US v. Rodriguez, No. 16-10017 (1-30-18)(Bennett w/Kozinski & Friedland). 

This is an Az FPD case. In the 9th's reversal of an alien smuggling conviction, there are two important issues: (1) a bad jury instruction for "reckless disregard"; and (2) a confrontation clause violation in the video deposition as the government failed to make a sufficient showing of unavailability. The 9th found that the jury instruction defining "reckless disregard" was flawed. The instruction may have required the defendant to be aware of facts to draw an inference, but it plainly did not require that the defendant actually draw the inference.  This was key under the facts of this case. The 9th rejected the government's waiver arguments, concluding too that the government waived any harmless-error review by failing to argue it.  Second, the 9th held that the government violated the Confrontation Clause by failing to demonstrate that a deported witness was unavailable to testify when the government did not make reasonable efforts to secure the witness's presence at trial.  The government did not act in good faith.  The government knew that the witness's counsel had lost contact with the witness.  Yet, the government possessed the witness's identification card, with his address, and could have taken steps to contact him, or provide the information to the witness's counsel or defendant. The government further did not show that the witness would not have returned.

Congrats to Edie Cunningham, AFPD Az  (Tucson).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/30/16-10017.pdf

Case o' The Week: Ninth Digs "Other Dude" Dirt - Urias Espinoza, FRE 404(b), and Third Party Culpability Evidence

 As you SODDI, so shall you reap.

United States v. Espinoza, 2018 WL 493194 (9th Cir. Jan. 22, 2018), decision available here.

Players: Decision by Judge Paez, joined by Judges Berzon and Christen. Admirable win for AFD Michael Marks, Fed. Defenders of San Diego, Inc.  

Facts: Urias Espinoza, a Mexican national, was stopped as she tried to legally cross the border. Id. A search of her car revealed that the rear seats had been hollowed-out and filled with twelve kilos of meth. Id. 

  At the trial for importation charges, the government introduced messages on her cell about delivery of a “product.” Id. at *2. Urias Espinoza’s “blind mule” theory was that her neighbor in Mexico packed her car with meth without her knowledge. Id. She tried to introduce evidence that her neighbor was an admitted drug dealer, with a prior conviction for drug distribution, and a prior deportation (showing why he couldn’t reenter). Id. 

  Most of this proffered evidence of third-party liability was excluded by the district court. Urias Espinoza was convicted and sentenced to ninety months. Id. at *3.

Issue(s): “We consider whether the district court abused its discretion in excluding evidence of third-party culpability.” Id. at *1. “The case centers on the threshold requirement for the admissibility of third-party culpability evidence under the Federal Rules of Evidence.” Id. at *3 (emphasis added).

Held: “We conclude that the district court necessarily abused its discretion by applying an incorrect legal standard to determine whether third-party culpability evidence should be admitted.” Id. at *3.

Of Note: The broad FRE 404(b) sweep in this case is great – for this defendant, trying to introduce bad acts committed by her neighbor. Judge Paez explains that the neighbor’s conviction should have come in, despite the fact that the neighbor’s prior was a decade old, was for pot (not meth), and was for distribution, not importation. Id. at *7. 

  Should we worry a “sauce for the goose, sauce for the gander” flip of this broad FRE 404(b) net against a defendant in future cases? Nope. Judge Paez carefully distinguishes this expansive FRE 404(b) analysis for third-party liability evidence, from the government’s limited use of 404(b) evidence against a defendant. The government faces a higher 404(b) hurdle – defendants deserve more protection than other potential witnesses from “bad acts” evidence. Id. at *7 (“We caution, however, that our ruling that the conviction documents were admissible here is not transferable to a situation in which the government seeks to introduce similar evidence with respect to a defendant's prior crimes under Rule 404(b). . . . This is because the standard of admissibility when a criminal defendant offers similar acts evidence as a shield need not be as restrictive as when a prosecutor uses such evidence as a sword.”)

