US v. Mickey, No. 16-50343 (7-30-18)(McKeown w/Wardlaw & Donato).  Do the "means" of an offense constitute the ends of "elements" for unanimity purposes? Here, the 9th says "no" in a sex trafficking case.  The defendant was charged by the grand jury with four types of means used to sex traffic under 18 USC 1591(a) and (b)(1).  The statute reads that any combination of such means could be used.  At the end of a five day trial, with a number of victims, this "combination of means" wasn't good enough for the gov't.  The prosecutors asked for, and received, a more specific special verdict detailing the means and asking for special findings.  This led the jury to ask whether it had to be unanimous on the means.  The district court said "no," and denied the giving of a specific unanimity instruction for the means; general unanimity was sufficient.  The 9th affirmed this decision.  There were alternate means or ways to commit the crime.  The 9th chided the govt though injecting risk of error by asking the jury to decide on the means when a general unanimity was sufficient for "any combination of means."  The 9th also found no constructive amendment of the indictment took place.  The defendant had notice.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/30/16-50343.pdf

US v. Turner, No. 14-50238 (7-27-18)(Ikuta w/M. Smith & Gettleman). The 9th affirms convictions in two separate fraud trials (2009 and 2012). The 9th concludes that the defendant's Sixth Amendment rights were not violated when, after eight continuances and vacillations between counsel and self-representation, over two and a half years, the court granted a shorter continuance than requested.  The court did not abuse its discretion when it denied CJA funds in both trials.  The court did not err in not holding a sua sponte competency hearing in the 2012 trial.  Since the court reasonably did not doubt the defendant's competency, the denial of mistrial was affirmed and the decision not to terminate self-representation.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/27/14-50238.pdf

US v. Holden, No. 16-30186 (7-26-18)(Graber w/M. Smith & Korman).  Did the Courts overstep separation of powers by reading in criminal conduct to a statute?  Specifically, for a scheme to defraud, can a jury convict for "participating" in a scheme when that term never appears in the statute?  In so finding, hasn't the 9th created a common law offense rather than a statutory one.  Interesting argument, although the 9th will shrug and say, we can construe the mail and wire fraud statutes broadly.  By participating in a scheme to defraud -- here investments in foreign biofuel production that came to naught -- the defendant was acting with criminal intent, and his acts in a joint scheme have the features of a conspiracy. It does not matter if he has not devised the scheme; he joins into it with criminal intent and therefore his participation is fraudulent.  The 9th sides with 6th in the ruling.

The 9th did vacate the sentencing and remanded. The record did not support the guideline enhancement for an organizer under 3B1.1.  The evidence did not support that the defendant exercised control over the co-defendant.  There was also inconsistencies with the restitution order (all due now or under the payment schedule? A remand will clear it up).

Kudos to Lisa Hay, FPD Oregon, for a hard fought, and interesting, appeal.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/26/16-30186.pdf

 

Echavarria v. Filson, Nos. 15-99001, 17-15560 (Fletcher with Berzon and Nguyen) --- The Ninth Circuit affirmed the grant of a habeas petition and a new trial filed by a Nevada death-row prisoner, holding that the fact that he was never told that the FBI agent he was convicted of killing had previously investigated criminal conduct by the judge who presided over his trial, at which he was accused of killing that FBI agent, created an intolerable risk of bias that violated his right to due process.　

In the summer of 1990, the petitioner attempted to rob a bank in Las Vegas where an FBI agent happened to be on other business. The agent foiled the robbery, but was killed in the process. The petitioner left the bank with a getaway driver. The driver was apprehended later that afternoon. The petitioner was caught in Juarez, Mexico, tortured by Mexican police, and then returned to Las Vegas to face the murder charges here. As it turned out, the agent had been involved in prior government corruption investigations relating to the Colorado River Commission. One of the members of the Commission was a Nevada state trial judge. The trial in the bank robbery case in which the agent was killed was assigned to the same trial judge whom the agent had previously investigated. Although no charges arose from the investigation, the judge did not recuse himself from the petitioner's trial. Although the driver's counsel knew about the connection between the agent and the judge before trial, nobody informed the petitoner's counsel until well after the trial was over and the petitioner had been sentenced to death.　

After the trial, the judge recused himself because he threatened the petitioner's counsel with bar discipline after counsel investigated potential juror misconduct by interviewing jurors. A different judge denied the petitioner's motion for a new trial, but the problematic judge entered the death judgment. The Nevada Supreme Court affirmed the conviction and sentence on direct appeal, rejecting a claim of judicial bias based on comments the judge made in the courtroom. The problematic trial judge also ruled on the petitioner's first state habeas petition. Once the petitioner received appointed federal counsel, he subpoenaed FBI records to obtain information about the agent's investigation of the problematic judge. He then returned to state court with two more rounds of state habeas proceedings, in which he aired his new information and claims of judicial bias. The state courts denied these new claims as "law of the case," seeing no difference between them and the claim he raised on direct appeal. Ultimately, the federal district court granted the petitioner a new trial on grounds of judicial bias stemming from the judge's failure to disclose the fact that the agent whom the petitioner had killed had previously investigated him as part of a government corruption probe.　

