Wednesday, October 17, 2018

US v. Sellers, No. 16-50061 (10-15-18)(Nguyen w/Simon; Nguyen concurring; Graber dissenting).  In a significant discovery opinion, the panel majority held that in stash house reverse-sting cases, claims of selective enforcement are governed by a less rigorous standard than that applied to claims of selective prosecution under US v. Armstrong, 517 US 456 (1996). The 9th emphasizes the difference between selective prosecution and selective enforcement (9). The 9th stresses that the police do not enjoy the enforcement presumption of prosecutors and that discovery of similarly situated individuals is impossible to obtain by any other means. The 9th joins the 3rd and 7th Circuits in this distinction.  (12). The order denying discovery is vacated and the case is remanded for the limited purpose of such discovery under the articulated standard:

“Today we join the Third and Seventh Circuits and hold that Armstrong’s rigorous discovery standard for selective prosecution cases does not apply strictly to discovery requests in selective enforcement claims like Sellers’s. Contrary to Armstrong’s requirement for selective prosecution claims, a defendant need not proffer evidence that similarly situated individuals of a different race were not investigated or arrested to receive discovery on his selective enforcement claim in a stash house reverse-sting operation case. While a defendant must have something more than mere speculation to be entitled to discovery, what that something looks like will vary from case to case. The district court should use its discretion—as it does for all discovery matters—to allow limited or broad discovery based on the reliability and strength of the defendant’s showing.[note omitted]” (14)

In a concurring opinion, Nguyen emphatically states that there is no legitimate dispute that stash house reverse-sting operations primarily impact minorities.  The government refuses to disclose any information as to whether such operations could be racially biased.  She stresses –hints?—that a district court in assessing discovery claims as evidentiary gatekeeper should recognize that selection of location of such operations should have evidentiary significance.

Dissenting, Graber argues that the majority should not discuss the standard for selective enforcement, because under any standard, defendant’s proffer was insufficient.

Congrats to CJA Attorney Carl Gunn for this win.

 The decision is here:

Sunday, October 14, 2018

Case o' The Week: They Beat Carillo, but Not the Conviction -- Gonzalez and Objects of Sec. 241 Conspiracies

   Unanimousish close enough, for conspiracy conviction.

Mr. Gabriel Carillo, victim of assault by L.A. County Jail deputies
United States v. Eric Gonzalez, 2018 WL 4904767(9th Cir. Oct. 10, 2018), decision available here.

Players: Decision by Judge Watford, joined by Judge Bybee and Sixth Cir. Judge Rogers.

Facts: Carillo was suspected of smuggling a cell phone into the Los Angeles County Men's Central Jail during a visit. Id. at *2. During a search, Carillo and Deputy Ayala got into a verbal spat. Id. More deputies were called: one punched the handcuffed Carillo. Carillo fell to the floor, and deputies punched and kicked him. Id. Carillo suffered bone fractures and a broken nose. Id. 
  Ranking officer Sgt. Eric Gonzalez huddled with his officers to “concoct a story that would justify their use of force.” Id.
  Gonzalez and two officers were charged federally. Id. “Count One charged Gonzalez and Ayala with a § 241 conspiracy that had two objects: (1) to deprive Carrillo of his Fourth Amendment right to be free from the use of excessive force; and (2) to deprive Carrillo of his due process right not to be prosecuted on the basis of falsified evidence. The jury returned a general verdict finding both defendants guilty of Count One . . . .” Id.
  On appeal Sgt. Gonzalez and Deputy Ayala challenged the sufficiency of the evidence for the conspiracy conviction. Id.

Issue(s): “Gonzalez and Ayala concede that there was sufficient evidence to support the second object. They contend that the verdict on Count One must nevertheless be reversed because there was insufficient evidence to support the first object and the jury’s general verdict makes it impossible to tell which of the two objects the jury agreed upon.” Id.

