Case o' The Week: "Damned be him that first cries hold, enough" custodial time -- A Toughy for McDuffy

“Lay on, MacDuff, and damned be him that first cries hold enough.” MacBeth, Act 5, Scene VII.

United States v. McDuffy, 2018 WL 2207243 (9th Cir. May 15, 2018), decision available here.

Players: Decision by Judge N.R. Smith, joined by Judges Carlos Bea and D.J. Nye.  

Facts: McDuffy robbed a bank while brandishing a handgun. Id. at *1. When a customer tried to grab the gun,  McDuffy shot him in the chest (he later died from the wound). Id. McDuffy was arrested, charged with several federal bank robbery offenses, and went to trial. Id.

  One charge at trial was Section 2113(e) of Title 18; that statute requires “an enhanced punishment for an individual who kills a person in the course of committing a bank robbery.” Id. at *1. McDuffy argued for an instruction that would require the government to prove he “knowingly” killed a person in the course of a bank robbery. Id. (There was some evidence introduced at the trial that McDuffy accidentally discharged the gun. Id. at *1 & n.2.) The court rejected that request, and gave the standard general intent instruction instead. Id.

   McDuffy was convicted and, as required by § 2113(e), was sentenced to life. Id.

Issue(s): “McDuffy appeals, claiming the district court misstated the law when it instructed the jury that § 2113(e) applies to accidental killings.” Id. at *2.

Held: “On de novo review, we find § 2113(e) does not contain a separate requirement that the defendant intend the killing which results from his bank robbery (hereafter, the ‘mens rea requirement’). Thus, the enhancement applies even if a bank robber accidentally kills someone in the course of a bank robbery..” Id. at *2.
  “[T]he district court did not err in instructing the jury that § 2113(e) applies as long as the bank robber kills someone in the course of the bank robbery, regardless of whether the killing was accidental. The only mens rea required is the mens rea necessary to commit the underlying bank robbery.” Id. at *5.

Of Note: Troubling business, when a life sentence results from a general intent offense. The die was cast, however, in Dean v. United States, where CJ Roberts quipped: “Accidents happen. Sometimes they happen to individuals committing crimes with loaded guns.” 556 U.S 568, 570 (2009). 

  Judge Smith tracks the Dean holding requiring minimal mens rea showings for enhanced sentencing under Section 924(c)(1)(A)(iii). Id. at *3-*5. Dean, the Ninth concludes, controls the mens rea issue for Section 2113(e): Congress didn’t intend a higher scienter requirement for this statute, and the Ninth won’t either. Id. at *4. 

  Admittedly not a surprising result – the 7th, 8th, and 10th have the same rule – but disappointing nonetheless.

How to Use: Section 2113(e) is high-stakes sentencing statute for our clients. As held in McDuffy, the government has distressingly low mens rea requirements needed to obtain a life sentence. Note the death of a victim is not the only way to trigger that statute – the enhancement can also be imposed if the robber forces anyone to “accompany him without the consent of such person.” See Section 2113 here.  

  Judge N.R. Nelson explains that the Ninth doesn’t get to that aspect of the statute in McDuffy, id. at *2 & n.3: that fight may be available for another day (although a theory of “accidental” kidnapping does seem a tough row to hoe).

                                               

For Further Reading: In the old days, the “force and violence” prong of the federal bank robbery statute did not require intentional violent force. See e.g. United States v. Alewelt, 532 F.2d 1165 (7th Cir. 1976) (upholding conviction when a teller was pushed to the floor). 

  Bewilderingly, in United States v. Watson, 881 F.3d 782 (9th Cir. 2018), the Ninth nonetheless held that armed bank robbery is a crime of violence that meets Johnson requirements – the intentional use of violent force. 

  Let’s take Watson at its word, revisit bank robbery jury instructions, and require the new Watson / Johnson elements. For a historical look at the origins of the current, weirdly inconsistent status of bank robbery mens rea, see, “Take the Money and Split: The Current Circuit Split and Why Actual Force and Violence or Intimidation Should Not Be Required Under Section 2113(a) of the Bank Robbery Act,” available here. 

