US v. Kootswatewa, No. 16-10228 (3-23-18)(Warford w/Wallace & Sands)(Note: this is an AZ FPD case).

The 9th affirms convictions for the agg sexual abuse of a developmentally delayed child and a felony offense against a child while a registered sex offender.

In affirming, the 9th rejects two evidentiary issues and one misconduct allegation. At trial, the defense argued misidentification and contended that hearsay statements allowed were error. The 9th held that the admission of statements to a nurse practitioner were allowed under the medical diagnosis exception. Adequate foundation was laid. The 9th recognizes that some courts do not allow the identification of the perpetrator under this exception. However, the 9th does.

The victim’s prior statements to the officer, made soon after the attack, were admissible to rebut the defense attack that the statement had been coached by the mother. Although there were differences between the testimony and the statement, the prior statement was proper as it rebutted the charge the entire episode was fabricated. 

In closing, the prosecutor did not improperly assume the voice of the victim. The prosecutor started with a paraphrase, but quickly identified the source.  The prosecutor did say that the victim stated the defendant “lured” her to the trailer.  The victim actually stated that the defendant “took” her to the trailer. The error was harmless.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/23/16-10228.pdf

Case o' The Week: Gov't Adores our Opened Doors - Kootswatewa and Hearsay on Rebuttal

  Opened doors can be scary.

United States v. Kootswatewa, 2018 WL 1439610 (9th Cir. Mar. 23, 2018), decision available here.

Players: Decision by Judge Watford, joined by Judge Wallace and visiting DJ Sands. Hard fought appeal by D. Az. AFPD Michael Burke.

Facts: Kootswatewa was charged with sexual abuse of a child. Id. at 2. The child, K.C., was a developmentally disabled 11 year old girl that lived on the same reservation as the defendant. Id. After the assault, K.C. made statements to a police officer. Id.

  At trial, the defense questioned K.C.’s reliability, describing her motives to fabricate the story and exploring coaching by K.C.’s mother. Id. at *4. In the government’s rebuttal case, the court allowed testimony from the officer about statements K.C. had made to him shortly after the abuse. Id. at *4.

  Kootswatewa was convicted and sentenced to forty years. Id. at *2.

Issue(s): “We turn . . . to Kootswatewa’s objection to the admission of the officer’s testimony concerning the statements K.C. made to him shortly after the abuse occurred. . . . The district court admitted K.C.’s statements under Rule 801(d)(1)(B)(i), which renders admissible a prior statement that is consistent with the declarant’s in-court testimony and is offered ‘to rebut an express or implied charge that the declarant recently fabricated [her testimony] or acted from a recent improper influence or motive in so testifying.’” Id. at *4, quoting Fed.R. Evid. 801(d)(1)(B)(i).

Held: “The district court properly exercised its discretion in admitting K.C.’s statements to the officer.” Id. at *4. “K.C.’s prior statements to the officer were admissible to rebut defense counsel’s suggestion that K.C.’s in-court testimony had been tainted by a ‘recent improper influence or motive’ – namely, K.C.’s mother alleged coaching.” Id. at *4.

Of Note: Kootswatewa is a disappointing, but important, decision on the admission of hearsay testimony under Federal Rule of Evidence 801(d)(1)(B)(i). Appellate counsel admirably slugged away at each requirement of this “rebuttal” hearsay evidence, and the Ninth addresses the rule in depth.

  First, to be admissible, this evidence has to have occurred before the alleged motive to fabricate arose. Id. at *4. Judge Watford finds that requirement met here, because the statements to the officer happened before K.C. spoke to her mother.

  Kootswatewa also argued that the defense had a different theory on K.C.’s motive to lie: that she had gone where she was told not to go by her mother, and fabricated the assault to cover for herself and avoid discipline. Id. at *4. That motive to lie pre-dated the statements to the officer, so why were the cop-statements admissible? Judge Watford concludes that prior statements for rebuttal don’t have to address all of the defense theories: it is enough that the statements properly went to one of them (here, the theory that K.C. was coached). Id. at *5.

