US v. Fabian-Baltazar, No. 15-16115 (7-30-19)(Per curiam w/Rawlinson, Bea, & Hurwitz). If a client tells the lawyer to file a notice of appeal, it is IAC if the lawyer fails to do so, even if there is an appellate waiver in the plea. The Supreme Court held this in Garza v. Idaho, 139 S. Ct. 738 (2019).  Here, the petitioner filed a 2255 alleging IAC for his lawyer’s failure to file the notice of appeal.  The 9^th had affirmed the denial of the IAC, but upon remand from the Supreme Court in light of Garza, it now vacates the denial and remands to determine if the petitioner had in fact instructed his lawyer to file.  This opinion raises the issue of whether it would be IAC if the lawyer fails to consult with the client to ascertain his intent, and seems to indicate, again following Garza, that it would be. On remand here, the court needs to determine whether an instruction was given; and if not, whether the lawyer failed to consult.

This per curiam opinion thus seems to set out how counsel should proceed, even in light of an appellate and 2255 waiver.

Congrats to AFPD Peggy Sasso, FPD Cal E. (Fresno).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/30/15-16115.pdf

 

US v. Ochoa, No. 19-10383 (7-29-19)(Morris w/Ikuta & Christen). An interesting “win” on supervised release (SR) conditions. Such wins are not “frequent,” which is the issue of this appeal.

The defendant was under SR conditions for a sexual offense. One was a “special condition” that he could not “frequent” places that sell, provide, have access to  sexual explicit material. 

At a polygraph, the defendant admitted that he saw an adult film at an adult theater. He admitted one time. This was the basis for the SR revocation.

The 9th reversed. Cracking open the dictionary, the 9th reads that “frequent” is defined as “often” or several and so forth. It was more than once. The 9th rejects the government’s position that the defendant was informed about this prohibition in two meetings. The 9th looked at what was written.

The 9th rejects the defendant’s challenge to the condition as unconstitutionally vague. The 9th looks to prior precedent, US v. Gnirke, 775 F.3d 1155 (9th Cir. 2015), which held that the condition itself was not vague; it addresses the concerns as to treatment and prevention.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/29/18-10383.pdf

Dixon v. Ryan, No. 16-99006 (7-26-19)(Thomas w/Graber & Ikuta). Note: This is an Az CHU case.  The 9^th affirmed denial of a capital petition.  Applying AEDPA deference, the 9^th found no IAC when trial counsel elected not to challenge defendant’s competency to represent himself, despite the knowledge that he had a significant history of mental issues. The trial court had been aware of the mental history. The 9^th gives deference to the state supreme court’s conclusion of no IAC. There was also no due process violation from the trial court’s failure to sua sponte have a competency hearing. The 9^th affirmed the district court’s denial of the claim that a continuance should have been granted to develop mitigation (four years was enough); wearing a stun belt and leg braces (no requisite showing but no proof the jury saw the restraints and even if they did, it was harmless).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/26/16-99006.pdf

1. US v. Corrals-Vazquez, No. 18-50206 (7-24-19)(Bybee w/Wardlaw; concurrence by Bybee; dissent by Fernandez).  In reversing a 1325(a)(2) conviction  — eluding examination or inspection by immigration officials —the 9th holds that the government must prove that the eluding occurred at an open POE. Otherwise, the conduct is illegal entry under 1325(a)(1). The majority examines the statutory text, looks at other conduct (i.e. (a)(1)), cracks open the dictionary (eluding), and reaches the conclusion that (a)(2) can only occur at a POE.  The majority does not state what type of slinking or avoidance is required for eluding.

Concurring, Bybee expresses sympathy for the prosecution. He decries the “mess” of 1325 jurisprudence. He uses the concurrence to go through “official restraint” and “attempts” and some strange scenarios. Here though the statute is what it is.

To Fernandez, dissenting, the statute is what it is, too. However, it is not that confusing nor ambiguous. He argues that it is not uncommon for Congress to double book or be redundant. He finds no requirement that the eluding take place at a POE.

Congrats to Doug Keller, Federal Defenders of San Diego, for this tremendous and far reaching victory. 

This calls into question many Operation Streamline convictions. It also raises questions of past convictions for future prosecutions. Interesting times ahead.