The state appealed the grant of relief to the Ninth Circuit, which affirmed. The invocation of the law-of-the-case doctrine in state habeas proceedings did not amount to an adjudication of the judicial bias claim on the merits for AEDPA purposes. On direct appeal, the petitioner was complaining about statements the judge made in the courtroom. He had no idea about the connection between the judge and the agent until he filed his second and third rounds of state habeas proceedings. At most, this was an adjudication of a claim of actual bias, not a claim that a reasonable observer would think that a judge was biased. The Nevada Supreme Court has historically failed to appreciate the difference between the two kinds of judicial bias, requiring correction from the U.S. Supreme Court. See Rippo v. Baker, 137 S. Ct. 905 (2017). Thus the federal district court correctly reviewed the petitioner's judicial bias claim relating to the undisclosed connection between the agent and the judge de novo. In light of the FBI's involvement in the petitioner's torture at the hands of Mexican police and their investigation into the judge's conduct that led to no charges being filed, a reasonable observer would perceive a risk that an average judge would be biased under those circumstances. The petitioner had been accused of killing the very FBI agent who had investigated the trial judge, and in order to try the case the judge had to resolve accusations relating to the FBI's involvement in the petitioner's torture by police in Mexico. The petitioner deserved a new trial.　

Congratulations to Assistant Federal Public Defenders Randolph Fiedler, Sylvia Irvin, and Mike Pescetta of Las Vegas.　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/25/15-99001.pdf

Case o' The Week: FPD v. CJA, Sealing Survives Another Day: Boyd v. Sleugh and Sealing of Rule 17(c) Applications

  Donut decision tasty, to the Ninth.

United States, Shawndale Boyd, v. Sleugh, 2018 WL 3520404 (9th Cir. July 23, 2018), decision available here.

Players: Decision by D.J. Berg, joined by Judges Wallace and Berzon.

  Affirmance of decisions by M.J. Ryu and D.J. Gonzalez Rogers.

  Important win earning decision of first impression for N.D. Cal. AFPDs Ellen Leonida and Todd Borden.

  Hard-fought appeal by CJA Attorney Ethan Balogh.

Facts: Among other offenses, Boyd (FPD client) and Sleugh (CJA client) were charged with murder. Id. at *1.

  Before trial, Boyd’s attorney filed under-seal applications for Rule 17(c) subpoenas. Those applications and affidavits sought subpoenas to produce cell phone records and surveillance videos. Id.

  Boyd later pleaded guilty, cooperated, and testified against Sleugh, who was convicted after a trial. Id. at *2.

  On appeal, Sleugh’s CJA appellate counsel (Ethan Balogh) sought disclosure of the sealed affidavits in support of Boyd’s applications for Rule 17(c) subpoenas. Id. at *2. “[ ] Sleugh assert[ed] that Boyd’s testimony on behalf of the Government must have been inconsistent with any defense theory Boyd used to support the Rule 17(c) subpoena applications.” Id. at *2.

  Magistrate Judge Donna Ryu denied Sleugh’s motion to unseal, and was affirmed by ND Cal District Judge Yvonne Gonzalez Rogers. Id. at *2-*3. 
  Sleugh appealed the denial of his motion to unseal to the Ninth. Boyd intervened, seeking to keep the affidavits sealed. Id. at *3.

Issue(s): “The issue on appeal in this case – a question of first impression for this Circuit – is whether one defendant in a criminal case can get access to the Rule 17(c) subpoena applications and supporting documents that were filed under seal by another defendant’s attorney in the same criminal case, either because of the presumptive right of public access to court records or upon a showing of special need.” Id. at *1.

Held: “In view of the circumstances presented here, the district court properly denied the request for disclosure, and we affirm.” Id. at *1.

  “[W]e hold that there is no presumption of public access under the First Amendment or common law that attaches to Rule 17(c) subpoena applications and their supporting materials. Accordingly, parties can only justify accessing sealed or in camera Rule 17(c) subpoenas, subpoena applications, and supporting documents by demonstrating a ‘special need.’ Kravetz, 706 F.3d at 56.” Id. at *6.

  “We hold that Sleugh failed to present a ‘special need’ to access Boyd’s sealed Rule 17(c) subpoena applications.” Id. at *7.

  “Unsealing Boyd’s Rule 17(c) subpoena applications could reveal Boyd’s defense theories to the state and federal governments for any future trial. The prospect of undermining the confidentiality of Boyd’s defense strategies justified sealing these materials in the first place, which Sleugh does not contest. It is no different now.” Id. at *8.   

Of Note: Boyd won here: the Rule 17(c) affidavits remained sealed. Sleugh does not, however, endorse perpetual sealing of all affidavits, in perpetuity. Importantly, Boyd still potentially faces state homicide charges that have no statute of limitations. As the Ninth emphasized, “This is not to say that all Rule 17(c) subpoena applications may or should remain under seal forever. There may be instances when there is no longer any need to protect a defendant’s theories of defense (e.g., upon the defendant’s death, or when the statute of limitations has run on all charges).” Id. at * 6 & n.7.

  Sleugh presented competing, compelling policy concerns –and its holdings leave plenty of unanswered questions that await further litigation.

How to Use: When your co-D flips, read Sleugh and mull deeply. The Ninth left windows for disclosure of Rule 17(c) applications and affidavits open, if there is a sufficient showing and a cooperating co-D has no future exposure. Id.

  By contrast, if you are submitting a Rule 17(c) subpoena application, read Sleugh and mull deeply. Future disclosure of sealed affidavits is possible (particularly if your client later flips). Affidavits should be carefully written with that potential future disclosure in mind.