How to Use: The Court here relies on its 1980 Armstrong decision, which had held that evidence of third-party culpability is relevant and admissible unless barred by another evidentiary rule. Id. Notably, the Court works through – and rejects -- the district court’s interpretation of latter Ninth authority reportedly constraining that broad Armstrong reading. Id. at *4. 

  A great outcome in this case, but beware that Urias Espinoza is deeply grounded in the Federal Rules of Evidence. For habeas folks eyeing state convictions, note that the Court carefully avoids the constitutional “right to present a defense” challenge in this case. Id. at *1 & n.1. (The Ninth also distinguishes – but does not reject – previous Ninth authority finding no constitutional bar to state limits on third-party culpability evidence). Id. at *4.   

                                               

For Further Reading: SODDI – “Some Other Dude Did It:” a time-honored defense. See Imwinkelried article here.

  When the “other dude” is dirty, shouldn’t a defendant be permitted to share that dirt with the jury? The Ninth in Urias Espinoza thinks so, and reverses this conviction despite the high "harmless error" bar. Id. at *10.

  The Ninth is spot on: old-school limitations on third-party liability evidence are outdated and unfair. For an interesting piece discussing this area of law, see Professor David Schwartz and Chelsey Metcalf, Disfavored Treatment of Third-Party Guilt Evidence, available here. 

Judge Judy SODDI image from http://excellentquotations.com/Images-EQ/quotesImages/39354-ExcellentQuotations.com-Judge-Judy.jpg

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

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US v. Espinoza, No. 16-50033 (1-22-18)(Paez w/Berzon & Christen). 

The 9th reverses a conviction due to the court's error in precluding third-party culpability evidence.  The court used the standard of whether substantial evidence existed tending to directly connect the person with the actual commission of the offense. Rather, under US v. Armstrong, 621 F.2d 951 (9th Cir. 1980), the standard articulated is:  "Fundamental standards of relevancy, subject to the discretion of the court to exclude cumulative evidence and to insure orderly presentation of a case, require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged."

Here, the defendant argued a "blind mule" defense.  She always said she was innocent. She had evidence that cast suspicion on a next door neighbor in Mexico.  The court should have allowed the evidence and it was not harmless.

Congrats to Michael Marks, Deputy Federal Public Defender, Cal S (San Diego).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/22/16-50033.pdf

Case o' The Week: One is the Loneliest Number - Brown, Taylor Sentencing, and Washington "Solo" Conspiracies

Q: What do you call a “conspiracy of one?”

A: Weird. (And not a federal predicate).

  United States v. Michael N. Brown, 2017 WL 414106 (9th Cir. Jan. 16, 2018), decision available here.

Players: Decision by Judge Clifton, joined by Judge Clifton. Concurrence by Judge Owens. 

  Another admirable win for former CD Cal AFPD Davina Chen.

Facts: Brown plead guilty to a § 922(g) count. Id. at *1. The district court held that a Washington “conspiracy to distribute methamphetamine” conviction was a “controlled substance offense” under USSG § 2K2.1(a)(4)(A). Id. 

  That prior put the Guideline range at 63-78 months -- Brown was sentenced to five years. Id.

Issue(s): “In calculating the appropriate range . . . the district court determined that a base offense level of twenty applied because Brown’s previous conviction for drug conspiracy under Washington state law qualified as a “controlled substance offense.” Id. at *1.

Held: “We conclude that the conviction does not so qualify because the Washington drug conspiracy statute is not a categorical match to conspiracy under federal law. We reverse and remand for resentencing.” Id. at *1.

Of Note: The problem with this prior? The Washington legislature stretched their conspiracy statute to encompass a “conspiracy” involving a defendant and a cop. Id. at *4. 

  By contrast, under federal law, a defendant cannot conspire with a federal agent or informant. Id. at *3. The Washington state statute thus encompassed more conduct than the federal – not a categorical match, id. at *3, and “explicitly more broad than the generic federal definition.” Id. at *5.

  Note the hard work of the ED and WD FPDs to lay the foundation for this Ninth win, with three district court decisions holding that this prior didn’t qualify. Id. at *3 & n.2.