The link to the case is here:  http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/24/18-50206.pdf

2. Djerf v. Ryan, No. 08-99027 (McKeown w/Gould & Ikuta). Note: This is an Az CHU case. The 9th affirms dismissal of this capital 2254 petition. The 9th found no IAC. The issue was that the petitioner represented himself in guilt/innocence. The 9th found no IAC in counsels’ representation that “forced” such representation; nor was there error in allowing it. Counsel represented petitioner at sentencing, and there was no IAC in presenting mitigation. Any error by the Az Supreme Court in requiring a nexus for mitigation was harmless. This was a tough heart wrenching case, with multiple family deaths.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/24/08-99027.pdf

1. US v. Lindsay, No. 16-10349 (7-23-19)(Wallace w/N. Smith & Batts). The 9th affirms convictions for traveling abroad to have illicit noncommercial sex. The 9th rejects commerce clause jurisdictional challenges. The foreign commerce clause basis is not as rigid as the interstate commerce clause, and more expansive. After analysis of approaches, the 9th concludes that non-commercial sex with a minor abroad fairly relates to foreign commerce and that Congress acted within constitutional bounds when it enacted the non-commercial section of 2243(c).

As for other challenges, the 9th rejected statutory and jury instruction challenges concerning the purpose of travel and the belief of age of the defendant. The defendants had not objected to the instruction. Numerous hearsay issues were also found not to be an abuse of discretion or violate the right to present a defense. The evidence included text messages, extortion schemes, sex with other minors, and late disclosures.

The 9th remanded for resentencing on the government’s appeal. The district court should have enhanced for obstruction of justice.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/23/16-10349.pdf

2. US v. Iwai, No. 18-10015 (Tallman w/N. Smith; dissent by Bybee). The 9th found a search to be unreasonable. However, under the totality of circumstances, exigent circumstance existed concerning the possibility of destruction of evidence and therefore a warrantless entry was allowed.

The search concerned a controlled delivery of meth to the defendant. However, the package went to the manager’s office and not to the unit. The agent called the defendant and told him that a package had been delivered. The defendant retrieved it and took it to the unit. The tracker went off two hours later.  The agents thought they still had no probable cause, and so went knocking on the door. The agent heard someone, detected movement, but no one answered. Thus, the agent entered to prevent destruction of the delivered meth.

To the majority, the police acted in an objective reasonable manner given the totality of circumstances. The district court found the agent to be credible as to his fear that the evidence was being destroyed based on the noises. Who are the appellate judges to second guess? Moreover, the agents need not have gotten an anticipatory warrant. It is not required. And once properly in, the subsequent consent to search was not tainted.

Dissenting, Bybee finds this an unreasonable search and seizure. The police had time to get two prior warrants, and conduct surveillance. Bybee faults them for not getting an anticipatory warrant; or getting a warrant once the package was delivered; and, in a closer question, lacked exigent circumstances, or had created those circumstances.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/23/18-10015.pdf

Case o' The Week: Ain't So Great to Wait for State - Myers and Speedy Trial Delays

  The Federal Government of the United States has a compelling interest in the speedy resolution of its criminal cases.

  (Unless our client is also in state proceedings -- then really, what's the rush?) 

United States v. Myers, 2019 WL 3281380 (9th Cir. July 22, 2019), decision available here.

The Hon. Judge Sandra Ikuta

Players: Decision by Judge Ikuta, joined by Judge Christen and visiting Judge Jennifer Choe-Groves.

  Big win for AFPD Colin Prince, Federal Defenders of Eastern Washington & Idaho.

Facts: Myers scuffled with cops. A pistol in his pocket went off, and a deputy sheriff shot Myers in the stomach. Id. at *1. He was charged in Washington with assault and unlawful possession of a gun.

  A few days later, the Feds indicted him on a Sec. 922(g)(1) [felon in possession] charge for the same offense. Id. at *2.

   After twelve continuances and four different attorneys, Myers finally plead guilty to the assault charge, stateside, two years after being charged. Id. Early in that state process he tried to get to federal court: the USAO told the district court it intended to wait until the state charges were resolved. Id.

  When he finally got to federal court, he renewed an earlier Speedy Trial motion. It was denied after an evidentiary hearing. Myers plead to the federal gun charge but preserved his right to appeal his constitutional speedy trial claims. Id.

Issue(s): “In this case, the government’s sole reason for the pretrial delay (the second factor in the Barker balancing test) is that state and federal charges were pending concurrently, and the government delayed commencing proceedings in order to allow the state to pursue their charges. We have not yet considered how the Barker balancing test applies to delays caused by concurrent state and federal prosecutions. There is a circuit split on this issue.” Id. at *4.

