Case o' The Week: Government's Pleas Fall on Skeptical Ninth Ears - Armando Vera and Use of Co-D Plea Agreements at Sentencing

 If at first you don’t succeed,

 Find a co-d, make him plead,

 Use co-D’s plea to prove your fact,

 Then up to the Ninth, who sends you back.

United States v. Armando Vera, 2018 WL 3097956 (9th Cir. June 25, 2018), decision available here.

Players: Decision by Judge Owens, joined by Judges Wardlaw and Nguyen.  

Facts: Brothers Salvador and Armando Vera were convicted of a drug-trafficking conspiracy after trial. Id. at *1. In a welcome holding rejecting cop “interpretations” of recorded calls, the Ninth’s first opinion vacated the drug quantity findings and the defendant’s sentences. See United States v. Salvador Vera, 770 F.3d 1232 (9th Cir. 2014), see also blog entry here. 

  On round two of sentencing, the government decided not to try to fix the cops’ methodology, or actually call the co-conspirators to establish drug amounts. Armando Vera, 2018 WL 3097956, at *2. Instead, the government “relied heavily” on the co-conspirators’ plea agreements to pin drug amounts on the Vera brothers. Id.

   Over objection, the district court found these agreements reliable, declarations against interest, and – primarily relying on the facts from the plea agreements – re-sentenced one brother to 27 years, and the second to 14 years. Id.

Issue(s): “At sentencing, the Confrontation Clause does not apply, . . . and district courts have wide latitude when deciding upon which information to rely, . . . But that information must still have “sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a).” Id. at *3.

Held: “Here, the district court relied heavily upon the co-conspirator plea agreements to determine the drug quantities attributable to the Veras, concluding that the plea agreements were reliable statements against interest under Federal Rule of Evidence 804(b)(3). This was reversible error.” Id.

  “Of course, “hearsay is admissible at sentencing, so long as it is accompanied by some minimal indicia of reliability.” Littlesun, 444 F.3d at 1200 (internal quotation marks omitted). But here, the district court’s primary rationale for relying upon the plea agreements —Rule 804(b)(3)—was incorrect. At sentencing, district courts may not rely solely on Rule 804(b)(3) to use non-self-inculpatory statements in a co-conspirator’s plea agreement to determine a defendant’s drug-quantity liability.” Id. at *4.

  “Vacated and remanded.” Id. at *6.

Of Note: Can a complaint affidavit be used to support the government’s facts at sentencing? Weird, but the government stretched for that argument here, urging in a 28(j) letter that complaint affidavits supported the drug amount findings in Vera. Id. at *5 & n.4.

  The panel “assumes without deciding” that a complaint affidavit can be used at sentencing, but holds the reliability of the government’s showing still falls short. Id.

  A good ultimate holding by the panel, but this complaint-tactic remains a government scheme that merits close watching – it seems terrifically unreliable, litigation-driven, hearsay evidence.

How to Use: AUSAs inexplicably lard-up plea agreements with facts inculpating co-defendants – even when the pleading defendant isn’t snitching. Of course, a pleading defendant trying to “curry favor” with the government, id. at *3, doesn’t really care if facts inculpating co-Ds are actually true.

  Judge Owns understands this reality: his pragmatic analysis works through the dubious reliability of the government’s rambling factual bases. As he explains, in Vera “Neither the district court nor the government cited any authority suggesting that a factual basis in a plea agreement pointing the finger at someone else qualifies as Rule 804(b)(3) material, and there is ample case law . . .  suggesting otherwise.” Id. at *3.

  Use Armando Vera to brush back on the novels AUSAs jam into Paragraph 2 (the factual bases) of our plea agreements. As the Vera opinion illustrates, those lengthy statements nailing co-Ds aren't particularly reliable, have little value in litigation, earn our clients unwarranted snitch jackets, and seriously complicate efforts to resolve cases. 

                                               

For Further Reading: The conduct in this case was in 2008. Two sentencing remands and a decade later, Vera I and II don’t say much for the reliability of our current federal sentencing system. 

  What say we use the Federal Rules of Evidence at sentencing, to increase reliability? For an interesting piece making that pitch, see Deborah Young, Fact-Finding at Federal Sentencing: Why the Guidelines Should Meet the Rules, available here.  

