Case o' The Week: Herring gone bad - Henderson and Unlawful NIT Child Porn Searches

Thousands of illegal Federal hacking searches, across the United States.

  All salvaged with a Herring aid.

United States v. Henderson, 2018 WL 5260851 (9th Cir. Oct. 23, 2018), decision available here.

Players: Decision by Judge O’Scannlain, joined by Judge Bea and DJ. Hard fought appeal (with e.b. petition on way) by ND Cal AFPD Hanni Fakhoury.

Facts: The FBI seized and operated a child porn server called “Playpen.” Id. at *1-*2. The Feds obtained a Network Investigative Technique (“NIT”) warrant from an ED Va. magistrate judge. Id. That warrant allowed the search of a computer, wherever located, if it was logged into Playpen. Id.

  ND Cal resident Henderson accessed child porn on Playpen. Id. After he was charged with child porn offenses, Henderson moved to suppress evidence seized pursuant to the “NIT” warrant. Id. at *3.

  The motion was denied, Henderson was convicted, and appealed.

Issue(s): “Henderson argues that the motion to suppress should have been granted because the NIT warrant was issued in violation of [Fed. R. Crim. Pro.] 41(b), which authorizes magistrate judges to issue warrants subject to certain requirements. To prevail . . . Henderson must show both that the NIT warrant did violate Rule 41(b) and that suppression is the appropriate remedy for such violation.” Id. at *4.

   “[W]e must decide whether evidence that was obtained pursuant to a warrant that authorized a search of computers located outside the issuing magistrate judge’s district must be suppressed.” Id. at *1. 

  “If the (Herring “good faith”) exception may apply in cases where an officer relied on a valid warrant which had been revoked or a warrant which never existed, may the exception apply where the officer relied on a warrant subsequently recognized as void due to the issuing judge’s jurisdictional violation?” Id. at *8.

Held: “[T]he NIT mechanism is not a ‘tracking device’ within the meaning of . . . Rule . . . 41(b)(4). . . . [T]he NIT warrant violated Rule 41(b) by authorizing a search outside of the issuing magistrate judge’s territorial authority.” Id. at *4. “[ ] Rule 41(b) is not merely a technical venue rule, but rather is essential to the magistrate judge’s authority to act in this case.” Id. at *5. “Without any other source of law that purports to authorize the action of the magistrate judge here, the magistrate judge . . . exceeded the scope of her authority and her jurisdiction . . . .” Id. “[A] warrant purportedly authorizing a search beyond the jurisdiction of the issuing magistrate judge is void under the Fourth Amendment. We . . . conclude that the Rule 41 violation was a fundamental, constitutional error.” Id. at *7.

  “Application of the good faith exception is permitted where a warrant is void because of a magistrate judge’s jurisdictional violation, so long as the executing officers had an objectively reasonable belief that the warrant was valid. We are unconvinced by Henderson’s argument otherwise, and we are satisfied that the good faith exception may apply to warrants that are void ab initio.” Id. at *8. “[T]he NIT warrant falls squarely within the Leon good faith exception: the executing officers exercised objectively reasonable reliance on the NIT warrant, and the marginal or nonexistent benefits produced by suppressing evidence ... cannot justify the substantial costs of exclusion.” Id. at *9.  

Of Note: The old Rule 41(b) -- in place when this search took place -- clearly didn’t authorize this warrant. In fact, it so clearly didn't authorize this warrant that in 2016 Congress had to change the rule to permit these searches. 

  Many child porn defendants throughout the country are now serving many decades of custody, based on convictions arising from these patently unlawful ED Va. NIT searches. The Feds’ alarming (and unlawful) NIT hack illustrates the injustices that arise when “good faith” draws the teeth of suppression remedies. 

  Something to Fourth Amendment fans to mull, with new Supreme Court majorities in play. See Orin Kerr article here. 

How to Use: Fourth gurus beware: Judge O’Scannlain pens what appears to be a rule of first impression in the Ninth. Leon / Herring “good faith” can salvage a warrant, even it is invalid ab initio. Id. at *8.

                                               

For Further Reading: Henderson refuses to suppress the evidence seized from unlawful domestic hacking by the FBI.

   For a troubling account of this unprecedented investigation, see a great EFF series of posts, here. 

“Deaf Fish” meme from http://weknowmemes.com/generator/meme/443518/

FBI hacking image from https://www.thedailybeast.com/the-fbi-blindly-hacked-computers-in-russia-china-and-iran

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

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US v. Moreno Ornelas, No. 15-10510 (10-25-18)(Friedland; Thomas partial concurrence and partial dissent; Zilly dissenting).