                                               

For Further Reading: What does Dunkin’ Donuts have to do with attorney-client confidentiality?

  For the donut dispute that produced the Kravetz rule adopted by the Ninth in Sleugh, see “Glaze of Secrecy Kept in Donuts Sentencing Case,” available here.  

Image of Dunkin’ Donuts from https://www.qsrmagazine.com/news/why-dunkin-donuts-still-winning-breakfast-customers .

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

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United States v. Sleugh, No. 17-10424 (Berg (EDMI) with Wallace and Berzon) --- The Ninth Circuit affirmed an order denying one codefendant's motion to unseal applications filed under Rule 17(c) by another codefendant for subpoenas. These applications are not subject to the common-law right of public access to court records, and on the facts of this case the codefendant did not show a special need to see the subpoena applications.　

The appellant here and his codefendant (who intervened in the appeal) were charged with a drug-trafficking conspiracy in which the delivery person was killed. As part of pretrial discovery, the codefendant applied for subpoenas to obtain certain cell phone records and surveillance videos. These applications were filed ex parte and under seal as required by local rules. But then the codefendant pleaded guilty to everything but the murder and agreed to testify against the appellant at his trial. The appellant lost at trial and received a life sentence; the codefendant got three years for his cooperation. The appellant then appealed his conviction and sentence; his efforts to investigate potential appellate arguments in that case led to the events that are the basis for this appeal. (This main appeal remains unresolved; it was stayed pending the resolution of the issue in this appeal.)　

The appellant returned to the district court to ask to unseal the supporting materials attached to the codefendant's subpoenas; in light of the codefendant's cooperation, he wanted to argue that the codefendant's trial testimony was inconsistent with statements he may have made in connection with the applications for the subpoenas. The magistrate judge who issued the subpoenas denied the request to unseal the applications, and the district court affirmed. The codefendant intervened in this appeal to protect the confidentiality of his subpoena applications.　

Subpoena applications can be made under seal in criminal cases to protect a defendant's right to keep his defense strategy secret. The court agreed with the First Circuit's conclusion that this right trumps the public's common-law and First Amendment rights of access to court documents. Only a showing of special need can overcome the defendant's right, but here there was no special need. Appellate counsel's need to investigate was not enough, and the appellant did not identify any aspect of the codefendant's testimony that he believed was false. The possibility that the supporting materials might be impeaching was not relevant to the pending appeal; the materials were not in front of the jury, and the appellate court is not a fact-finding body. Plus the supporting materials pre-dated the codefendant's decision to cooperate. However, the court did admonish the district court that if the need to keep the supporting materials under seal has passed, "then perhaps they should be unsealed." 　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/23/17-10424.pdf

1. United States v. Robertson, No. 16-10385 (Wallace with Rawlinson and Watford) --- The Ninth Circuit affirmed a conviction on numerous counts of theft of mail by a postal employee and possession of stolen mail. The court held that the district court properly declined to dismiss the indictment and properly instructed the jury in light of the government's destruction of a surevillance video that the defendant said was exculpatory. The court also held that the prosecutor did not violate the rule of exclusion during the trial, that the district judge properly declined to require the government to produce investigatory notes under the Jencks Act, and that the instructions on the element of theft by embezzlement was not reversible plain error.　

Postal inspectors began to believe the defendant, a postal employee, was stealing mail on the job when customers complained they were not receiving gift cards in the mail and then it turned out that the defendant's adult daughter was using the gift cards, which were routed for delivery on days when the defendant was working. The inspectors videotaped her removing test letters from the delivery hamper and place them in a purse that she concealed within another purse. She was arrested and brought to the station manager's office, where she declined to be interviewed but consented to a search of her purse. The search revealed no mail. They let her go but continued to monitor her car. They later returned to the station and found some of the test letters in a hamper near where the defendant had placed her purse earlier in the day. Before trial, the defendant moved to dismiss the indictment on the ground that the surveillance video was not preserved and would have exonerated her. The district court found no bad faith on the part of the postal inspectors in terms of their handling of the video, and denied the motion. After a 13-day trial, the defendant was convicted on 14 counts and sentenced to nine months in prison followed by three years of supervised release and a restitution order.　

The district court correctly denied the motion to dismiss, because the inspector's testimony on which it based its finding of no bad faith was not clearly erroneous. The videotape was deleted as part of an automatic procedure that took place every 30 days. By the time the agent contacted the company responsible for monitoring the security cameras, it was too late. And the video's exculpatory value was speculative, because it offered only a partial view of the defendant's car and would not have conclusively identified any particular person near the car. The defendant's failure to apprise the inspector sooner about the potential exculpatory value of the video also bolstered the finding of no bad faith. And because the inspector's conduct fell within a "general range of reasonableness," the district court did not abuse its discretion in failing to give a lost-evidence instruction to the jury.　

A conversation outside the courtroom between the prosecutor, the inspector, and a fingerprint examiner on day 3 of the trial did not violate the rule of exclusion of witnesses (FRE 615). But the prosecutor's decision to allow two testifying agents to review transcripts of testimony of earlier witnesses was more problematic. The court first interpreted Rule 615 to apply equally to observing witnesses on the stand and reviewing the testimony of a witness in preparation for testimony later in the trial. But here the trial judge assumed that the prosecutor violated the rule by allowing the witness to review the transcript and then fashioned an appropriate sanction by allowing defense counsel to cross-examine the witness about the nature of his preparation to testify. The defendant did not argue why this remedy was insufficient under the circumstances.　