How to Use: Brown is a valuable Taylor decision beyond the narrow holding on this Washington prior. For example, consider Judge Clifton’s welcome discussion of “harmless” error, for this below-guideline sentence. Id. at *6 (“The same sentence would have represented an upward departure of nineteen months from the upper end of the range if calculated without treating Brown’s prior conviction as a conviction for a controlled substance offense. The use of an incorrect starting point and the failure to keep the proper Sentencing Guidelines range in mind as the sentencing decision was made constituted “a significant procedural error,” and the case must be remanded for resentencing.”)

                                               

For Further Reading: Judge Owens again complains that federal sentencing is “Taylor Upside Down” – where federal defense counsel argue that state statutes have broad criminal liability, and AUSAs argue state criminal statutes are narrow. Id. at *6 (Owens, J., concurring). 

  However, the “Upside Down” analysis in this concurrence is, respectfully, backwards. In reality, federal defense counsel are merely pointing out what our county comrades know well: state prosecutors, courts and legislatures routinely stretch criminal liability well beyond a statute’s plain reading, to try to salvage and save state convictions. The results are mutated, deformed rules of criminal liability that make lousy "generic" matches. Viewed this way, the Taylor analysis is best described as the great karmic comeuppance for strained readings of state criminal codes (interpretations, incidentally, that are usually concocted by D.A.s).

  Frustrated with the complexity of the Taylor analysis (and the counter-intuitive positions the parties must take), Judge Owens argues that the feds should scrap the whole approach and switch to “length of previous sentences” to determine priors that qualify for federal sentencing. Id. at *6.

  As long as we’re asking “the Supreme Court or Congress” to “junk this entire system,” id. at *6, a better change would be get away altogether from smuggling criminal history into offense levels as a predictor of recidivism. Priors make really lousy recidivism-proxies for offense level calculations (like Section 2K2.1, or Career Offender).  Beyond the complex Taylor sentencing goo caused by this use of prior convictions, the Guidelines’ use of priors to determine offense levels exacerbates racial disparity in federal sentencing. 

  For a thoughtful piece on this unjust reality, see “Criminal Enhancements Sourcebook,” available here (“Besides reducing perceived unfairness, efforts to reduce disproportionality in prison populations caused by criminal history enhancements are likely to have other, more concrete beneficial effects. The fastest and least expensive way to achieve such reduction will be to reduce or eliminate criminal history rules that have a disparate impact on nonwhite offenders, causing fewer of them to be sent to prison and/or shortening their prison terms.”)

“Conspiracy of One” image from https://www.sentientproductions.com.au/wp-content/uploads/2017/05/Logo-CoO.png

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

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US v. Brown, No. 16-30218 (1-16-18)(Clifton w/Wardlaw; Owens concurring). 

The 9th vacates a sentence for a felon in possession and remands.  The err was in the district court determining that a base offense level enhancement applied because a previous conviction for a state drug conspiracy (Washington) qualified under state law as a "controlled substance offense." Under the categorical approach, this state conspiracy was not a match for a federal conspiracy because, under state law, a defendant can be convicted if the only alleged coconspirator is a law enforcement officer or an agent.  Under federal law, a defendant cannot be convicted if the only alleged coconspirator was a law enforcement officer or agent.  The state legislature's amendment to the state general conspiracy code also applies to the drug conspiracy code. The error was not harmless.

Owens, concurring, bemoans the categorical approach.  Although precedent compels this result, he describes how categorical approaches stray from common sense.  He advocates a change to length of sentences rather than labeling.

Congrats to stalwart CJA lawyer Davina Chen (Cal Central) for another victory.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/16/16-30218.pdf

US v. Depue, No. 15-10553 (1-11-18)(Callahan w/Tallman & Ezra).