  “Opening the door” is often a dangerous possibility for the defense – and here, the Ninth allowed a barn door to be opened with these statements to the officer. Study Kootswatewa when weighing the risks and dangers of attacking the credibility of government witnesses, and mulling the government’s rebuttal case.

How to Use: Maybe there was error, here: facts in K.C.’s statements to the cop, and her testimony at trial, were not consistent. Id. at *5. The Ninth looks at the evidence in this case, and concludes that “any error in admitting the statement was harmless.” Id.

  This passage of Kootswatewa is worth a close read – inconsistent facts in the pretrial statement and the trial testimony may help keep 801(d)(1)(B)(i) evidence out of your trial.

                                        

For Further Reading: In 2016, Professor Kilkpatrick forcefully warned that amendments to FRE 801 would improperly expand the use of prior statements as substantive evidence in rebuttal. See Kirkpatrick, Laird C., Prior Consistent Statements: The Dangers of Misinterpreting Recently Amended Fre 801(D)(1)(B)* (2016). 24 Trial Evidence 12 2016; GWU Law School Public Law Research Paper No. 2016-40; GWU Legal Studies Research Paper No. 2016-40. Available at SSRN: http://ssrn.com/abstract=2836114

  Read this short piece, and read Kootswatewa: the Prof was, sadly, spot on.

Image of doors from https://www.gizmodo.com.au/2017/08/i-survived-a-trip-through-the-neibolt-street-house-from-stephen-kings-it/

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

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US v. Paixao, No. 16-50121 (3-22-18)(Graber w/Hurwitz & Korman).

The 9th affirms a conviction for taking federal property from an organization receiving more than $10,000 in annual federal benefits. The opinion turns on what defines “benefits” under 18 USC 666. The organization here was a veterans’ foundation established to train veterans to get into the film industry. The defendants misused funds for personal costs. The argument was that the benefits provided — tuition reimbursement for educational training, including to the foundation — were not benefits that allowed prosecution. The 9th concluded that a jury could find such benefits were provided, and that the imposed regulations for such grants suggest benefits.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/22/16-50121.pdf

Case o' The Week: Defense Loses the Match Game - Verduzco-Rangel, Cal H&S 11378, and Agg Felonies

 What if you think you’re selling meth, but the drug is really Chorionic Gonadotropin?

  No worries, from the Feds (unless, of course, you’re an alien).

United States v. Verduzco-Rangel, 2018 WL 1220747(9th Cir. Mar. 9, 2018), decision available here.

Players: Decision by visiting Sr. D.J. Rakoff, joined by Judges M. Smith and Friedland.

Facts: Verduzo-Rangel was convicted of 8 USC § 1326. Id. at *1. The agg felony was a prior conviction for possession for sale of meth, in violation of Cal. Health & Safety Code § 11378. Id.

  Verduzo-Rangel’s underlying indictment and plea agreement established that he had been previously convicted of trafficking meth (a controlled substance under both state and federal law). Id. at *2.

Issue(s): “Verduzco now argues that his conviction was not in fact an aggravated felony. . . .” Id. at *1.

  “For purposes of this appeal, the Government concedes the first two prongs [of the collateral attack requirements of § 1326(d)], so the only question is whether the removal was fundamentally unfair.” Id.

  “Verduzco . . . argues that his California conviction is not categorically an aggravated felony because section 11378 remains broader than federal law as to defendants’ beliefs about the kind of substance in which they were trafficking. Under federal law, a person actually selling cocaine who thought he was selling baking soda does not possess the required mens rea to be guilty of drug trafficking . . . . Under section 11378, defendants can be found guilty even if they were mistaken about what specific substance was being trafficked, as long as the substance in which they intended to traffic is in fact controlled under California law . . . .  This means that a person who believed she was trafficking in chorionic gonadotropin but was in fact trafficking in methamphetamine would violate California law but not federal law. Verduzco argues that section 11378 is thus not categorically a drug trafficking crime under the second route laid out in Rendon.” Id. at *2 (internal quotations and citations omitted).