Image of MacBeth and MacDuff from http://betterlivingthroughbeowulf.com/trumps-misuse-of-macduffs-birth-language/

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

Case o' The Week: Ninth Affirms an LWOP Flop -- Briones and Miller Sentencing of Juvenile Offenders

“The majority accuses me of retrying Briones’s case rather than reviewing it as an appellate court should.  . . . But it is the majority that has invented a basis for the sentence which cannot be found in the record. The reason courts of appeals accord great deference to a district court’s sentencing decision is that “[t]he sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than ... the appeals court.” Rita, 551 U.S. at 357–58, 127 S.Ct. 2456. Unlike the majority, I would take advantage of that expertise by remanding for an actual determination of Briones's incorrigibility  rather than attempting to divine one by reading a transcript through squinted eyes.”

United States v. Briones, 2018 WL 2223819, *13 (9th Cir. May 16, 2018) (O’Scannlain, J., concurring in part and dissenting in part), decision available here.

The Hon. Judge Diarmuid O'Scannlain

Players: Decision by Judge Rawlinson, joined by D.J. Ezra. 

  Partial concurrence and partial dissent by Judge Diarmuid O’Scannlain.  

Facts: Briones was a gang leader. Id. at *1. When he was 17, he planned the robbery of a restaurant that resulted in a homicide (although he was not the shooter). Id. He also planned a Moltov cocktail assault on a rival gang member’s home: he didn’t throw them, no one was killed. Id.

  He was prosecuted on multiple offenses, and the Feds offered him 20 years -- the deal fell through because his father, a co-D, rejected the deal. Id.

  At sentencing, the district judge imposed a LWOP sentence. Id.

  Fifteen years later, the Supreme Court decided Miller v. Alabama, and rejected mandated LWOP sentences for juveniles. Id. Briones filed a Miller § 2255 petition. Id. The district court vacated the mandatory life sentence and conducted a re-sentencing hearing. Id.

  At the Miller resentencing, Briones described his parents’ drug and alcohol abuse, the family’s history of criminality, the challenges he faced as a Native American attending school off of the reservation, and his inability to challenge his father when the father rejected the twenty year deal. Id. at *2. Briones explained that he had started drinking at 12, and had used cocaine and LSD as a minor before the offenses of conviction. Id. at *3. The defense urged a thirty-year sentence.

  The district court instead re-sentenced Briones to life. Id. at *3.

Issue(s): “We must decide whether the district court appropriately rejected a juvenile offender’s argument that he should not receive a sentence of life without parole.” Id. at *1.

Held: “On this record, we cannot honestly say that the district court’s imposition of a sentence of life imprisonment was illogical, implausible, or without support in inferences that may be drawn from facts in the record. . . . In other words, no error occurred and without error there can be no plain error.” Id. at *8 (internal quotations, citations, and footnotes omitted).

Of Note: In an important concurrence and dissent, Judge O’Scannlain questions the majority’s tolerance of a sentencing that does not appear to have grappled with the core Miller question, and that again produced a life sentence for this juvenile offender. Id. at *9 (O’Scannlain, J., concurring in part and dissenting in part). The dissent is well-grounded in the Supreme’s admonition that LWOP sentences are barred “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. at *9 (citation omitted).

  Judge O’Scannlain explains that he “cannot agree . . . with the majority’s holding that the district court sufficiently considered Briones’s claim that he was not in that class of rare juvenile individuals constitutionally eligible for a life-without-parole sentence.” Id. at *9. He writes, “The majority reads too much into the district court’s cursory explanation of its sentence, and it divines that the district court must have adopted the rationale for its sentence suggested by the government on appeal. Although a sentencing court need not pedantically recite every fact and legal conclusion supporting its sentence, it must provide enough explanation for a court of appeals to evaluate whether or not the decision to reject a defendant's argument is consistent with law. The sparse reasoning of the district court in this case gives me no such assurance.” Id. at *10.