Held: “[W]e begin by rejecting the flawed premise of their argument. Gonzalez and Ayala assume that whenever one object of a multiple-object conspiracy is not supported by sufficient evidence, a general verdict must be set aside. The Supreme Court foreclosed that very argument in Griffin v. United States, 502 U.S. 46 . . . (1991). There, the Court held that reversal is required only if one of the objects of the conspiracy is legally deficient —for example, because the conduct underlying the object is protected by the Constitution, occurred outside the statute of limitations, or ‘fails to come within the statutory definition of the crime.’ Id. at 59 . . .. In that scenario, if the basis for the jury’s verdict is unclear, reversal is required because we do not expect jurors to be able to determine “whether a particular theory of conviction submitted to them is contrary to law.” Id.; . . . . The rule is different when all objects of the conspiracy are sound as a legal matter, but one of them lacks adequate evidentiary support. Because ‘jurors are well equipped to analyze the evidence,’ we can be confident that the jury chose to rest its verdict on the object that was supported by sufficient evidence, rather than the object that was not. Griffin, 502 U.S. at 59, 112 S.Ct. 466. In this latter scenario, the verdict stands.
   This case is controlled by Griffin. Gonzalez and Ayala do not contend that either object of the conspiracy charged in Count One was legally deficient. They do not, for example, assert that the jury instructions improperly defined the elements of the crime. They argue only that the first object, concerning Carrillo’s right to be free from the use of excessive force, was not supported by sufficient proof. Even if we agreed with them on that point (which we don’t, for reasons explained below), they would not be entitled to reversal of their convictions on Count One. The evidence was sufficient to prove the second object, as they freely concede. That suffices to sustain the jury’s general verdict against the challenge Gonzalez and Ayala assert.” Id. at *4.

Of Note: Tough facts here, for the defense. See an L.A. Times article on the sentencing hearing, here

How to Use: The depressing rule of Gonzalez (and Griffin) is that there’s no need for jury unanimity on multiple objects of a conspiracy, if the objects of the conspiracy are legally crimes.
  Note, however, that if there’s a legal impediment to one of the objects of a conspiracy (like a statute of limitations problem, or a jurisdictional problem), a challenge still lies. Id. at *3. An important caveat to a depressing holding.
For Further Reading: Over the vehement objections of the California Senators, President Trump has nominated three new jurists for the Ninth -- despite the lack of blue slips.

The Honorable Senators Dianne Feinstein and Kamela Harris
   For an interesting account of the many issues facing the nation’s largest Circuit, see a recent CNN article here 

Image of Senators Feinstein and Harris from  

Steven Kalar, Federal Public Defender N.D. Cal. New website at


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Thursday, October 11, 2018

US v. Gonzalez, No. 15-50483 (10-10-18)(Watford w/Rogers & Bybee). The 9th affirmed “across the board” convictions of three LA Deputy Sheriffs who brutally beat a visitor to the central jail. The visitor was suspected of smuggling in a cell phone. While handcuffed, the sheriffs punched and kicked the victim and subsequently covered it up. There was sufficient evidence to find they sought to deprive the victim of his right to be free from excessive force and that they obstructed an investigation. 

The decision is here:

Payton v. Davis, No. 17-55054 (10-10-18)(Tallman w/Gould & Rawlinson). The 9th holds that Fed R Civ Pro 60(d) is subject to the COA requirements of 28 U.S.C. § 2253(c)(1). This arising from a murder and death penalty 40 years ago. This appeal arises from Brady and Massiah claims for use of an informant, and the allegation that the prosecutor committed fraud on the court by filing false affidavits. The 9th finds that Rule 60 needs a COA and one is not granted here.

Valiant efforts waged by AFPDs Michael Parente and Susel Carrillo-Orellana of Cal Central (L.A.).

The decision is here:

Tuesday, October 09, 2018

US v. Gray, No. 18-30022 (10-3-18)(per curiam w/  Leavy, Hawkins, & Tallman).

The 9th vacated a 20 month SR sentence and remanded. The 9th did so due to procedural error. The defendant admitted to a series of SR violations before a magistrate judge. The magistrate took the admission and recommended a 5 month sentence. The defendant asked for less. The recommendation went to the district court. The district court, without a hearing or notification, rejected the sentence recommendation and imposed 20 months. The sentence was based on factual assertions by the probation officer that in phone calls from the detention center, the defendant failed to really accept responsibility. 

The 9th held that the defendant had a right to address the allegations and to allocate. The defendant did not waive his right by his proceeding before the magistrate. The defendant did not expect a fourfold increase from 5 to 20 months.