Held: “Rather than contesting this point, the Government argues that it is irrelevant because a conviction under section 11378 is an aggravated felony under the first route, at least where, as here, the defendant was trafficking a substance (methamphetamine) that is also controlled by federal law. We agree, and thus need not consider whether Verduzco’s conviction would also qualify as an aggravated felony under the second route identified in Rendon.” Id. at *3 (emphasis added).

Of Note: The core issue in Verduzco is a fight over Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir. 2008).

  Verduzco argued that the first route of Rendon (that is, a state offense is an agg felony if it contains a trafficking element) should include the mens rea element found in federal law: that a defendant has to intend to traffic a substance controlled by federal law. Id. at *3. It is an interesting argument, and Judge Rakoff labors to reject it (and to distinguish the Ninth’s recent decision in Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017)). Id. at *3 & n.3.

  The result? In the Ninth Circuit, a state drug trafficking offense can be a “categorical match” for the “generic” federal drug trafficking requirement, even if the state statute prohibits a drug that isn’t controlled by the feds. Id. at *3.

How to Use: Despite the rather confusing holding of Verduzco, note an important limitation. In this case, the record established that the defendant had actually been convicted of trafficking meth. Judge Rakoff expressly includes this limitation in the holding: “where the record of conviction establishes that the substance involved is federally controlled.” Id. at *4. 

  In a case where it is unclear what substance was involved in a § 11378 prior, there might remain some play in an agg felony challenge.

                                               

For Further Reading: Be honest - do you ever grapple with ambiguous language in a Guideline, sigh, and wonder “why the hell did [the Sentencing Commission] do it this way? It’s ridiculous!”

  You’re in excellent company -- Judges Berzon and Callahan feel precisely the same way (the above is a quote!)

The Nickles III Ninth Circuit panel

  For a remarkably candid insight into the minds of frustrated appellate judges drowning in categorical goo (and a very important Cal. Penal Code § 211 discussion), see the recent Nickles, III argument, available here, at 10:16.

Image of chorionic gonadotropin from https://www.testosterone.me/hcg-injections

Image of Judges Wallace, Berzon, and Callahan, and of AFPD Hanni Fakhoury, from the Nickles III argument at https://www.youtube.com/watch?v=EbutugiR21o&t=0s&index=51&list=UUeIMdiBTNTpeA84wmSRPDPg

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

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Case o' The Week: Mistakes Were Made - Minor Role Adjustments and Amendment 794

  Errors not cool, for cocaine mule.

United States v. Aguilar Diaz, 2018 WL 1220508 (9th Cir. Mar. 9, 2018), decision available here.

Players: Decision by Judge Christen, joined by Judges Graber and Murguia. Welcome win for AFD Samuel Eilers, Federal Defenders of San Diego, Inc.  

Facts: Aguilar Diaz pleaded guilty to importing kilos of cocaine and heroin from Mexico. Id. at *1.

 At sentencing, the defense explained that he had only been involved in two prior crossings: trial runs for this offense. Id. He was only going to get paid a grand for his role as a courier. Id. at *2.

  Aguilar Diaz sought § 3B1.2(b) minor role adjustment articulating the five factors in the Commission’s clarifying Amendment 794. Id. The district court adopted the government’s argument “with little elaboration and denied the minor-role adjustment.” Id.

Issue(s): “[Aguilar Diaz] appeals the . . . denial of a minor role adjustment for his sentence pursuant to . . . § 3B1.2(b).” Id. at *1.