The Jencks Act did not require disclosure of "fragmentary" notes taken by the postal inspector after he testified at trial. Nor did it require an in camera inspection of the notes to determine whether disclosure was required. 　

Finally, the jury instructions tracked the language of the statute, and were not a constructive amendment to the indictment.　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/20/16-10385.pdf

Case o' The Week: .22s and the Yakima Blues - Barnes and Necessity / Justification Defenses in 922(g) cases

  Eastern Wha? means new bad law.

United States v. Barnes, 2018 WL 3468136 (9th Cir. July 19, 2018), decision available here.

Players: Decision by Judge Paez, joined by Judges Gould and Christen.

Facts: Yakima cops stopped Barnes, and (mistakingly) told him he was wanted for a felony. Id. at *1. (It was a misdo bench warrant). Barnes ran, was tackled and tazed, and had a .22 on him when searched. Id. at *2.

  Before his § 922(g) trial Barnes made a proffer for a “necessity defense.” Id. at *3. [Ed. Note: Judge Paez explains the distinctions between a “necessity” defense versus “justification” – this case is probably the latter. Id. at *8 & n.4]. 

  Barnes explained that he had been taking care of his meth-addicted adult son. Id. Barnes came across the gun in his house, grabbed it to keep it away from kids in the home, and was on the way to throw it in a dumpster when confronted by the cops. Id. at *3.

  The district court refused to allow a necessity / justification defense: Barnes was convicted at trial. Id.

Issue(s): “[Barnes] argues that the district court erred . . . by precluding him from presenting a necessity defense at trial.” Id. at *1.

Held: “A defendant is entitled to present evidence on a necessity defense and have the jury instructed accordingly once he has adequately established—through an offer of proof—that all four requisite factors are met: 

(1) he was faced with a choice of evils and chose the lesser evil; 

(2) he acted to prevent imminent harm; 

(3) he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and 

(4) there were no other legal alternatives to violating the law.” Id. at *8 (internal quotations, citations, and fn. omitted). Id. at *8. 

“[ ] Barnes’s offers of proof, even when viewed in the light most favorable to him, were insufficient to show that he acted to prevent imminent harm. “[T]he term ‘imminent harm’ connotes a real emergency, a crisis involving immediate danger to oneself or to a third party.” . . . There is no indication that Barnes acted in response to such a crisis. There was no evidence that the children had, for instance, already obtained possession of the gun or were about to do so. There was no evidence that the children were in close proximity to the firearm. At most, Barnes removed a dangerous weapon from a house where children were present . . . [T]he district court correctly denied Barnes’s request to present a necessity defense to the jury.” Id. (internal quotations and citations omitted).

Of Note: Barnes has a second disappointing holding, upholding the denial of a suppression motion. A [conspicuously unnamed] Yakima municipal judge failed to look at an incident report, or an affidavit, before “finding” probable cause for Barnes’ misdemeanor complaint. Id. at *2. Judge Paez finds “judicial abandonment.” Id. at *5. 

  However, in an unfortunate decision of first impression, the Ninth holds that, to overcome Leon good faith, a defendant must show both “judicial abandonment” and that the cops knew – or should have known – of the abandonment. Id. at *7. Barnes stumbled on this second step. 

  One gets the impression the Ninth isn’t keen on this rule, but finds itself “bound to follow the Supreme Court’s directives.” Id. at *7.

  Hopefully, Yakima defense counsel will explore complaints signed by this mystery municipal judge –how many complaints bear rubber stamps, in Eastern Washington?

How to Use: If you’re mulling this defense in a § 922(g) case, footnote four is where to start. Id. at *8 & n.4. Judge Paez explains how the Ninth considers this theory under the “justification” rubric in gun cases, and lays out the elements for the defense. Id. 

  A good blueprint when considering a justification challenge, for the waves of gun cases that await on the horizon.

                                               

For Further Reading: “Necessity,” “duress,” “justification:” this line of federal law is confusing. 

  For an interesting discussion of these theories, along with a thought-provoking recommendation, see Schwartz, Stephen S. (2008) “Is There a Common Law Necessity Defense in Federal Criminal Law?,” University of Chicago Law Review: Vol. 75 : Iss. 3 , Article 8, available here.

Image of “Welcome to Yakima” from http://www.thedailychronic.net/2014/27331/yakima-washington-bans-all-marijuana-businesses/

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

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Today the Ninth Circuit affirmed the conviction of a federal prisoner for being a felon in possession of a firearm and, over the dissent of a visiting district judge, affirmed the dismissal of a Nevada state prisoner's counseled, amended federal habeas petition as untimely.　

1. United States v. Barnes, No. 16-30203 (Paez with Gould and Christen) --- The Ninth Circuit affirmed a conviction for being a felon in possession of a firearm, holding that the good-faith exception to the exclusionary rule applied and did not require suppression of evidence found in a search incident to arrest pursuant to an arrest warrant, and that the trial judge properly declined to instruct the jury on a necessity defense because the defendant did not produce sufficient evidence to support it.　