Image of plea agreement from http://www.mynbc5.com/article/lawyer-jacques-plea-agreement-good-for-prosecution-bennett-family/3311131

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

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US v. Hohag, No. 17-30049 (6-28-18)(Graber w/M. Smith & Hellerstein).

The 9th affirms imposition of SR conditions related to a SORNA conviction. The conditions imposed at issue are (1) participation in a sex offense specific assessment; and (2) polygraph testing at the discretion of the probation officer in conjunction with the assessment. The defendant argued that the conditions were unnecessary and an imposition because his sex offense was 27 years ago. He had undergone treatment, and in 2002, he submitted a polygraph showing he had no sexual contacts with minors.

The test for imposition of conditions, especially in sex cases, is whether the conditions are (1) burdensome; and (2) whether the condition is reasonably related to SR. The leading cases for sex offender conditions are Johnson, 697 F.3d 1249 (9th Cir 2012) and US v. T.M., 330 F. 3d 1235 (9th Cir 2003).

The 9th affirmed here because the conditions were related to the present conviction (SORNA) and were not a burdensome imposition.  The conditions are an assessment and possible testing. The court weighed and balanced. The 9th found this matter was closer to Johnson, where sex offender assessment was imposed after two sex offenses; both old, but one involving weapons, as was Johnson’s present offense. In T.M., the conditions were deemed too burdensome and stringent for an old sex offense, with a history of continued sex offender treatment, and not related to the present offense. Here, the present SORNA offense is given great weight.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/28/17-30049.pdf

US v. Charette, No. 17-30059 (6-26-18)(Tallman w/N. Smith & Christen).

The 9th affirms in part and reverses in part a conviction and remands. This case involves the killing of a Ursus asctos horribilis (grizzly bear) for supposedly harassing a horse and then charging the defendant’s home. This is a second time for the case. The defendant was charged and convicted under 16 U.S.C. §§ 1538(a)(1)(G), 1540(b)(1) and 50 CFR 17.40(b)(1)(I)(A) for unlawfully taking a threatened species. The defendant was convicted by a magistrate judge for this misdemeanor.

The defendant argued that the government must prove the defendant lacked a permit for the taking of a grizzly bear. Since the government did not, there should be an acquittal for insufficient evidence. The 9th affirms the denial of acquittal for insufficient evidence. There was not insufficient evidence because the defendant bore the burden. The 9th rules that a permit is an affirmative defense, and so the burden is not on the government.

However, the 9th finds error that the magistrate used an objective person standard for self-defense instead of a subjective standard. The statute here allows a “good faith belief” which is subjective. The error was not harmless.

The 9th also held that the penalties of the misdemeanor were not so severe as to require a jury trial.

Congrats to AFPD John Rhodes of the Federal Defenders of Montana.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/26/17-30059.pdf

US v. Vera, No. 16-50364 (6-25-18)(Owens w/Wardlaw & Nguyen). 

The 9th vacated and remanded a drug conspiracy sentence because the court relied upon evidence of questionable value in determining drug quantities attributable to each conspirator. Specifically, the district court relied primarily upon plea agreements of the co-conspirators, who pointed fingers at co-conspirators.

This was a second remanding. The first time the 9th remanded because the Court relied upon a FBI agent’s so-called expert testimony as to what wiretapped conversations meant. The evidence there was unreliable.

This time, the use of co-conspirators plea agreements were questionable. The statements were not self-inculpatory; they were products of negotiation and the government had an interest in skewing.  The government could have called the co-conspirators or provided other corroborating evidence besides the pleas or complaints or reports.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/25/16-50364.pdf

Case o' The Week: Big To Do, "Related To" - Reinhart and Categorical Analysis of Child Porn Priors

  Ninth delivers a “narrow” defense win.

United States v. Reinhart, 2018 WL 3016942 (9th Cir. June 18, 2018), decision available here.

The Hon. Judge Mary Murguia

Players: Decision by Judge Murguia, joined by Judge Gould and D. Wyoming Chief District Judge Freudenthal.

  Big win for (former, and sorely-missed) ND Cal AFPD Ned Smock (Oakland), (soon to be D. Md. AFPD Ned Smock).  