No “Twelve Angry Men” scenario here. The 9th affirms convictions for a mortgage fraud scheme, and finds no abuse of discretion when the court dismissed a juror. The juror (No. 9) had stated that he was unwell, claimed he had been poisoned by another juror, and was “odd man out.” Under Fed R Crim P 23, a court can dismiss a juror for “good cause,” which can include “physical incapacity.” The 9th concluded the court here dismissed the juror for “physical incapacity,” and not for his views on the case. The Court focused on the juror’s physical symptoms, emphysema, and his feeling unwell. The statement “odd man out” was not delved into by the Court and was not the reason the juror was dismissed. The 9th also affirmed the sentencing (262 mos.) based on the amount of loss because of the failure to object. (Defendant represented himself Pro Se, and made no opening, closing, objections, or called any witnesses).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/11/15-10553.pdf

US v. Hulen, No. 16-30160 (1-10-18)(Clifton w/Wardlaw & Owens).

The 9th affirms a SR revocation based on the defendant's admissions during mandatory sex offender treatment.  "There was no violation of Hulen's right against self-incrimination because a proceeding to revoke supervised release is not a criminal case for the purposes of the Fifth Amendment." (11). SR gets due process lite--it is not a criminal case, with the full panoply of constitutional protections; it is not new punishment for a new crime. Rather, it is conditional liberty.  The right against self-incrimination only extends to prohibit the use of an admission in a criminal case.  There was no new crime charged here.

The case contains a listing of rights not afforded a defendant on SR: self-representation does not apply; right of confrontation does not apply; corroboration of a confession is not required; collateral estoppel does not bar a subsequent revocation after an acquittal. (8).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/10/16-30160.pdf

Case o' The Week: Seeing Hulen Rouge - Self-incrimination and Supervised Release Violations

   Tell clients to be forthcoming with their treatment providers, while on supervised release.

  (They'll feel good about themselves while serving their revocation sentences).

United States v. Hulen, 2018 WL 343759 (9th Cir. Jan. 10, 2018), decision available here.

  

Players: Decision by Judge Clifton, joined by Judges Wardlaw and Owens. Hard-fought appeal by AFPDs David Merchant and Josyln Hunt, Federal Defenders of Montana.

Facts: Hulen was on supervised release for failure to register as a sex offender. Id. at *1. Hulen admitted to his treatment provider that “he was not doing all he could do to progress in treatment.” Id.

  The provider told Hulen to write down his transgressions, then promptly shot Hulen’s list to the Probation Officer. Id. The P.O. filed a Form 12. Id.

  [NB: Hulen did not admit to new crimes in his list].

  Hulen conceded violations in the district court, was revoked, and sentenced to six months custody. Id. at *2.

Issue(s): “Hulen argues that the use of his statements against him in the revocation proceeding by the district court violated his right against self-incrimination under the Fifth Amendment.” Id. at *1.

Held: “We hold that the district court did not violate Hulen’s right against self-incrimination because that right extends only to prohibit the use of an admission in a criminal case. A proceeding to revoke supervised release is not a criminal case for purposes of the Fifth Amendment right against self-incrimination. Accordingly, we affirm the decision of the district court.” Id. at *1.

  “A revocation proceeding is not a new criminal proceeding, but is instead part of the “matrix of punishment” arising out of the original crime . . . . Thus, the full panoply of rights due a defendant in a criminal proceeding does not apply to revocations. . . . Revocation deprives a probationer only of the conditional liberty properly dependent on observance of special restrictions. . . . . The Fifth Amendment does not provide a right to avoid the consequences of violating those special restrictions. Accordingly, a revocation proceeding is not a criminal case for purposes of the Fifth Amendment right against self-incrimination.” Id. at *4 (citations omitted).

Of Note: In Hulen, the Ninth recites the constrained constitutional rights afforded in violation proceedings, then extends these crabbed approaches to the Fifth Amendment. See, e.g., id. at *3 (“We held that the Sixth Amendment right of confrontation does not extend to revocations in United States v. Hall, 419 F.3d 980, 985–86 (9th Cir. 2005)). 