The defenant and his son were both wanted men -- the son had an outstanding felony arrest warrant, while the defendant had a misdemeanor warrant out for failing to appear at a hearing on a traffic citation. Yakima police spotted the defendant and arrested him believing that he had the felony arrest warrant, but in fact the misdemeanor arrest warrant was the true basis for the arrest. The defendant moved to suppress, arguing that the misdemeanor arrest warrant was invalid because a city magistrate issued it without examining whether there was probable cause to believe that he had committed a crime. The district court held an evidentiary hearing, and an official at the municipal court testified that the warrant had issued without a probable-cause examination. But the Ninth Circuit upheld the denial of the motion to suppress, because the officers acted in good-faith reliance on the issuance of the warrant because they could not have reasonably known that the judge did not properly issue the warrant.　

The defendant asserted that he had taken possession of the gun in order to keep it away from his son's small children, whom he was taking care of because his son was addicted to methamphetamine. The judge declined to instruct the jury about a necessity defense under these circumstances because the defendant did not assert that there was an immediate threat of death or bodily injury to his grandchildren. The Ninth Circuit agreed with the district court's assessment of the defendant's proffer, and upheld the decision not to give an instruction on the necessity defense.　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/19/16-30203.pdf

　

2. Ross v. Williams, No. 16-16533 (Ikuta with M. Smith; dissent by Bates (D.D.C.)) --- A divided panel of the Ninth Circuit affirmed the dismissal of a Nevada state prisoner's counseled amended petition for a writ of habeas corpus, holding that the amended petition did not relate back to the filing date of the pro se petition because the pro se petition did not expressly incorporate by reference material that the petitioner attached to the petition he filed using the district court's standard form. Under the habeas rules, it was incumbent on him to expressly incorporate the attachments by reference in his pro se filings, because the rules allow the courts to limit consideration of attachments if the pro se litigant fails to expressly do that. The prisoner did not follow the instructions on the form or in the habeas rules that required him to state the facts that support his claims or expressly incorporate them by reference. The panel rejected the dissent's suggestion that a liberal construction of his pro se filings required them to read the attachments to discover the factual basis of his pro se claims, and then allow the counseled amendment to expand on those facts and have the amended petition relate back under Rule 15 of the Federal Rules of Civil Procedure.　

Kudos to Assistant Federal Public Defender Jonathan Kirschbaum for a hard-fought appeal.　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/19/16-16533.pdf

Case o' The Week: "Discomfited" Will Do - Hernandez and Acceptance of Responsibility After Trial

  Trials aren’t tribulations.

United States v. Albert Hernandez, 2018 WL 3352608 (9th Cir. July 10, 2018), decision available here.

Players: Decision by Judge McKeown, joined by Judge Murguia. Dissent by Judge Rawlinson.

  Admirable win (on this issue) for D. Nev. AFPDs Amy B. Cleary and Alina Shell.

Facts: Hernandez, a coach, had a sexual relationship with a 17-year-old minor, and they exchanged sexually-explicit images. Id. at *1.

  The relationship was discovered and Hernandez was charged with a host of federal crimes. He was convicted after a jury trial. Id. at *2.

  The district court denied acceptance, and sentenced Hernandez to 284 months. Id.

Issue(s): “[Did] the district court . . . increase[ ] Hernandez’s sentence

or with[hold] a reduction for acceptance of responsibility based on Hernandez’s decision to go to trial[?]” Id. at *4.

Held: “[B]ecause the record suggests that the district court penalized Hernandez by increasing his sentence based on his decision to exercise his Sixth Amendment right to go to trial, we issue a limited remand for resentencing.” Id. at *1.

  “[O]ur review of the sentencing transcript leaves us discomfited that the district court penalized Hernandez for his assertion of protected Sixth Amendment rights. The district court emphasized Hernandez’s decision to go to trial five separate times during the sentencing hearing. The court first stated that ‘it would mean something if [Hernandez] took responsibility before the trial.’ The court then repeated that ‘contrition means something when it happens before trial.’ . . . . Still further, the court continued: ‘[W]hat I look for is somebody who feels remorse before the trial, before you put this young girl through the—through the agony of testifying, having to testify to what went on, and then identify pictures of herself, personal pictures. So, I don’t see—I don’t see much remorse there, Mr. Hernandez.’ This comment revealed the court’s dim view of Hernandez’s right ‘to be confronted with the witnesses against him.’ U.S. Const. amend. VI.” Id. at *5.

  “The district court’s statements run headlong into our precedent that a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment.” Id. at *6 (citation omitted).

Of Note: The principled analysis of this issue in Hernandez recognizes the reality of federal court: our clients are almost always forced to plea. The government surely has enough arrows to coerce guilty pleas, without also adding “acceptance of responsibility” to the quiver.

  As Judge McKeown thoughtfully explains, “Although most federal criminal cases result in guilty pleas, the Sixth Amendment right to trial remains an important safeguard to defendants who insist on their innocence. Permitting courts to impose harsher sentences on those few defendants who do go to trial could in practice restrict the exercise of the right to those with unusual risk tolerance—or uncommon courage.” Id. at *6.

  On this issue, Hernandez is a great opinion – use it to fight for the “acceptance” reduction, even after a trial.  

How to Use: Like a liturgy, the district court intoned an assurance that the Section 3553(a) factors had been considered before imposing this whopping sentence. “But reciting this boilerplate statement immediately after chastising Hernandez for going to trial, and without any explanation, does not cure the infirmities in the district court’s justification for the sentence imposed.” Id. at *6.