Facts: Reinhart plead guilty to possession of child porn. Id. at *1. Under 18 USC § 2252(a)(4)(B), a defendant convicted of this offense, who has two priors “relating to” the production, possession, etc. of child porn faces a ten year mandatory minimum sentence. Id.  Reinhardt had been convicted of possession of child porn, Cal. Penal Code § 311.11(a), and sexual exploitation of a child, in violation of Cal. Penal Code § 311.3(a). Id.

  “At sentencing . . . the government argued that the words ‘relating to’ in § 2252(b)(2) should be read broadly to encompass state statutes even if the state statutes of conviction do not categorically match the definition of federal child pornography offenses. Reinhart contended that the usual categorical approach should apply, and under that analysis, Reinhart’s prior California convictions were not a categorical match and were overbroad as compared to the federal definition of child pornography offenses in § 2252(b)(2).” Id. at *2.

  The Honorable ND Cal District Judge Jeffrey White found neither prior qualified as a conviction that triggered the ten-year mand-min. Id. at *1.

Issue(s): “We decide whether Reinhart’s prior California convictions constitute offenses ‘relating to’ child pornography under . . . 2252(b)(2 . . . .” Id. at *1.

  “[W]e must determine whether the words ‘relating to’ in the ten-year mandatory minimum statutory sentencing provision at § 2252(b)(2) require us to break from our usual, elements-based categorical approach for determining when state statutes of conviction trigger a federal sentencing enhancement and instead, apply a broader comparison between the state statutes and the federal statutes. Here, we consider whether Reinhart's prior . . . statutes of conviction fall under the federal definition of ‘child pornography offenses’ as used in § 2252(b)(2).” Id. at *3.

Held: “We affirm.” Id. at *1.

  “The government urges that Sullivan determines the outcome in this case. We disagree. At the outset, we recognize that Sullivan examined the same federal sentencing enhancement statute at issue here, § 2252(b) (2). But § 2252(b)(2) describes a number of prior types of state offenses, some of which include federally-defined terms, and some of which do not. As Sullivan directs, the language of a statute and any related textual restrictions may favor a narrower reading . . . . Accordingly, we look at the different types of offenses listed in separate clauses in § 2252(b)(2) to determine whether a narrower reading of ‘relating to’ and the categorical approach should apply. Here, it does.” Id. at *5.

  “In sum, we hold that [  ] because the terms ‘child pornography’ and ‘sexually explicit conduct,’ are explicitly defined in chapter 110, the statutory text ‘tug[s] ... in favor of a narrower reading’ of ‘relating to.’ . . . . Therefore, we do not depart from the usual, elements-based, categorical approach to determine whether Reinhart's prior state statutes of conviction trigger the federal mandatory minimum provision in § 2252(b)(2) for individuals with prior offenses ‘relating to’ child pornography.” Id. at *7 (emphasis added).

Of Note: This is a terrific decision: a thoughtful analysis untangling the subsections of the relevant statutes, and an intellectually honest approach to emotionally-charged offenses. Judge Murguia notes that in Reinhart the Ninth splits with the Tenth on the reading of “relating to.” Id. at *7.

  This is an interesting twist for the visiting Chief DJ, from Wyoming (which is in the Tenth Circuit). Back home on her own bench, DJ Freudenthal will now have to apply incorrect Tenth Circuit law in her own cases, despite joining the correct outcome here in Reinhart!

How to Use: This holding is a very important limitation on child porn mand-mins. Reinhart merits a careful read for anyone fighting child porn charges, when the client is bringing state priors into federal court.

                                               

For Further Reading: Have you noticed a local increase in child porn prosecutions? Brace yourself: more to come. See Justice Task Forces Arrest 2,300 Online Child Sex Suspects, available here. 

Image of the Honorable Judge Mary Murguia from http://www.mauigmomoratoriumnews.org/hawaiis-legal-battles-gmos-also-affect-mainland/

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

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1. US v. Reinhart, No. 16-10409 (6-18-18)(Murguia w/Gould & Freudenthal). 

The 9th affirms – it’s a good thing -- the district court's finding that a defendant was not subject to a mandatory ten year sentence for possession of child porn.  The defendant had prior state misdemeanor convictions for possession of child porn and sexual exploitation of a child.  Cal Penal Code 311.11(a) and 3(a).  Applying the categorical approach, the 9th held that California's state convictions were overbroad and did not categorically match the federal convictions.  They were also indivisible. The 9th rejected the government's argument that the statute's language of "relating to" for priors overrode the categorical approach.  The 9th affirmed the 78 month sentence.