Congrats to David Merchant and Joslyn Hunt, AFPDs with the Montana Federal Defenders.

The decision is here:


Sunday, October 07, 2018

Case o' The Week: Shades of Gray - United States v. Gray and Rule 32 rights at Form 12 sentencings

   Probation may see black and white, but there are many shades of Gray.
  United States v. Gray, 2018 WL 4763175 (9th Cir. Oct. 3, 2018), decision available here.

Players: Per curiam decision with Judges Leavy, Hawkins and Tallman. 
   Nice win for AFPDs David A. Merchant II and Josyln Hunt, District of Montana.

Facts: Ashley Gray was charged with violations of supervised release. Id. at *1. Gray was arrested and the district judge then referred the case to the magistrate judge “for hearing, finding of facts, and recommendation.” Id. 
  At the revocation hearing before the magistrate judge, Gray admitted to all but one of the allegations. Id. The guideline range was 4-10 months: Defense counsel asked for three months of custody; the government, five. Id. 
  The magistrate judge recommended five months. Id. 
  The MJ advised Gray she had the right to appear before the district judge, but would have to file a written objection within two weeks to do so. Id. Gray didn’t file any written objections to the magistrate judge’s findings and recommendation. Id. at *2. 
  The Honorable District Judge Lowell then relied on a Probation Officer’s (confidential) sentencing recommendation of 20 months. Id. The district judge considered Gray's monitored jail phone calls that – according to Probation -- revealed a “lack of remorse.” Id. Without a hearing, the district court imposed Probation's recommended custodial sentence of twenty months. Id. 
   The district court’s twenty-month custodial sentence was “four times the length of the sentence recommended by the magistrate judge and the government.” Id. at *3 (emphasis in original).

Issue(s): “Gray contends that the district court violated Federal Rule of Criminal Procedure 32 by failing to disclose to her factual evidence on which it relied at sentencing.” Id. at *2.

Held:The government concedes that the district court erred, and we agree.” Id. 
  “Rule 32 ‘require[s] the disclosure of all relevant factual information to the defendant,’ including ‘factual information underlying a probation officer’s confidential sentencing recommendation.’ . . . . In its order sentencing Gray, the district court relied on the probation’s officer confidential sentencing recommendation, which included factual information that had not been disclosed to Gray and to which she had no opportunity to respond before sentence was imposed. Accordingly, we must vacate and remand for resentencing.Id.

Of Note: For many in the Ninth, this Montana procedure seems foreign: a District Judge delegated sentencing of a supervised release violation to a Magistrate Judge? Here, Gray consented and agreed to proceed before the MJ. Doesn’t matter, explains the Ninth. “In conducting proceedings based on an order of reference by a district court, a magistrate judge does “not possess the authority to impose sentence; only the district court possesse[s] that authority.” Rodriguez, 23 F.3d at 921. Thus, even if the defendant is given an opportunity to appear and speak before the magistrate judge, the district court must provide the defendant an additional opportunity before the actual sentence is imposed.” Id. at *3.  

How to Use: There’s an interesting waiver holding buried in Gray. Gray didn’t object to the Magistrate Judge’s findings and recommendation: why didn’t she lose her right to complain about the D.J.’s later sentence? 
  The Ninth held that Gray's general lack of objection to the MJ's recommendation wasn’t an “explicit waiver of her right to be present and allocute.” Id. at *3. Gray teaches that waiver of Rule 32 rights isn’t a casual thing: invoke it when the government hides behind a waiver argument in sentencing and allocution claims.
For Further Reading: In Gray, the defense, the M.J., and the AUSA were just months apart in their sentencing recommendations – and all were in or near the guideline range. Probation, by contrast, urged a custodial term four times the government’s recommendation and double the high-end of the guidelines. 
  Does the largely-unfettered discretion of Probation to initiate violation proceedings, or to recommend sentences, increase sentencing disparity? 
  For an interesting piece wrestling with that question, see Probation and Parole Officers and Discretionary Decision-Making: Responses to Technical and Criminal Violations, available here.

Image of Probation Officer badge from

Steven Kalar, Federal Public Defender, N.D. Cal.

New website available at (many thanks to creative web master AFPD Candis Mitchell!)


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