Held: “[W]e vacate and remand for resentencing.” Id. “Although the district court has considerable latitude in ruling on minor-role adjustments . . . on this record we must remand for re-sentencing because the decision to deny the adjustment rested on incorrect interpretations of the § 3B1.2 Guideline and Amendment 794. The difficulty is that the district court adopted the government’s argument with little elaboration, and the government’s argument included an incorrect interpretation of § 3B1.2 and Amendment 794. First, the government relied on the fact that Aguilar Diaz agreed to accept money in exchange for transporting drugs, but ignored that his compensation was relatively modest and fixed. There was no evidence that Aguilar Diaz had a proprietary interest in the outcome of the operation or otherwise stood to benefit more than minimally. Second, though the government correctly identified [two other participants in the smuggling] as the comparison group, it did not account for Aguilar Diaz’s limited understanding of the overall ‘scope and structure of the criminal operation.’” Id. at *6.  

Of Note: The old minor role adjustment guideline had created a circuit split. Id. at *3. Amendment 794, effective November 1, 2015, resolved that split by specifying the pool of folks to whom the defendant is to be compared: other participants in the same criminal scheme, not hypothetical typical offenders. Id. In a careful analysis, Judge Christen clearly lays out the history of the guideline and Amendment, and discusses the (non-exhaustive) list of five factors a district court is to consider when deciding whether to grant a minor-role adjustment. Id.

  Aguilar Diaz is worth a close read when arguing for minor role – particularly the Ninth’s favorable recitation of the Commission’s lament that “minor role adjustments had been applied inconsistently and more sparingly than the Commission intended.” Id. at *4 (quoting USSG § 3B1.2 cmt. n.3(C)) (emphasis added).

How to Use: Wait - how did this reversal happen, when it is black letter law that a district court doesn’t have to “tick off the factors on the record to show that it considered them?” Id. at *4. The defense got a significant assist from the AUSA in this appellate win. At sentencing, the government incorrectly characterized the guideline and amendment’s application. The sparse sentencing transcript didn’t make clear that the District Court understood those errors and rejected them. Id. at *6.

  This holding isn’t exactly a new rule, but it is welcome precedent that highlights a path to appellate victory. When the government bumbles the guidelines and the district court doesn’t expressly reject the mistake, use Aguilar Diaz as your hook for reversible appellate error.

                                               

For Further Reading: President Trump has nominated four Sentencing Commissioners. Like prisoners in a chain gang, the fates of these candidates are linked -- we are told that the full slate for this bipartisan commission will rise or fall together in their Senate confirmations.

  Judge “Hang ‘em High” Hudson and Adjunct Professor William Otis are two Commission candidates that have elicited strong views. The pair “could make it harder for the full slate of four to win swift U.S. Senate confirmation.” See article here. 

  Recall that it takes four Commissioners to dance the Guideline tango: we’re currently one Commissioner shy. See USSG Web Page here. 

  With a kipped quorum, and controversial candidates complicating confirmations, the Commission’s main work may be earnest studies and frequent Tweets, for awhile. See USSG Twitter page, available here.  

Image of mule from https://en.wikipedia.org/wiki/Mule#/media/File:Juancito.jpg, By w:User:Dario u / User:Dario urruty (Own work (w:User:Dario u / User:Dario urruty)) [Public domain], via Wikimedia Commons

Image from “O’ Brother Where Art Thou” from http://deepintomovies.blogspot.com/2011/05/o-brother-where-art-thou-2000.html

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

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US v. Adkins, No. 15-10566 (3-5-18)(Nelson w/Schroeder & McKeown).

The defendant was convicted of a violent crime in aid of racketeering under 18 USC 1959. As a basis, the indictment alleged an assault under the Hawaii code. Giving the jury instructions, the court adopted the federal definition of “knowingly” rather than the state definition. The state definition also contained a self-defense element. The 9th found this to be error, siding with the Second Circuit. However, any error was harmless. The defendant as part of a prison gang beat up the victim without provocation for a drug debt owed. The 9th also upheld defendant’s sentence as a career offender under the residual clause. Although the residual clause was deleted by the Sentencing Commission, it was not retroactive. Beckles held that Johnson’s invalidation of ACCA’s residual clause was not applicable to the guidelines. Finally, the 9th found that the defendant’s prior state convictions of false imprisonment and burglary in the first degree were crimes of violence.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/05/15-10566.pdf

US v. Gordon, No. 16-30299 (3-2-18)(M. Smith w/Murguia & Robreno).