  Use Hernandez to battle the government’s attempts to use a district court’s vague Section 3553 assurances like sentencing sanitizer.

                                               

For Further Reading: Hernandez confirms what we know too well: systemic sentencing penalties have virtually eliminated the constitutional right to a trial.

  For a compelling analysis documenting this problem, with recommendations for reform, see NACDL’s recent report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, available here. 

Image of jury from http://www.amalaw.org/2018/02/03/is-it-possible-for-a-client-to-win-a-dui-jury-trial/

Image of “The Trial Penalty” Report from https://www.nacdl.org/trialpenaltyreport/

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

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United States v. Buenrostro, Nos. 16-10499, 17-15453 (Fletcher with Tallman and Morris (Montana)) --- The Ninth Circuit denied relief to a federal prisoner serving a sentence for drug trafficking, holding that he was ineligible for a sentence reduction after his sentence was commuted from a mandatory life sentence to 30 years by President Obama and that the commutation did not allow him to file a second or successive § 2255 motion to raise a claim of ineffective assistance of counsel in connection with plea bargaining. The fact that the original sentence was mandatory because of his prior drug convictions meant that the applicable Guidelines range was not reduced in light of Amendment 782, the drugs minus two amendment. And the commutation order issued by President Obama was not an intervening judgment that allowed him to file a new § 2255 motion under the rule of Magwood v. Patterson, 561 U.S. 320 (2010).　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/16-10499.pdf

On Wednesday the Ninth Circuit (1) affirmed a conviction for bid rigging under the Sherman Act, (2) vacated the death sentence of an Arizona state prisoner and directed the state courts to conduct new penalty-phase hearings, and (3) by a divided vote, vacated the conviction of a person convicted of traveling abroad for the purpose of engaging in illegal sexual acts.　

1. United States v. Joyce, No. 17-10269 (Murphy (CA10) with Paez and Ikuta) --- The Ninth Circuit affirmed a conviction for bid rigging under 15 U.S.C. § 1, the Sherman Act, and held that a scheme to suppress competition by not bidding on certain properties at a public foreclosure auction is a classic bid rigging scheme that is per se illegal, such that the government need not prove the existence of a particular agreement to restrain trade in order to prove a violation of the Sherman Act.　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/17-10269.pdf

　

2. White v. Ryan, No. 15-99011 (Nguyen with M. Smith and Murguia) --- A three-judge panel of the Ninth Circuit unanimously reversed the denial of a habeas corpus petition filed by an Arizona death-row prisoner, holding that he received ineffective assistance of counsel at the second penalty phase of his capital proceedings when his lawyer failed to challenge the sole aggravating factor that made him eligible for the death penalty and failed to adequately investigate and present mitigating evidence in that proceeding. The court remanded the case with instructions to grant the writ and conduct new capital sentencing proceedings in state court.　

The prosecution relied on only one aggravating factor to make the petitioner eligible for a death sentence -- that he committed the murder in expectation of pecuniary gain, here, that his girlfriend would collect proceeds from a life insurance policy that covered the victim, her husband. Counsel believed that the state supreme court had upheld this finding in the direct appeal, but that was incorrect; in fact, the basis for holding the second penalty hearing allowed counsel to present new arguments against this aggravating factor. In state postconviction proceedings, the court held that the failure to challenge this aggravating factor was not unreasonable. But the record made clear that counsel had no strategic basis for failing to challenge this aggravating factor, and that the failure was entirely the result of a misunderstanding of the reason for the resentencing hearing and of state law.　

Counsel further did not investigate the petitioner's extensive history of mental illness, which was apparent to every lawyer who had previously handled the petitioner's case. (In federal habeas proceedings, his mental illness led to competency proceedings that were ultimately mooted by the Supreme Court's decision in Ryan v. Valencia Gonzales, 568 U.S. 57 (2013).) Indeed, the petitioner's mental illness was a large part of the basis for holding a second penalty hearing. His history was well documented by the Arizona prison system as well. In finding no ineffective assistance, the state postconviction court reasoned that counsel was not required to gather records of his mental health unless there was some suggestion that they would have mitigating value. But because there was such evidence, the postconviction court could not reasonably have said that it was reasonable for counsel not to gather the records. Counsel's total failure to investigate mental health would have had an affect on the sentencing proceeding. The 12 different types of mental health evidence, considered cumulatively, were plainly relevant to the decision to impose the death penalty -- indeed, on direct appeal from the resentencing, the state supreme court had affirmed the sentence by a divided vote.　

Congratulations to Assistant Federal Public Defender Jennifer Garcia of Phoenix.　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/15-99011.pdf

　

3. United States v. Pepe, No. 14-50095 (Nguyen with Kleinfeld; dissent by Thomas) --- A divided panel of the Ninth Circuit vacated convictions for engaging in illicit sexual conduct in foreign places, in violation of 18 U.S.C. § 2423(c). The trial court instructed the jury consistent with United States v. Clark, 435 F.3d 1100 (9th Cir. 2006), which punishes those who travel in foreign commerce and thereafter engage in illicit sexual acts. After Clark, Congress amended the statute to punish those who either travel in foreign commerce or reside temporarily or permanently in foreign commerce and engages in illicit sexual acts. The court held that in light of the subsequent amendment, Clark had been overruled, and so the conviction had to be vacated because the defendant here (who had been living in Cambodia for a long time before he bought sex from several young girls, binding and drugging them in some instances in order to accomplish the sexual acts) may not have engaged in conduct that was punished by the pre-amendment version of the statute. Chief Judge Thomas disagreed that the subsequent amendment to the statute implicitly overruled Clark, and would have affirmed the convictions and 210-year total sentence because the jury instructions were proper under Clark, which was binding at the time of trial here.　