This appeal arises from an apprehension in the Arizona desert. A U.S. Forest Service Officer encountered the defendant and a fight ensured, with shots fired. Each claimed that he was in a fight for his life.  The officer said the defendant stole his weapon and assaulted him; the defendant said he was the victim of an assault and acted in self-defense. The jury hung on an assault with attempt to murder charge, but convicted on various others. The sentence imposed was 43 years. The 9th affirmed the convictions for assault on a federal officer, use of a firearm, felon in possession, and possession of a firearm by an illegal alien. It reversed for jury instruction errors on the attempted robbery of the gun and truck.

The reversals resulted from the failure to instruct the jury that the defendant must have formed specific intent when he tried to take the gun and truck. The Court did not have to instruct on specific intent when he used force. The error was obvious and affected the fairness and integrity of the proceedings. The opinion discusses at length the common law of robbery and its adoption by Congress.

Dissenting, Thomas believes that the error was harmless.

The 9th held that the jury instruction for self-defense sufficiently covered the “resistance to excessive force” defense theory. The 9th also found that the instruction for what was performance of “official duties” instruction was appropriate.

Four months after disclosure of defense experts was due, and five days before trial, counsel disclosed a firearm expert’s report. The report would have indicated that the officer never hosted his gun, the gun could have slipped out of the holster accidentally, the shots could have been fired accidentally, and no shot was fired near the officer’s head. The majority concluded that the disclosure was unreasonably late. Defense counsel controlled the expert and should have followed the disclosure rules.

Dissenting, Zilly argues that the bar of the expert violates constitutional rights. Zilly states this bar was a sanction that prevented a defense and not mere enforcement of a reasonable discovery order. The district court should have explored the reasons why, and determine if it was blatant misconduct.

Congrats to Carl Gunn, CJA counsel, for a win.  Not total, but we take what we can get.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/10/25/15-10510.pdf

US v. Henderson, No. 17-10230 (10-23-18)(O’Scannlain w/Bea & Stearns).

This appeal concerns a search of a computer which revealed child porn. The evidence was obtained pursuant to a warrant that authorized a search of computers located outside the issuing magistrate judge’s district. The 9th held that the search violated Fed R Crim P 41 and was a fundamental constitutional error. Nonetheless, the 9th did not suppress, holding that the “good faith” exception applied.

The magistrate sat in VA E and issued a Network Investigative Technique (NIT) warrant for thirty days. NIT can reveal concealed in addresses and locations. The thirty day warrant sought information about child porn being downloaded via tracking information, including an IP address, from an outside the district computer visitor to the website in the district by having his computer respond to the government server. In this case, evidence pointed specifically to a computer in San Mateo in Northern California. A warrant in Cal N for a search of the home address was issued. Child porn was found. The defendant eventually entered a conditional plea and appealed the search.

The 9th joined the 3rd and 8th circuits in holding that the magistrate acted outside the jurisdiction of Rule 41 for the thirty day warrant. The language of the rule is clear that the jurisdiction is within the district. The warrant was not for a computer within the district. It authorized a search for a computer outside the district. This was not like tracking. Nor was the venue requirement of a magistrate merely technical. It is essential to authority.

However, the evidence is not suppressed because the officers acted in objective reasonable belief that the warrant was valid. It was here. The law was unclear and the officers sought to act in compliance. A number of district courts found such warrants valid. Thus, there was good faith.

Rule 41 was subsequently amended (2016) to allow such warrants when the computer addresses are being hidden.

Kudos to AFPD Hanni Fakhoury of Cal N (San Francisco) for this hard fought and argued appeal.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/10/23/17-10230.pdf

Case o' Week: Sold on Sellers -- Sellers and Discovery on Selective Enforcement Claims

Carl Gunns for Nguyen win.  

United States v. Sellers, 2018 WL 4956959 (9th Cir. Oct. 15, 2018), decision available here.

Players: Majority decision and concurrence by Judge Nguyen. 

The Honorable Judge Nguyen

  DJ Simon, concurring.
  Dissent by Judge Graber, drawn by lot to replace Judge Reinhardt. 
  (Judge Reinhardt, concurring in spirit, with the opinion and Judge Nguyen's terrific concurrence).

  Tremendous victory for former C.D. Cal. AFPD, now stalwart CJA counsel, Carl Gunn.  

Facts: Sellers, who is black, was arrested in an ATF stash house sting put together by ATF Agent John Carr, and was charged in federal court. Id. at *1-*2.

  Sellers sought discovery based on a claim of selective enforcement. Id. at *2. Sellers showed that 39 of 51 CD Cal defendants charged in reverse sting prosecutions were black or Hispanic. Id. 

ATF Agent John Carr

  ATF Agent John Carr testified that 55 of the 60 defendants indicted in his stash house efforts were people of color. Id.

  The court denied the discovery motion, based on the Supreme Court’s 1996 Armstrong decision. Id.  