The 9th holds that a prior Washington conviction for attempted first degree murder is a "crime of violence."  As such, the 9th affirms the denial of defendant's motion to dismiss his conviction for possessing body armor by a violent felon under 18 USC 931(a)(1) and 924(a)(7) and rejects the defendant's interpretation of the guidelines as to the offense.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/02/16-30299.pdf

 

Case o' The Week: Ninth Not OK with No Mens Rea - Evans and Conditions of Supervised Released

  Probation’s “guilt by association” a Ninth no-go.

United States v. Evans, 2016 WL 2018 WL 1074736 (9th Cir. Feb. 28, 2016), decision available here.

Players: Decision by Judge M. Smith, joined by visiting District Judge John Bates. Dissent by Judge Ikuta.

 Admirable win for AFPDs Shilpi Agarwal and Appellate Chief Carmen Smarandoiu, N.D. Cal Federal Public Defender.

Facts: Evans, a felon, was shot five times. Id. at *2. Evans shot back at his assailant as the assailant fled. Id.

  Evans was convicted of being a felon-in-possession, and put on supervised release. Id.

  One condition of supervised release warned that if Evans was around gang members, the court would presume he was participating in gang activities. Id. at *5.

Issue(s): “Evans argues that the district court erred . . .  in imposing certain conditions of supervised release.” Id. “Evans argues that all of the challenged conditions are unconstitutionally vague.” Id. at *3.

Held: “[One condition] reads: ‘If [Evans] is found to be in the company of [gang members] or wearing the clothing, colors or insignia of the Down Below Gang, or any other gang, the court will presume that the association was for the purpose of participating in gang activities.’ This presumption explicitly removes the requirement that the government prove mens rea in a future revocation proceeding and therefore, if allowed to stand, would render the condition vague and overbroad . . . . Accordingly, . . . we remand for the district court to strike this final sentence.’ Id. at *5 (internal quotation and citation omitted).

Of Note: Evans also disputed Probation’s allegation that he previously had a gun. The court failed to resolve that dispute. Id. at *7. This unresolved dispute falls into an interesting procedural hole.

  Federal Rule of Criminal Procedure 32 requires a court sentencing on substantive counts to resolve factual disputes (or expressly deem the irrelevant). Id. at *7. Rule 32.1, however, covers revocation proceedings. Rule 32.1 doesn’t discuss matters that have to be resolved by the sentencing court.

  Does a sentencing court have to resolve disputes, or dismiss them as not relevant, at a revocation sentencing? While that question was squarely, the Ninth dodged the question in Evans. Id. at *7.

  Flag this dispute for a future fight –it is illogical that revocations aren’t entitled to the same procedural protections as “normal” sentencings.

How to Use: The core issue in Evans was not supervised release. The big fight was whether the Court correctly increased Evans’ substantive sentence for using a firearm in the commission of an aggravated assault under USSG § 2A2.2(a) and (b)(2)(A). Id. at *2. While Evans argued that the firing of his gun was in self-defense, the Ninth regrettably upheld the sentencing enhancement because the assailant was fleeing, after Evans had been wounded. Id.

  The opinion is still valuable, however. Judge Smith corrects the district court’s erroneous view of the burden for self-defense at sentencing. That burden properly rests on the government. Id. at *3.

  Invoke Evans to fight assault enhancements at sentencing. Though the government’s burden is admittedly by a preponderance of the evidence, id. at *3, it nonetheless remains a burden that the government must shoulder.