  To fully appreciate the significance of this remarkable dissent, take a look at another Judge O’Scannlain dissent, from an order denying rehearing en banc. United States v. Paul, 583 F.3d 1136 (9th Cir. 2009) (ord. denying rehearing en banc) (O’Scannlain, J., dissenting); see also blog entry here. The Paul dissent is written by a jurist who is generally skeptical of Circuit meddling with district court sentencing decisions.

  If Judge O’Scannlain is this troubled by Briones, the Ninth should be as well. This opinion cries out for en banc review.

How to Use: Have you represented a juvenile hammered with LWOP in federal court? If so, contact the FPD in your district – we can help explore options for a Miller § 2255.

                                   

For Further Reading: Who exactly are the “rare juveniles” the deserve LWOP sentences?

  For an accessible piece giving a general overview of that open question, see “Life After Miller: Retroactive Sentencing and the Rare Juvenile,” available here.

Image of the Honorable Judge Diarmuid F. O’Scannlain from https://www.nationalreview.com/2017/01/ninth-circuit-judge-oscannlain-senior-status/

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

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US v. Briones, Jr., No. 16-10150 (5-16-18)(Rawlinson w/Ezra; dissent by O'Scannlain)(Note: Az FPD represents a juvenile co-defendant on a similar Miller claim).

The 9th affirms a life sentence for a felony murder committed by the defendant when he was days shy of his 18th birthday.  The murder was of a Subway clerk; it was calculated and cold blooded; and it was part of gang activity.  Yet, since the defendant was sentenced to life in 1997 (after turning down a plea), the defendant has changed.  He has matured, received no write ups (!), and is different now then when he was a juvenile.  Miller v. Alabama, 567 US 460 (2012), gave him a second chance.

At resentencing, the district court still imposed life.  The court calculated the guidelines (life), and noted the evidence presented, including the dysfunctional childhood, difficulties on the Reservation, gang culture, his child and wife, the fact he was not the triggerman, and, although disputed, his remorse and regret. The majority found this weighing was sufficient for consideration of the "hallmark features" of youth before sentencing.  The 9th found a sufficient basis for supporting the life sentence.  In affirming, the 9th deferred heavily to the district court.

Dissenting, O'Scannlain argues that the district court erred because it failed to satisfactorily explain the basis for its sentence so as to provide review.  The defendant argued that, under Miller, the court had to specifically consider whether the defendant, then juvenile, fell into a class of permanently incorrigible juvenile offenders. Life sentences are appropriate for juvenile offenders only in the most uncommon or extraordinary of cases.  A judge, to impose a life sentence on a juvenile, must explain why the defendant fell into this group. The court needs to compare and contrast how the offender was then and now, the magnitude of the offense, and other 3553 factors.  There are no magic words or phrases, or special new hurdles; what is required is that the court provide an adequate explanation of its sentence.  This was lacking here. The court did not address the arguments the defendant made. The dissent would remand for resentencing.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/16/16-10150.pdf

US v. Van McDuffy, No. 16-10520 (5-15-18)(N. Smith w/Bea & Nye).

Bad things can happen unintentionally when committing crimes with guns.  So begins this opinion, in which the 9th upholds a conviction and enhancement for bank robbery when a death occurs.  In 18 U.S.C. § 2113(e), Congress required an enhanced punishment when a defendant kills a person during a bank robbery.  The 9th concludes the enhancement applies even when the death is an accidental one.  Here, a customer grabbed the bank robber's gun and it went off.  Critically, the enhancement does not require a separate mens rea: the only required mens rea is the intent necessary to commit the underlying bank robbery.  This is like felony murder. 

In so concluding, the 9th goes through 2113, and the mental state required.  It uses the Supreme Court's decision in Dean as analogous.  In Dean, the enhancement was for a 924(c) offense.  The Court found no need to read a mens rea requirement into the enhancement because the defendant was already guilty of committing the underlying basic crime. The 9th joins the 6th, 7th, 8th, and 10th in this analysis.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/15/16-10520.pdf

 

US v. Johnson, No. 15-30222 (5-14-18)(per curiam w/concurrence by O’Scannlain and concurrence by Paez).