  Yet in UnitedStates v. Avila, the Ninth just reversed a revocation when a defendant wasn’t afforded confrontation in a contested hearing. No. 17-100065, (Ninth Cir. Nov. 17, 2017) (mem.) (“Under Morrisey v. Brewer, 408 U.S. 471 (1972), every release is guaranteed the right to confront and cross-examine adverse witnesses at a revocation hearing, unless the government shows good cause for not producing the witnesses.”) (citation and quotations omitted).

  What gives, with Hulen and Avila?

  A learned colleague flagged a difference as the origins of the Confrontation Clause right: Hulen is discussing Sixth Amendment Confrontation, and Avila, the due process confrontation right.

  The nutshell? Hulen’s primer on S/R misery is a little more nuanced than at first it may first appear.

How to Use: There is a difference, the Ninth assures us, between conduct leading to a new criminal charge, and a violation of the supervised release “matrix of punishment.” That difference probably eludes Hulen, as he sits in his jail cell.

  Note, however, also the major caveat in Hulen (needed to try to distinguish a long string of contrary Ninth decisions on self-incrimination for supervised release violations): if the conduct involves (or potentially involves) a new crime, the Fifth’s protections against self-incrimination (may) kick in. As Judge Clifton (sort of) concedes, “If an effort had been made to charge and convict Hulen for a new crime based on his admissions, he would presumably be able to claim the benefit of the Fifth Amendment.” Id. at *4.

                                               

For Further Reading: President Trump has placed three of the four U.S. Attorneys in California. They’ll hang onto their interim gigs if re-upped by the district courts, until they are ultimately confirmed by the Senate (likely outcomes, for these three experienced appointees).
  The odd one out? N.D. Cal.

  In the Northern District, Acting US Attorney Alex Tse will hold down the fort until the Trump nominee is announced. See article here. 

Image of “honesty” quote from http://www.azquotes.com/picture-quotes/quote-honesty-is-the-best-policy-but-insanity-is-a-better-defense-steve-landesberg-53-10-67.jpg

Image of the four Federal Districts within the State of California from http://smarthr.blogs.thompson.com/files/2012/02/jurisdiction-map-rev.jpg

Steven Kalar, Federal Public Defender, Northern District of California

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Case o' The Week: Ninth Tuts Hut Scuttlebutt - Wells and FRE 404(b) Evidence

What happens on Attu, stays on Attu . . .

United States v. James Michael Wells, 2017 WL 6459199 (9th Cir. Dec. 19, 2017), decision available here.

Attu Island, Alaska

Ed. note: A slow week for decisions is a good opportunity to revisit the Ninth's recent Wells decision, for its analysis of FRE 404(b). 

Players: Decision by visiting DJ Walter, joined by Judges Tashima and Nguyen. Concurrence by Judge Nguyen. Partial concurrence and dissent by Judge Tashima. 

  Impressive victory for former CD Cal AFPD Davina Chen.

Facts: Wells worked at an Alaskan Coast Guard facility on Kodiak Island. Id. at *2. In April 2012, two of Wells’ co-workers were found, murdered, at the facility.

  On the morning of the murders, Wells had left voicemails on the victims’ phones, explaining he’d had tire problems. Id. Surveillance footage, a history of workplace disputes, and suspicions about the damaged tire and alibi eventually lead to Wells’ indictment for the murders.

  At trial, the government introduced testimony that Wells had disobeyed a direct order from a supervisor in 2003, and had hauled back a fiberglass hut that was having problems, from Attu, a remote island on the Aleutian Chain. Id. at *20.

  The government argued that this 2003 “hut” episode was the best example of Wells’ “narcissistic traits” and was “the height of ego” – consistent with personality-profile testimony the government’s “expert” had offered. Id. The court found this “hut” episode was “inextricably intertwined” with the charged events, “relevant to motive,” and “help paint a picture of the work environment.” Id.

  Wells was convicted.

Issue(s): “Wells challenges a significant amount of testimony as impermissible character and other act evidence, under Federal Rules of Evidence 404(a) and 404(b), respectively. . . .” Id. at *17.

Held: “For the reasons that follow, we find that the district court erred in admitting the 2003 incident, as it was neither inextricably intertwined nor permissible motive evidence under Rule 404(b)(2).” Id. at *20.