                                               

Georgetown Law Adjunct Professor William Otis

For Further Reading: Adjunct Professor William Otis has opined that it is “true” that “blacks and Hispanics are more violent than whites.” By contrast, the Professor asserts that “Orientals stay out of jail more than either whites or blacks [because] family life, work, education and tradition are honored more in Oriental culture than in others.” See “Crime and Consequences” blog here. 

  The Sentencing Commission, Professor Otis has explained, used to be the “900-pound gorilla of sentencing law.” After Booker, it is “an overfed lemur.” He wonders how long the Commission should survive, given its increasing irrelevance. See Congressional Testimony of William Otis, available here. 

  “By its incomprehensibly nonchalant attitude toward restoring the determinate sentencing system it was created to produce, the Commission has turned itself into an expensive anachronism. In the era of desperately needed government frugality, taxpayers shouldn’t have to continue to shell out millions for its sentencing suggestions.” Id. at 10.

  Last week, President Trump nominated Professor Otis to serve as a United States Sentencing Guidelines Commissioner. See NPR article here.  

Image of Probation Officers from http://tularecounty.ca.gov/probation/

Image of Adjunct Professor William Otis from http://www.slate.com/articles/news_and_politics/crime/2015/07/bill_otis_meet_the_last_man_standing_who_thinks_criminal_justice_reform.html

Image of overfed lemur from https://www.pinterest.com/mbrodzka1011/lemur/

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

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1. US v. Evans, No. 16-10310 (2-28-18)(M.  Smith w/Bates; dissent by Ikuta).

This involves SR standard conditions, which the 9th finds unconstitutionally vague.  The panel remanded to remove one condition and to get some clarity with others.  The SR standard condition #4 instructs to “meet other family responsibilities.” Does this mean to wash dishes, go to his child’s sports games, and other instances.  The panel notes the Commission has already omitted this condition and the court should do so here too.

As for #5, which requires “work regularly,” it can be vague.  Is it full time work, partial work, the same amount of work each week? The panel notes that the Commission means close to full time, but there is ambiguity. The condition is remanded to clear that up.

Condition #13 requires third parties to be notified of risks “occasioned” by the defendant’s criminal record or personal characteristics. The panel again is puzzled: whom must be notified? Friends, employers, coworkers, people he is standing in queue with? There must be further clarity and specificity.

The panel rejects other challenges and supposed procedural errors.

Dissenting, Ikuta argues that for three decades these conditions have not given rise to confusion, so why should the panel find vagueness now?  She asserts that the panel misinterpreted the void for vagueness doctrine. Ikuta says that rather than invalidating, the panel should wait for “as applied” challenges.

Congrats to Shilpi Agartala and Carmen Smarandoiu, AFPDs with Cal N (San Francisco).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/28/16-10310.pdf

2. US v. Campbell, No. 17-50140 (2-28-18)(Collins w/Wardlaw & Gould).

This is another SR challenge.  Defendant argues that the SR violation is jurisdictionally invalid as the violations (1) were not alleged prior to the expiration of the SR period; and (2) were not factually related to any matter raised before the court during the SR period.  Framing it this way, one can see how the 9th will rule—the district court is not empowered to reach back. The 9th recognizes that 18 USC 3583(i) extends the power of a Court to revoke, but does so only for a reasonable period necessary for the adjudication of matters arising before expiration, if a warrant or summons had been issued.

How does the govt respond?  First, it argues for waiver.  However, jurisdiction or authority is subject to de novo and the 9th considers it here.  Second, the govt argues that if the defendant is before the Court on any other matter, she is fair game for any subsequent violation. The 9th is uncomfortable with this outer limit interpretation.  Surely there has to be tie to matters raised in a proper summons or warrant.

The 9th found one violation here (perjury) outside of the matters raised before expiration.  However, it found another allegation related to an issue alleged during the SR term.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/28/17-50140.pdf