Congrats to AFPD Ned Smock of Cal Northern (Oakland).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/18/16-10409.pdf

 

2. US v. Espino, No. 16-50344 (6-18-18)(Bataillon w/Callahan & Nguyen).

The defendant was charged with lying to a grand jury.  The defendant supposedly made two false statements as a tax preparer. The jury verdict form, after much discussion to simplify, read that the jury had to find the defendant not guilty beyond a reasonable doubt to acquit.  There was no objection.  On appeal, the 9th held that of course this was error. However, the error was harmless.  The jury instructions as a whole made clear the government had the burden.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/18/16-50344.pdf

Case o' The Week: Tennis Shoes as "Dangerous Weapons" a Tough Outcome to Swallow - Swallow and Assault Guideline Enhancement

  Shoes: "dangerous weapons," in the Ninth.

United States v. Swallow, 2018 WL 2771044(9th Cir. June 11, 2018), decision available here.

Players: Decision by Judge Watford, joined by Judge Tallman and D.J. Boulware II.

  Hard-fought appeal by AFPD Colin Prince, Federal Defenders of Eastern Washington & Idaho.

Facts: After a tiny meth deal went bad, Swallow and his victim fought in a casino parking lot. Id. *1. The victim ended up on the ground, and Swallow – while wearing tennis shoes – “proceeded to kick the victim . . . . At first, the victim kicked back and attempted to defend himself. But after Swallow landed several vicious kicks to the victim’s torso and head, the victim lay motionless, apparently unconscious. Rather than walk away, Swallow continued to kick the victim in the head with full force, as though he were kicking a football. Swallow then stomped on the victim’s head with the bottom of his shoe, crushing the victim's head into the pavement. The victim was hospitalized as a result of the attack and suffered permanent cognitive impairment.” Id.

  Swallow pleaded guilty to assault resulting in serious bodily injury, then was hit with a four level increase under for using a “dangerous weapon” during the commission of the offense (the tennis shoes). Id.

Issue(s): “[Swallow] challenges the . . . calculation of his sentencing range under § 2A2.2 . . . . [and] challenges two enhancements . . . . : (1) a four-level increase under § 2A2.2(b)(2)(B), which applies if ‘a dangerous weapon (including a firearm) was otherwise used’ during commission of the offense; and (2) a two-level increase under § 2A2.2(b)(5), which applies if ‘the assault was motivated by a payment or offer of money or other thing of value.’ Id. at *1.

Held: “[T]he district court properly applied the first enhancement but erred by imposing the second.” Id. at *1. “[T]he Guidelines define the term ‘dangerous weapon’ as ‘an instrument capable of inflicting death or serious bodily injury.’ U.S.S.G. § 1B1.1 cmt. n.1(D)(i). There is no dispute that the victim suffered serious bodily injury as that term is defined in the Guidelines . . . The only question is whether Swallow used an ‘instrument’ capable of inflicting such injury with the intent to injure his victim.” Id. at *2.

  “[T]he district court did not abuse its discretion in concluding that Swallow's tennis shoes qualify as dangerous weapons, given the manner in which they were used. Although tennis shoes are not inherently dangerous, Swallow undoubtedly used his shoes to augment the force of the kicks and the stomp he delivered to the victim's head; the shoes enabled Swallow to inflict greater harm than if he had delivered the kicks and stomp with his bare feet. And Swallow used his shoes to commit the assault in a manner capable of producing serious bodily injury.” Id. at *2.

  “[A]n object that is not inherently dangerous can constitute a dangerous weapon if the defendant used the object to augment the force of the assault, in a manner capable of inflicting serious bodily injury.” Id. at *3.

Of Note: At least the panel rejects the second enhancement: + 2 O.L. for an assault motivated by an offer of payment or money. Id. at *3. Judge Watford explains this enhancement is intended for “assault for hire” cases – here, Swallow stomped his victim after being egged on by his wife. Id. A good limitation on § 2A2.2(b)(5).