“Hey, over here,” shouts a concurrence to the Supremes, “take this case, it strays from precedent regarding an inventory search.” “Nothing here,” sighs the other concurrence, “just a same old application of precedent.” What is this about? An inventory search...where officers said, truthfully, we didn’t do an inventory search because we knew there was drug evidence.”

The case concerns the arrest of the defendant on an outstanding warrant. His car was boxed in by police vehicles, and eventually impounded. Money, cellphones, pipes, and a stun gun were seized. At the suppression hearing, the officers admitted that they seized the items in a search for evidence and not in conducting an inventory.  Not only admitted, but repeatedly said and even wrote that of course they thought there was criminal evidence and that is why they seized the items. The motion was denied and the defendant eventually convicted of drug trafficking.

In US v. Orozco, 858 F.3d 1204 (9th Cir 2017), the 9th held that for administrative searches, like inventory, if there is objective evidence that the search was in bad faith, a court can look at the subjective intent of the officers. Such was the instance here. Apply the precedent to the statements of the subjective intent of the administrative search, and the evidence had to be suppressed.

O’Scannlain, concurring, follows Orozco, but grumbles that it ignores Supreme Court precedent that stresses the subjective intent of the officer is not to be considered; only whether the search should have occurred objectively. See Brigham v. City of Stuart, 547 US 398 (2006); Whren v. US, 517 US 806 (1996). The concurrence asks the 9th to reconsider, but really screams to the Supremes to examine this 9th Circuit test.  For emphasis, O’Scannlain underscores a Circuit split with the 1st, 5th, and 10th rejecting the 9th’s approach; what O’Scannlain calls a “gloss” on Supreme precedent.

In his concurrence, Paez sees no issue.  He examines administrative searches, which are broad and policy driven; and supports the careful approach of the 9th in Orozco, which requires whether there is objective evidence to suspect bad faith. He cites circuits that support this analysis.

In the meantime, the defendant’s motion to suppress should have been granted. His conviction for possession with intent to distribute meth was vacated and remanded.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/14/15-30222.pdf

US v. Mikhel, No. 07-99008(5-9-18)(Bybee w/M. Smith & Friedland).

The 9th affirmed capital murder convictions and sentence in this case and the co-defendant, Kadamovas (No. 99009). The defendants raised a whole slew of challenges, both to the guilty phase and penalty phase. The cases provide an overview of issues that can, and should be raised.

Hard fought appeal by numerous CJA and FPD counsel.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/09/07-99008.pdf

Case o' The Week: Recusal Refusal - Mikhel and recusal of district judge in federal capital proceedings

“[A]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “The goal of section 455(a) is to avoid even the appearance of partiality.”

  
United States v. Mikhel, 2018 WL 2124086, *13 (internal quotations and citations omitted) (9th Cir. May 9, 2018), decision available here.

Players: Decision by Judge Bybee, joined by Judges M. Smith and Friedland.

  Extraordinarily hard-fought appeal (over many years) by former San Diego AFD Ben Coleman, CD Cal AFPD Michael Tanaka, and many other defense counsel.  

Facts: Along with others, Mikhel and his co-defendant, Kadamovas, kidnapped and killed a number of victims. Id. at *1-*6. They were tried on capital charges before District Judge Tevrizian. Id. at *7.

  During the guilt phase of the trial, Judge Tevrizian submitted his name to be considered as the next U.S. Attorney (for the same U.S. Attorney’s office involved in the trial over which he was presiding). Id. at *11. Judge Tevrizian disclosed this fact: neither side objected. Id. at *12.

  A month later, after the jury returned guilty verdicts, and after the government rested in the penalty phase, the defense moved for recusal. Id. “Defendants argue they did not become aware of the need for recusal until . . . they read a newspaper article suggesting that Judge Tevrizian was among the frontrunners for the position.” Id. at 12 & n.5.

  Judge Tevrizian denied the recusal motion, stated that he had withdrawn his name from consideration, and said that his application “had never progressed past a preliminary stage.” Id. at *12.