   Sellers was convicted after a jury trial, and appealed.

Issue(s): “Sellers argues that he was targeted based on his race, and presents evidence that an overwhelming majority of the defendants targeted by law enforcement in similar investigations are African-Americans or Hispanics. To succeed on his selective enforcement claim, Sellers must show that the enforcement had a discriminatory effect and was motivated by a discriminatory purpose. He is unlikely to meet this demanding standard without information that only the government has. Sellers can obtain this information through discovery if he makes a threshold showing. We must decide what that showing is.” Id. at *1.

  “The question we face is whether Armstrong’s standard is equally applicable to claims for selective enforcement, particularly in the stash house reverse-sting context.” Id. at *3.

Held: “We hold that in these 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 . . . Armstrong.” Id.

  “Today we . . . 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 requirements 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 . . . to allow limited or broad discovery based on the reliability and strength of the defendant’s showing.” Id. at *6 (emphases in original). Id. at *6,

Of Note: The Sellers opinion is a lovely piece of legal writing by Judge Nguyen. It is a careful and measured analysis that methodically works through the difference between selective enforcement and selective prosecution, and that hews closely to previous discovery decisions in the Third and Seventh Circuits. Id. at *6.

  In her concurrence, however, Judge Nguyen cuts loose. 

  Unleashing a barrage of stats, in her concurrence Judge Nguyen explains exactly how fake stash house schemes target people of color – and ultimately have little impact on real crime rates. Id. at *10. She “question[s] whether conducting stash house operations almost exclusively in neighborhoods known to be black and Hispanic, and excluding neighborhoods known to be white, is in fact a ‘facially neutral’ policy.” Id. at *11.

   If you’ve ever defended a client against these inane and unfair stash house prosecutions, this concurrence is a must-read.

How to Use: The Feds of NorCal rage for RICO, and are dying for death. What percentage of our tsunami of RICO and capital defendants are people of color? 95%? Higher?

  It is time for beloved data nerds to run some RICO regression models, and for capital counsel to shake loose some Sellers discovery from ATF, the FBI, Homeland Security, and local law enforcement.  

                                               

For Further Reading: Sellers confirms what we knew: the Honorable District Judge Edward Chen got it right. In 2017, Judge Chen ordered a broad swath of discovery on the ND Cal FPD’s selective enforcement claim in the notorious San Francisco “Safe Schools” prosecution. See “For Further Reading” at blog entry, here. 

The Honorable Judge Edward Chen

   The ND Cal United States Attorney's Office dismissed those "Safe Schools" indictments, rather than complying with Judge Chen’s remarkable discovery order. While these dismissals were welcome victories for our clients, the win left unaddressed many serious questions about this profoundly misguided prosecution.

   We’ll now get answers.

  The ACLU has recently filed a civil lawsuit on behalf of these Safe Schools defendants. See ACLU press release here. 

   Notably, the ACLU’s Cross suit was recently related back to the Mumphrey litigation (the original Safe Schools criminal case). See CV 18-06097 EMC (N.D. Cal. Oct. 16, 2018), Dkt. #22, Ord. relating case.

  This means that the whole "Safe Schools" mishigaas is now right back where it belongs: before Judge Chen. 

Image of the Honorable Judge Nguyen from https://www.scpr.org/news/2011/12/01/30139/key-senate-committee-approves-la-judge-ninth-circu/ 

Image of “Stash House” from http://lovewheels.site/stash-house/

Image of ATF Agent Carl Gunn from http://www.agingrebel.com/wp-content/uploads/2014/06/John-Carr1.jpg

Image of the Honorable Judge Edward Chen from https://www.law.com/therecorder/almID/1202766928888/how-judge-chen-put-himself-on-the-wrong-side-of-the-ninth-circuit-in-uber-case/

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

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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 9^th emphasizes the difference between selective prosecution and selective enforcement (9). The 9^th 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 9^th joins the 3^rd and 7^th 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:

 http://cdn.ca9.uscourts.gov/datastore/opinions/2018/10/15/16-50061.pdf

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 Mr. Gabriel Carillo from https://www.dailymail.co.uk/wires/ap/article-3301174/Los-Angeles-sheriffs-deputy-gets-8-years-jail-beating.html

Image of Senators Feinstein and Harris from https://www.nbcbayarea.com/news/local/Harris-Feinstein-Say-They-Did-Not-Sign-Off-on-Judicial-Nominees-497431271.html  

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

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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:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/10/10/15-50483.pdf

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:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/10/10/17-55054.pdf

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:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/10/03/18-30022.pdf

 

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 https://www.pinterest.com/pin/561964859745692847/

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

New website available at https://www.ndcalfpd.org/ (many thanks to creative web master AFPD Candis Mitchell!)

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