How to Use: This “tennis shoe” holding has an important limitation. The shoes only qualified as “dangerous weapons” because (the Court found) they “augmented the force of the assault.” Id. at *3. 

  Don’t let your P.O. convert every mundane object into a “dangerous weapon” – this holding should be limited to the egregious facts of this case, where the victim’s head was “stomped” into the pavement, and permanent damage resulted.

                                               

The Hon. District Judge Richard Boulware

For Further Reading: The DJ on the Swallow panel, the Judge Richard Boulware, has more than a passing interest in Guideline matters. A former AFPD, Judge Boulware was nominated by President Obama to the Sentencing Commission in 2015. See White House press release here. 

  ND Cal District Judge Breyer was also nominated to the Commission by the President that round.

  The latter nomination panned out: the former, not so much.

Image of shoe gun from http://www.zionumcwhitehouse.org/112617-save-the-shoes/attachment/old-converse-tennis-shoes/

Image of Judge Boulware from http://lasvegas.cbslocal.com/2014/06/11/las-vegan-appointed-to-federal-bench/

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

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US v. Swallow, No. 16-30224 (6-11-18)(Watford w/Tallman &Boulware).

The 9th upholds a four-level enhancement for use of a "dangerous weapon" in an aggravated assault under the Guidelines 2A2.2.  The "dangerous weapon"?  Tennis shoes. 

The defendant did stomp on the victims head.  The stomping and kicking happened after a fight concerning failure to return with some drugs.  The 9th affirmed the enhancement because, supposedly, the use of tennis shoes added to the force of the stomp, Although the tennis shoes were not inherently dangerous, like guns and knives, the tennis shoes could be dangerous in the manner of use, like stomping. The 9th found it was not an abuse of discretion because the tennis shoes made a kick or stomp more dangerous than with just bare feet. 

The 9th pointed to precedent, where it had upheld using a shoe to beat a child, and where it held that using bare hands were not a dangerous weapon, although shoes might.  The 5th, 8th, and 10th all have held that the use of shoes, even tennis shoes, can be a dangerous weapon depending on the circumstances.

The 9th did vacate the enhancement for "motivated by payment" for lack of evidence.   No one paid the defendant for the assault; he was egged on by his wife because the victim had failed to provide the paid for drugs.

Tough decision on the shoes but at least Colin Prince, Fed Defenders of E. Wash (Spokane), got a vacation, remand, and now a resentencing.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/11/16-30224.pdf

US v. Edling, No. 16-10457 (6-8-18)(Watford w/Thomas and Rawlinson).

The 9th vacates and remands a Guidelines sentence for being a felon in possession under 2K2.1. The district court found three prior offenses of “crimes of violence.” This raised the defendant’s offense level using a categorical approach.

On appeal, the 9th determines that: (1) assault with a deadly weapon under Nevada assault statute was a COV given the element of use or threatened use of violence; however, neither (2) robbery nor (3) coercion were COVs. The former —robbery — was not a categorical match as it involved violence against property as well as person.  It swept too broadly. Coercion was not a COV because state courts have defined “force” in other statutes as not necessarily requiring violence or causing bodily pain or harm.

Winning two out of three ain’t bad.  Thus, with only one COV, the sentence is vacated and remanded and the offense level is reduced from 24 to 20.

Congrats to AFPD Cullen Macbeth with AFPDs Amy Cleary and Christen Thayer of the FPD Nev Office (Las Vegas).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/16-10457.pdf

King v. US, No. 17-10006 (6-4-18)(Mueller w/Wallace & Berzon).

What makes a supervised release appeal moot? Here, the 9th held that the unconditional release from custody mooted the appeal from the revocation of SR and term of imprisonment.  King argued it was not moot because of collateral consequences. In revoking, the district court found he committed statutory rape. As such, King feared he could be forced to register as a sex offender, or that visitation with his children could be affected.

The 9th recognizes the novel aspects.  What are collateral consequences, and how certain must they be?  In Spencer v. Kemna, 523 US 1 (1998), the Supremes found release from parole and sentence mooted the alleged appeal to an erroneous revocation.  The 9th extends Spencer to SR, as does the 1st, 2nd, 3rd, 4th, and 5th.  For there to be collateral consequences, there must be continuous and continuing injury. The future possibility of registration being extended to a finding made by preponderance of evidence is just a possibility: there is nothing on the horizon and no threat at present. It is not a continuous or continuing injury.  The possibility, now, is mere speculation. 