  The men were sentenced to death. Id. at *8.         

Issue(s): “Defendants claim 28 U.S.C. § 455(a) required Judge Tevrizian to recuse himself after he applied to a local screening committee for the position of United States Attorney for the Central District of California—the same office prosecuting this case.” Id. at *11.

Held: “Where ‘unexplained delay’ in filing a recusal motion suggests that the recusal statute is being misused for strategic purposes, the motion will be denied as untimely.” Id. at *12 (quotations and citation omitted). “Although a delay of a little over a month would not always, or even ordinarily, doom a motion for recusal, defendants’ delay here renders their motion untimely.” Id. at *12.

  “The fact that Judge Tevrizian immediately withdrew his application is particularly significant. If defendants had made a timely motion and Judge Tevrizian had not immediately withdrawn his application, this issue might have presented a closer question. As it is, we cannot say that a reasonable person with knowledge of all the facts would have questioned Judge Tevrizian's impartiality.” Id. at *13.

Of Note: Another issue in this long opinion is the role of capital counsel under 18 USC Section 3005. Id. at *18. After an accident, one of Mikhel’s capital counsel could not attend trial for three days. Id. at *18. The trial proceeded despite a defense request for a continuance. Id. The Ninth found no problem with this “de minimis” absence from trial. Id. at *19. The Ninth does, however, concede that it is not addressing whether a “more extended absence” might violate § 3005. Id. at 19 & n. 10.

  Expect increased litigation over Section 3005 as the number of federal capital prosecutions explode. Mikhel’s discussion of this important statute merits close review by capital counsel.

How to Use: In Mikhel, two men were sentenced to death by a jurist who, while presiding over their trial, was applying for the job of the district’s top prosecutor. This troubling holding potently illustrates the complexity of recusal motions. If the motion is timely but unsuccessful, our clients could bear the consequences in the trial court. If not aggressively pursued in the district court, however, Mikhel is the result.

  Note that in Mikhel, the Ninth goes beyond the timeliness holding, and (in apparent dicta) also rejects the recusal challenge on its merits. Id. at *13.

  Recusal motions are sometimes unavoidable, to ensure our clients a fair shake in the district court. Before filing a recusal motion, however, Mikhel deserves a very close read.  

                                               

For Further Reading: Are peremptory challenges the solution to the recusal concerns raised by Mikhel? Many states allow peremptory challenges to presiding jurists, and the ABA has supported the idea for the Feds.

   For the Federal Judicial Center’s report on the idea, see A. Chaset, Disqualification of Federal Judges by Peremptory Challenge (Federal Judicial Center 1981), available here.

Image of CD Cal US Attorney Office logo from https://twitter.com/cdcanews

Image of Lady Justice from https://www.pinterest.com/pin/57632070206568126/

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

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US v. Espinoza-Valdez, No. 16-10395 (5-7-18)(Friedman w/Bybee; dissent by Rawlinson). 

This is a "scout" case that ends with the conspiracy to import and conspiracy to distribute marijuana being dismissed. 

A "scout" case refers to a practice of drug traffickers to place several individuals on mountaintops who monitor law enforcement movements.  The scouts communicate with backpackers via radio.  Here, the government raided a mountaintop, and caught the defendant.  He had a radio, batteries, provisions, and other evidence of drug trafficking (special shoes and so forth). The defendant had been apprehended months previously backpacking.  What the government didn't have was evidence with whom he conspired, the object of the conspiracy, any agreement, or evidence of what had occurred with others.  The government used solely expert testimony to explain the structure of the trafficking, role, and possible amounts.

The 9th reversed for insufficiency of evidence.  The 9th reasoned that while it was probable he was a scout, more was needed than an expert "profiling." The risk of profiles are too great, and the actual evidence of an agreement for a conspiracy was nonexistent.

Dissenting, Rawlinson argues that in a light most favorable to the government, and drawing favorable inferences from the evidence, the convictions should be sustained.  Conspiracies can be proved by circumstantial evidence, and there was enough here, with the explanations by the expert, to find that a reasonable jury could convict.