  “[United States v.] Dorsey, [677 F.3d 944 (9th Cir. 2012)], illuminates the difference between finding that evidence is inextricably intertwined, and therefore not subject to Rule 404(b) analysis, and finding that evidence falls under one of Rule 404(b)’s permissible uses, namely to prove motive. In determining whether particular evidence is necessary to the prosecution's “coherent and comprehensible story,” we ask whether the evidence bears directly on the charged crime. 677 F.3d at 952 (internal quotation marks omitted). “There must be a sufficient contextual or substantive connection between the proffered evidence and the alleged crime to justify exempting the evidence from the strictures of Rule 404(b).” . . . Here, none of the other acts evidence bears ‘directly’ on the charged crimes, or has the requisite “contextual or substantive connection” to be categorized as inextricably intertwined. It was error for the district court to admit it as such . . . (second citation omitted).” Id. at *21.

Of Note: As noted in an earlier COTW, this is a dense decision with many valuable nuggets to mine. Not discussed here is another great holding, finding a government shrink’s testimony about Wells’ personality “profile” was erroneous. Id. at *16. That expert error, combined with this FRE 404(b) error, earned a reversal on a double-homicide conviction.

  An important decision well worth a close read, on many fronts.

How to Use: Wells is a welcome limitation on that dangerously mushy “inextricably intertwined” FRE 404(b) theory used to smuggle in a defendant’s prior bad acts.

  The decision also rejects the government’s reliance on this workplace dispute to show Wells’ motive (another 404(b) theory of admission). There was “no logical basis,” the Ninth observes, to explain how a beef with a different supervisor, bearing no relation to either victim, from a decade before the murders, showed Wells’ intent for these homicides. Id. at *21. Instead, the government’s “motive theory was couched in the broadest possible terms in order to sidestep evidentiary hurdles.” Id.

  Turn to the great language in Wells to fight the government’s inevitable blunderbuss barrage of FRE 404(b) theories.

For Further Reading: Ten Ninth judges appointed by Democrats (out of 29 authorized judgeships), are currently eligible for senior status.

  For a fascinating (albeit slightly right-leaning) analysis of President Trump’s potential impact on the Ninth (and other federal courts of appeal), see the National Review article here. 

Image of Attu Island from https://i.pinimg.com/originals/f4/9d/4c/f49d4cd05431305559d319fb26d8d45a.jpg

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

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Hernandez v. Chappell, No. 11-99013 (12-29-17)(Reinhardt w/Pregerson; dissent by Nguyen).

The district court already had found IAC in the sentencing phase of this capital habeas for failure to investigate and present a diminished mental capacity defense. The State did not appeal the court’s decision to set aside the death penalty. As for the guilt phase, the district court had found no prejudice. The diminished capacity evidence, in the court’s opinion, would not have changed the guilty verdict given the facts, the multiple murders, rapes, and the detailed confession.

On appeal, the panel found IAC in the guilt phase. A majority, which Pregerson helped constitute before his death, also found prejudice. The majority opinion goes through the extensive evidence of diminishment due to organic brain damage, mental illness, and horrid abuse and concludes that one juror probably would have been swayed.

Dissenting, Nguyen agrees with IAC but would not find prejudice given the facts and actions supporting guilt.

Congrats to Tracy Casadio and Margo Rocconi, Deputy FPDs, Cal C. (Los Angeles).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/29/11-99013.pdf

US v. Aldana, No. 16-50372 (12-29-17)(Ikuta w/Fletcher & Barker).

The 9th affirms a conviction for attempted illegal entry at a time and place other than designated by immigration officials under 8 U.S.C. § 1325. The 9th rejects the argument that entry “designated” by immigration officials can occur in an entire geographic region rather than at a specific immigration facility.  The 9th examined the text, legislative history, and purpose of the statute to support its decision of why a defendant must go to a specific building or facility to enter this country.

Interesting argument by Doug Keller, Deputy Federal Defender, Cal S.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/29/16-50372.pdf