Note: Ocampo-Estrada builds upon and expands the unfortunate outcome of the Ninth’s en banc decision in Martinez-Lopez. See blog here. Judge Berzon’s compelling critique of the Martinez-Lopez decision applies with equal force to Ocampo-Estrada: why are the feds telling California the elements of state drug crimes? 

  On a more positive note, Ocampo-Estrada lost the battle but won the war in this case. The government convinced the Ninth to plow through and get to a modified categorical analysis – but once there, the Court shrugged and held the government hadn’t met its burden to prove which controlled substance was the basis for the § 11378 prior. Id. at *6. Ultimately, a fact-specific win for this particular defendant that will (hopefully) result in a sentence far below the twenty-year mand min.  

How to Use: As noted above, Ocampo-Estrada didn’t raise this specific objection when the prior was alleged. Why wasn’t this challenge waived? In a useful analysis, the Court explains that it is the district court’s statutory obligation to “advise [the defendant] that he was required to make timely challenges to the proposed enhancement in order to avoid a statutory waiver.” Id. at *3. Without that explicit advisement, the government’s waiver argument were for naught. 

  Better to preserve all objections, of course, but useful to know that inadequate advisements when a § 851 prior is filed may still protect against appellate waiver.   

                                               

For Further Reading: On the subject of priors – A.G. Sessions has very publicly directed stated his support for mandatory minimum sentences in drug cases. The ABA House of Delegates disagrees. It recently adopted a resolution opposing the imposition of mand-mins. See article here. 

  A second, withdrawn proposal would have specifically urged A.G. Sessions to rescind his policy, announced in May, to federal prosecutors directing them to pursue the most serious, readily provable offense. Id. 

  Why withdrawn? DOJ lodged last-minute objections. Look for the ABA’s call to rescind to be brought back at the ABA’s midyear meeting in February.

Image of West’s Annotated California Codes from https://i.ebayimg.com/00/s/MTIwMFgxNjAw/z/BvQAAOSwf-VWWoj8/$_58.JPG

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

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