Congrats to Phoenix CJA lawyer Atmore Baggot for the win. 

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/07/16-10395.pdf

 

US v. Rivero, No. 17-10114 (5-2-18)(Ikuta w/Paez & Vitaliano).

Two questions are raised from this opinion: (1) does a defendant need to know the type or nature of the “merchandise, article, or object” he was illegally exporting (here ammunition); and (2) if a spare tire falls 300 meters from the border, does anyone see it?

First, the answer to (2) (spare tire) is “yes.” The defendant’s truck went over a speed bump approaching the border, and Border Patrol cameras captured a spare tire falling out. The defendant tried, but failed, in attempting to load the tire back. He left it.  The truck continued into Mexico. 

Border Patrol went to check out the tire. It was ruptured and ammo was strewn around.  About 5500 rounds of ammunition were found.

An hour later, the truck returned from Mexico, driven by the defendant’s brother.  Then, captured on camera, the defendant walked back into the U.S.  About a month later, the defendant entered the U.S. again.  He was detained and charged with Illegal Exporting Ammunition in violation of 18 U.S.C. § 554(a).

At trial, the defendant objected to the general intent mens rea of the offense, arguing that it should be specific intent. The government has to prove, the defendant argued, that he didn’t just know he was transporting something illegal, but actually knew he was transporting munitions across the border. The same issue was raised on appeal. 

The answer to (1)(knowledge) is “no”.  The 9th looks at 554, which makes it unlawful to export stuff contrary to laws and regulations of the U.S. There is a reference to 22 U.S.C. § 2778, which references certain munitions. The defendant argued, “See, I had to specifically know I was exporting these munitions.”  The exportation must be willful. The 9th rejected these arguments. The 9th looks at Dixon v US, 548 US 1 (2006), which states “knowingly” merely requires proof of knowledge, unless the text dictates otherwise. The text does not so state here, nor is congressional intent to the contrary. Besides, the 9th reasons, a specific intent require would reward willful blindness. 

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/02/17-10114.pdf

Case o' The Week: Ninth Buys Probation's Hard Cell - Misraje and "Bright Line" Prohibitions of Cell Phones on Supervision

 Coffee and cell phones: a dangerous combination.

United States v. Misraje, 2018 WL 1998294 (9th Cir. April 30, 2018), decision available here.

Players: Decision by visiting Maine District Judge Woodcock, joined by Judges Berzon and Bybee. 

  Hard fought appeal by AFPD Jonathan Schneller, C.D. Cal.

Facts: Misraje was on supervised release after a child porn conviction. Id. at *1. One condition prohibited him from possessing or using a computer or computer-related device not disclosed to his PO. Id.

  At a coffee shop, Misraje was handed a smartphone by a friend, and looked at an internet website about public storage facilities. Id. at *3. His PO was at the coffee shop, and took pictures of Misraje holding the phone. Id.

  A Form 12 was filed, an evidentiary hearing held, supervision was revoked, and Misraje got a year and a day in custody. Id. at *2.

Issue(s): “Misraje alleges that merely holding his friend’s cellphone and looking at the screen does not constitute ‘use’ of the phone, and, thus, could not violate the undisclosed-device condition.” Id. at *2.

Held: “The district court did not err in determining that Misraje ‘used’ the smartphone in the coffee shop.” Id. at *3.

  “On the basis of evidence that Misraje actually possessed and used his friend’s smartphone – a device that he had not disclosed to the supervising officer – the district court properly concluded Misraje violated the condition against possession and use of an undisclosed device.” Id.  

Of Note: Bad facts, as the trope goes, make bad law. There is an unfortunate backstory for the Misraje holding reported above.

  Before the coffee shop incident described above, Misraje went to Wal-Mart and used a display computer to tap into a nearby McDonald’s internet connection. Id. at *1. He found child porn using the Wal-Mart computer, took a picture of it on his own phone, and later showed this picture-of-a-porn-picture to a minor. Id. That far more troubling Wal-Mart episode was the subject of a separate Form 12 allegation – and is the conspicuous factual context to the otherwise-innocent coffee shop event.