Well fought appeal by AFPDs Carmen Smarandoiu and Dan Blank of FPD Cal N (San Francisco).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/04/17-10006.pdf

Case o' The Week: Ninth Nixes Extortion Contortions - Edling and "Crime of Violence" Under Guideline Definition

  Did Tony Soprano extort by threatening “physical injury” to his victim's iPad?

  (Yeah, the Ninth doesn’t think so, either.)

United States v. Edling, 2018 WL 2752208 (9th Cir. June 8, 2018), decision available here.

Players: Decision by Judge Watford, joined by C.J. Thomas and Judge Rawlinson. 

  Big win for AFPDs Cullen Macbeth, Amy Cleary, Cristen Thayer, the D. Nevada FPD, and the entire Ninth Circuit Johnson brain trust.  

Facts: Edling pleaded guilty to being a felon in possession of a gun. Id. at *1. Under USSG § 4B1.1(a), a “crime of violence” increased his guideline range. Id. 

  One prior at issue was robbery, under Nevada Revised Statutes § 200.380. Id. That statute prohibits taking personal property from the person of another, by – among other means – force, violence, or fear of injury against the person or property. Id. at *3. 

  The district court held that offense was a “crime of violence” as defined under the Guidelines. Id.

Issue(s): “[ ] Edline contends that [Nevada robbery does not constitute] a ‘crime of violence’ as that term is defined in the Guidelines.” Id. at *1.

Held: “[In] 2016 . . . the Sentencing Commission amended the enumerated offenses clause by adding for the first time a definition of ‘extortion.’ That definition provides: “‘Extortion’ is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.” . . . . The question posed here is whether this new definition still encompasses threats of injury to property. We conclude that the Guidelines’ new definition of extortion narrows the offense by requiring that the wrongful use of force, fear, or threats be directed against the person of another, not property. That is the most natural reading of the text of the definition, particularly its reference to ‘physical injury’—a term that, when used on its own, is typically understood to mean physical injury to a person.” Id. at *3 (emphasis added).

  “Robbery under Nevada law is not a categorical match under either the elements clause or the enumerated offenses clause of § 4B1.2(a). The district court therefore erred in treating Edling’s robbery conviction as a crime of violence.” Id. at *4.

Of Note: Oregon AFPD Steve “Rule of Lenity” Sady is happy. You’ll recall that this venerable rule of statutory construction gives the tie to the defendant – “where the statute is ambiguous” courts should not interpret the statute to increase the penalty on the defendant. Id. at *4. 

  To the extent any ambiguity remained as to this Guideline, Judge Watford invokes the R.O.L. and joins the Tenth Circuit with the right result: the Guideline’s definition of extortion excludes injury and threats of injury to property. Id.

How to Use: Nice win for Edling – four offense levels off, ultimately (for this and another non-COV prior), and for all defendants with Nevada robbery priors. 

  Huge win for California, however, and for the far greater number of federal clients with Cal. Penal Code § 211 robbery priors. Edling should mean lower guidelines, and many years of custody avoided, for our many Cali federal clients with § 211 priors.

  Will Edling’s holding on Nevada robbery control the question for CPC § 211 priors, now up in the Ninth? Well, the government thinks so – it has proclaimed to the Ninth that “There is no substantive difference between California’s robbery statute and N.R.S. § 200.380.” See United States v. Harris, 08-10370, 2009 WL 3639779 (Feb. 17, 2009), Appellee’s Answering Brief.

   Fight tooth and nail against any AUSA or PO claim that CPC § 211 is a crime of violence under USSG § 4B1.2 -- particularly after Edling, it ain’t.

                                               

For Further Reading: Before the Ninth now is United States v. Howard Nickles, III, No. 17-10206 – Judges Wallace, Berzon, and Callahan will decide whether CPC § 211 is a “Crime of Violence.” 

  Last March, we flagged the remarkably frank oral argument on that issue, as this panel struggled to interpret the Commission’s “C.O.V.” intent in the amended Guideline. See “For Further Reading” here. 

  Do you have a CPC § 211 issue perking in your case? If so, read Edling, hit the Nickles III argument, and knock wood for another great Ninth decision soon. See Nickles III argument here.  