Congratulations to Deputy Federal Public Defender James Locklin of Los Angeles.　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/14-50095.pdf

United States v. Hernandez, No. 13-10428 (McKeown* with Murguia; partial dissent from Rawlinson) --- In a previous round of this appeal from a sentence imposed following a jury trial on child pornography charges, the panel (then with Judge Kozinski on it) remanded the case to the district court for findings about the distribution enhancement. In this appeal following the limited remand, then panel (with Judge McKeown replacing Judge Kozinski, who retired after oral argument) affirmed the distribution enhancement, holding that sharing an image of child pornography with the child depicted in that image constitutes "distribution" under USSG § 2G2.1. The panel remanded the case again for the limited purpose of allowing the district judge to clarify whether he denied the defendant a downward adjustment for acceptance of responsibility because he exercised his right to trial.　

This case involves sexting, which would not ordinarily generate child pornography charges. But the defendant was a girls' softball coach, and the other person in the relationship was a 17-year-old girl who was on the team. They were sharing images of themselves with each other, including naked images of the girl and images of themselves engaged in sexual acts. They were caught when the girl's father saw the images on her phone. The defendant went to trial, lost, and received a 284-month sentence. In the previous stage of the appeal, the panel remanded for findings in light of United States v. Roybal, 737 F.3d 621 (9th Cir. 2013), directing the court to consider whether the upward adjustment for "distribution" under the Guidelines was proper where the images were shared only between these two people. The court held unanimously that it was.　

There is a challenge to the substantive reasonableness of the sentence in this appeal. But the panel did not resolve it, because it first had to resolve a procedural question about the sentencing judge's reasons for denying a downward adjustment for acceptance of responsibility. The judge faulted the defendant for his apparent lack of contrition at sentencing. "I have never had a defendant," he said, " -- there have been one or two maybe -- after being found guilty, who didn't feel contrition.... everybody feels contrition now. Now, when they are looking at spending time in prison, everybody feels remorse for what they did." The judge observed that there was no remorse for "putting the victim through the agony of testifying at trial." And then he said to the defendant, "You decided to roll the dice, and it came up snake eyes. You didn't think she'd testify, and she did. You went -- you wanted to go to trial, so you went to trial. And Probation rightly recommends 327 months for that." That last statement came right before the judge pronounced the sentence. Under these circumstances, the court said, the judge ran "headlong" into the Ninth Circuit precedent that forbade judges from relying on the defendant's decision to exercise his right to trial as a basis for denying a downward adjustment for acceptance of responsibility. The panel remanded the case to give the judge an opportunity to explain that that was not what he was doing.　

Judge Rawlinson dissented from the limited remand. She did not read the defendant's brief as challenging the procedural reasonableness of the sentence (a failure to award the downward adjustment for acceptance of responsibility), but only the substantive reasonableness of the sentence. Under that rubric, she saw no problem with the sentencing judge's statements. "It is apparent that the primary focus of the court's concern was Hernandez's manipulation of the victim and lack of remorse." She would have affirmed the sentence in its entirety.　

Congratulations to Assistant Federal Public Defender Amy Cleary of Las Vegas.　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/10/13-10428.pdf

United States v. Obendorf, No. 16-30188 (Christen with Gould and Paez) --- The Ninth Circuit affirmed misdemeanor convictions for conspiracy to bait, and for baiting, an area of a farm for the purpose of hunting ducks in violation of the Migratory Bird Treaty Act. The defendant, an Idaho farmer, was sentenced to three years of probation and fined $40,000 following a seven-day jury trial. The court held that because a regulatory exception for hunting over ceretain farmland did not apply to the baiting charges in this case, the jury was properly instructed and as a result any limitation on the scope of cross-examination of government expert witnesses was harmless.　

The defendant's farmland lies underneath the migratory path of certain ducks. During the annual fall harvest, he would usually completely harvest the corn in his fields. But in a certain section of the farm near a pit blind, he would only harvest every other row (or direct his employees to harvest only every other row, hence the conspiracy charge), and leave massive amounts of corn on the ground to attract the ducks that would pass overhead. Inspectors from the federal Fish and Wildlife Service and from the state department of fish and game placed cameras on the defendant's field in order to monitor the activity near the hunting blind. As a result, the defendant was charged with two misdemeanor counts of conspiracy to bait the field, and of baiting the field, in violation of the Migratory Bird Treaty Act.　

At trial, the parties agreed that in order for the government to obtain a conviction, it would have to prove that the regulatory exception that allows hunting over farmland where migratory birds would feed did not apply if the birds were feeding on standing crops that were left behind as part of a normal agricultural practice. In order to prove that this exception did not apply, the government called three expert witnesses from the University of Idaho's agriculture department to testify that the defendant's farming practices in the area of his farm near the hunting blind were not normal. The defendant sought to cross-examine these witnesses in order to get them to offer an opinion that they were normal, but the judge did not allow him to do so. In addition, multiple witnesses testified that the defendant had ordered his employees to plow the area near the hunting blind so as to bait it for the passing ducks. The jury convicted the defendant on both counts after a seven-day trial, and he was sentenced to three years of probation and to pay a fine of $40,000.　