  Would a Probation Officer have pursued, a district judge have revoked, and the Ninth have affirmed, a violation charge based on an otherwise-innocent coffee shop episode alone? Doubtful, but the die is cast: for child porn clients on supervision, cell phones (however innocent) are strict liability devices.

How to Use: After Misraje, if a friend hands a child porn supervisee a cell phone to look at the Warriors’ score, and the supervisee doesn’t tell his P.O., he has violated what District Judge Woodcock describes as a “bright line prohibition.” Id. at *3. We should worry about this boundless condition, and have a frank talk to our child porn clients about Misraje before they start supervision.

  More importantly, the opinion illustrates that this condition of supervised release merits challenge and some reasonable limitation at the original sentencing (like a more rational definition of the “use” of a computer-related device.)

                                               

For Further Reading: For a client convicted of a child pornography offense, the custodial sentence is just part of the long, long punishment that awaits. Conditions of supervised release for sex offenders are onerous, and – as illustrated by Misraje – can be “bright line,” strict liability traps. 

  For a basic overview of supervised release, and the (many) conditions that the Sentencing Commission want imposed, see U.S. Sentencing Commission, Office of General Counsel, “Primer: Supervised Release,” Apr. 2017, available here.

  This Primer makes a point of identifying the mandatory, and recommended, conditions of supervised release for sex offenses. See, e.g., id. at 5.A.1.2 (discussing mandatory conditions of supervised release for sex offenders). 

  A helpful starting point when thinking about how to restore some rationality towards supervision in these emotionally-charged cases.  

Image of “No Cell Phones” mug from https://www.amazon.com/Cell-Phones-Lukes-Diner-Merchandise/dp/B06WLGZ7F5.

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

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US v. Misraje, No. 15-50543 (4-30-18)(Woodcock w/Berzon & Bybee). 

The 9th affirms revocation of supervised release.  The defendant was on SR for a child porn conviction.  One condition required that he possess and use only those computers and computer devices that he had undisclosed to his probation officer.  He allegedly violated this condition by (1) use of a disclosed electronic device on which he had downloaded images via a computer at a Walmart with WiFi from a nearby McDonalds (and he showed images to a young child in a psychologist's office); and (2) looking at a device a friend showed him.  On appeal, he argued that it was unreasonable to allege the first violation as it occurred many months previously (7-8) and thus was too stale.  He also argued that proof of it came via coercive interrogating.  The 9th held that the alleged violation was not too old. The fact that the probation office could have alleged it earlier did not bar its alleging now.  The questioning was not coercive or violating due process as it related to his condition of supervised release.  The police can be deceitful. As for the second violation, although the defendant proved that he was just looking at storage units that his girlfriend had found for him, the 9th still concluded this was still on an undisclosed computer-like device. The ramifications are troubling: if a defendant on SR peers or looks or even glances at someone's smart phone, it could qualify as use of an undisclosed device.  This is concerning.  The 9th reasons that bright-lines are required, and complete prohibitions are necessary.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/04/30/15-50543.pdf

 

US v. Garrison, No. 15-50137 (4-25-18)(Gould w/Murguia & Christensen).

The 9th affirms the conviction for conspiracy by health care providers to distribute opioids without legitimate medical purpose. The 9th found more than enough evidence to support the conviction: forged files, no patient examinations, wrong prescriptions, faked signatures, and cooperator testimony.

The cooperator testimony however proved problematic as the opinion contains a litany of Brady/Giglio violations, and violations of a joint defense agreement aided by the government. The government dismissed counts against the co-defendants affected by late disclosures, outright violations of Brady/Giglio, and breaching the joint defense agreement. The jury was instructed of the government violations and that the violations could be a basis of acquittal. The Court also instructed the jury to ignore the dismissal of co-defendants. These steps by the Court were not erroneous. The jury was properly instructed.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/04/25/15-50137.pdf