Image of “What is Extortion” from https://www.youtube.com/watch?v=4qGNAAephuk

Steven Kalar, Federal Public Defender. Website at www.ndcalfpd.prg

Case o' The Week: Whren is for the Birds -- Mark Johnson and Subjective Intent in Administrative Searches

 Ninth ignores defense arguments, relies on cops’ assertions –

    and reverses for a suppression win!

United States v. Mark Johnson, 889 F.3d 1120 (9th Cir. May 14, 2018), decision available here.

Players: Per curiam opinion: Judges O’Scannlain, Paez, and Bea. Special concurrence by Judge O’Scannlain, joined by Judge Bea. Special concurrence by Judge Paez.

Facts: Deputies found Johnson, who was wanted for a warrant. Id. at 1123. They surveilled him at his house, let him drive away from the home, then at an intersection they boxed his car and stopped him. Id. The cops ordered the parked car towed. Id. 

  Before the tow, they did an inventory search and found (among other things) a backpack. Id. They got a warrant and found meth and evidence of drug dealing in the backpack. Id. at 1124. 

  Johnson was charged federally and moved to suppress. Id. The motion was denied, Johnson was convicted after trial, and sentenced to 188 months. Id.

Issue(s): “We must decide whether the trial court erred in failing to suppress evidence that was seized by . . .  police officers during their inventory search of a criminal defendant and the car he was driving at the time of his arrest.” Id. at *1123. 

  “Johnson contends that the officers in this case impounded and searched the car he was driving not for any legitimate inventory purposes, but rather as a pretext to look for evidence of wrongdoing. He urges that both the officers’ actions leading up to the stop and search of his car and their conduct in carrying out that search show that they were subjectively motivated by an improper desire to find incriminating evidence against him.” Id. at 1125.

Held: “We . . . must determine whether Johnson has produced evidence that demonstrates the officers would not have searched and seized items from the car he was driving but for an impermissible motive.” Id. at *1126. 

  “[W]e need not consider the merits of [Johnson’s] arguments—or whether any such violations of [the tow] policy would require suppression of the evidence found —because the officers themselves explicitly admitted that they seized items from the car in an effort to search for evidence of criminal activity.” Id. at 1127 (emphasis in original).

  “In light of our decision in Orozco, we conclude that the officers' search and seizure of such evidence cannot be justified under the inventory-search doctrine. See Orozco, 858 F.3d at 1212–16. Because the government has not offered any justification for the seizure of such property other than the inventory-search doctrine, we conclude that the district court erred in denying Johnson’s motion to suppress.” Id. at 1128.

Of Note: In a special concurrence, Judges O’Scannlain and Bea waive a red flag at the SCOTUS bull. Id. at 1129 (O’Scannlain, J., specially concurring). The real issue in Johnson is whether the officers’ subjective intent is relevant when considering an inventory search. Under the Ninth’s (correct) Orozco decision, the cops’ intent matters. See generally blog post here. Judge O’Scannlain, however, argues that Orozco parts way with Supreme precedent. Id. at 1131. 

  In a compelling concurrence, Judge Paez strongly disagrees – noting that the "vast majority" of sister circuits have agreed that subjective motive is relevant when assessing administrative searches. Id. at 1135. 

  Judge Paez has the better argument, questioning Judge O’Scannlain’s reliance on a mem dispo in the sister-circuit count. Id. at 1136 n.3. Nonetheless, in uncertain times, this attack on established law for administrative searches is unsettling.

How to Use: Cops are so used to hiding behind the Whren “objective” shield, they get sloppy and are honest about their real subjective intent in administrative searches. That phenomenon is precisely what happened here in Johnson, producing the facts that lead to the suppression win. 

  Consider that Whren-pulse when prepping for evidentiary hearings – this win was handed to the defense by the cops.

                                               

For Further Reading: Justice Scalia, the big Whren Friend, is no longer with us. And Justice Ginsburg – who joined Whren – may be having second thoughts. For a fascinating piece supporting Judge Paez’s view that subjective intent is increasingly relevant for SCOTUS, see “A Crack in the Whren Wall,” available here.

Image of Wren from https://www.allaboutbirds.org/guide/House_Wren/id

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

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