On appeal, the government argued for the first time that the exception for normal agricultural practices did not apply to charges of unlawful baiting. The Ninth Circuit allowed the government to change its theory of the case on appeal, because the change was purely legal and addressing the government's new-found argument would allow the court to clarify the law. Then the court agreed with the government that the exception only excused charges of unlawful hunting (or "taking" of migratory birds), not unlawful baiting. Thus the court held that any error in instructing the jury on the government's trial theory was harmless (because the government's trial theory effectively amounted to the government assuming the burden of proving more than was legally necessary to obtain a conviction).　

The court also held that any error in limiting the defendant's cross-examination of the government's agricultural experts was harmless. Since the exception did not apply to the baiting charges, there was no error in preventing him from eliciting their opinion that his farming practices were normal. And to the extent that cross-examination of these witnesses could have shed light on the defendant's intent, the court held that the testimony from his (possibly disgruntled) employees about his express directives to bait the hunting blind was overwhelming.　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/09/16-30188.pdf

Case o' The Week: Conviction, Old, yet Ninth Upholds - Hohag and Conditions of Supervised Release, SORNA

The Hon. Judge Susan P. Graber

Not too old, if SORNA, we’re told.

United States v. Hohag, 2018 WL 3149773(9th Cir. June 28, 2018), decision available here.

Players: Decision by Judge Graber, joined by Judge M. Smith and DJ Hellerstein. 

  Hard-fought appeal by AFPD Francesca Freccero, D. Or. FPD.

Facts: Hohag was convicted of rape of a minor in 1992. Id. at *1. As part of that sentence, he was required to register as a sex offender. Id. 

  He moved to several states without registering, was arrested in Oregon in 2016, charged federally and convicted of failure to register as a sex offender. Id. 

  At sentencing, Hohag explained he had undergone sex offender treatment while incarcerated, and provided a polygraph confirming he was truthful in denying he’d had sexual contact with a minor since his release from supervision in ’02. Id. He was sentenced to time served. 

  The court imposed conditions of supervised release that included participating in a “sex-offense specific assessment” and submitting to polygraph testing “in conjunction with the . . . assessment.” Id.

Issue(s): “Defendant timely appeals, challenging only the two conditions of supervised release that relate to his history of sexual misconduct.” Id. at *2.

Held: “Together, T.M. and Johnson illustrate that, when we consider a condition of supervised release meant to address a defendant’s history of sexual misconduct, we look to at least two factors. First, as in every case, we consider the burdensomeness of the condition at issue. An assessment is significantly less burdensome than required treatment. Second, we ask whether the condition is reasonably necessary to accomplish one of the legitimate goals of supervised release. In answering that question in this context, we approach with some skepticism a condition that rests solely on an old sex offense. But when some recent event suggests that a defendant still poses a risk of engaging in sexual misconduct, there exists a greater need for a condition meant to address a defendant’s history of sexual misconduct.” Id. at *3.

  “Because the conditions at issue are not particularly burdensome and because they relate to Defendant’s crime of conviction, we conclude that the district court did not abuse its discretion.” Id. at *5.

Of Note: In United States v. T.M., 330 F.3d 1235, 1239–40 (9th Cir. 2003), the Ninth reversed sex-offender treatment conditions imposed on the back of an old sex-offense prior.

  In United States v. Johnson, 697 F.3d 1249, 1251 (9th Cir. 2012), the Ninth upheld a sex-offender assessment condition despite equally old priors.

  In the present case, Hohag, Judge Graber concedes (in a considerable understatement) that these cases arrive at “seemingly conflicting conclusions.” Id. at *3. The analysis in Hohag struggles to explain the distinctions, and concludes that the conditions here – an assessment – based on a “related” sex offense (a SORNA crime), support the conditions. Id. at *4-*5. It is a troubling outcome, assuring us that a sexual-assessment is a “minimal burden on [Hohag’s] liberty,” and that polygraph testing is a “relatively uninstrusive means of evaluating a defendant’s risk of engaging in sexual misconduct.” Id. at *3.

  Like it or no, Hohag joins T.M. and Johnson in the Ninth’s – complicated – guidance on supervised release conditions for sex offenders.

How to Use: A (small) hook in Hohag is the fact that the condition imposed was just an assessment – it was not the more intrusive sex-offender treatment. Id. at *4. Judge Graber relies on that heavily on that distinction while upholding the condition. Id.

  Push back when Probation wants a condition of treatment on an old offense: that falls closer to the prohibited conditions in T.M., in the spectrum laid out by Judge Graber in Hohag.  

                                               

For Further Reading: The defense argued that the Sentencing Commission did not recommend sex offender assessments as a condition of supervised release for SORNA convictions (like the one underlying Hohag). Id. at *4. “Meh,” sniffed the Ninth – Guideline conditions are “only advisory.” Id.

   Like the Ninth, the Second Circuit also seems increasingly indifferent to the Commissions’ wisdom. For an interesting piece on that trend, see Substantive Reasonableness Review Finally Getting Teeth in the Second Circuit, available here.

Image of the Honorable Judge Susan P. Graber from https://twitter.com/scotusambitions/status/570100615684227072

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

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