Held: “We agree with the Tenth and Seventh Circuits. [T]he Supreme Court has directed us to consider the reasons for a delay in context. . . . Moreover, the Court has declined to adopt a clear rule for any category of delay. . . . If the government had a “bad faith or dilatory purpose” in bringing an interlocutory appeal, the delay caused by the appeal would weigh against the government. . . . But if the government’s position in the interlocutory appeal was strong and supported by reasonable evidence, the delay would not weigh against the government. . . . Similarly, rather than hold that delays caused by the government’s negligence always weigh against the government, the Court directed courts to consider the nature and circumstances of the negligence. . . .

  In light of this guidance, we hold that where a delay arises due to concurrent state and federal proceedings, a court must consider the nature and circumstances of the delay in order to determine whether (and how much) it weighs against the government. For instance, when the state’s charges factually overlap with the federal charges, such that trying the defendant concurrently would present administrative hurdles and safety concerns, a delay may be justified and not weigh against the government. . . . On the other hand, when state charges are unrelated to the federal charges, and the government adduces no evidence that concurrent proceedings would present administrative difficulties or safety concerns, a court may weigh the delay against the government. In sum, there is no bright-line rule for this category of delay.” Id. at *5.

Of Note: The Sixth had held that waiting for another sovereign to finish prosecution was “without question a valid reason for delay.” Id. at *4. In Myers, Judge Ikuta rejects that per se rule. 

  Note, however, that Mr. Myers is not quite out of the woods: the case is remanded for a new Barker analysis on the reasons for the delay.

How to Use: New surges in federal filings are mostly glorified state cases: local cops + federal grand juries = more indictments. When your client has been fighting a county case for months (or years), bear Myers in mind and consider a Speedy Trial claim.

  For state-clients who get wind of a federal indictment, an Interstate Agreement on Detainers claim is a nice addition to the record, when federal Barker balancing begins. See id. at *2.

                                               

For Further Reading: As noted above, Myers was shot in the stomach by Spokane Deputy Sheriffs during this arrest.

  

Mr. Christopher R. Myers

For a troubling video of the shooting, see  article here.  

  

Image of the Honorable Judge Sandra Ikuta from https://twitter.com/ladailyjournal/status/1047144201945796609

Image of Mr. Myers from https://www.khq.com/news/man-accused-of-shooting-at-spokane-county-deputy-has-lengthy/article_3c9a55d4-8d2b-57ed-adaf-7f202191e28a.html

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

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1.  US v. Myers, No. 17-30159 (7-22-19)(Ikuta w/Christen & Choe-Groves). Speedy Trial dismissals are rare and beautiful things. One that enhances a circuit split even more so. Thus, the case here.

The defendant was prosecuted for different crimes arising from the same set of facts. The defendant had been stopped, things happened, a gun went off, and he faced state charges for assault and federal charges for being a felon in possession. The state prosecution went first. The federal prosecutors delayed the federal charges while the state proceedings were pending. Twenty-two (22) months later, the state charges concluded with a plea, and the federal charges began. When he caught wind of the federal proceedings, the defendant had already requested that it proceed sooner.  The federal court denied the request, and then dismissed the speedy trial motion.

On appeal from a conditional plea, the 9^th looked at the Barker four factors test: (1) length of delay (a year is presumptive); reason for delay; defense assertion of right; and prejudice. Here, the issue is whether the pendency of state proceedings is a valid reason for the government to delay prosecution. There is a circuit split. The 4^th, 6^th, and 8^th Circuits find that concurrent proceedings are a valid reason. Indeed, the 6^th stated that it is “without question” a valid reason for delay.  The 7^th and 10^th adopt an ad hoc approach in evaluating the delay. The court has to weigh and balance the four factors. The 9^th weighs in on the side of the 7^th and 10^th. “[W]e hold that where a delay arises due to concurrent state and federal proceedings, a court must consider the nature and circumstances of the delay in order to determine whether (and how much) it weighs against the government.” (13). This includes the government’s actions, safety concerns, administrative hurdles  and so forth.  

The 9^th vacates the dismissal and remands for reconsideration of the ad hoc approach. Ominously, however, for the defendant, the 9^th concludes that the defendant seemingly suffered no prejudice.

Congrats to Colin Prince, AFPD, Federal Defenders of Wa E and Idaho (Spokane).  

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/22/17-30159.pdf

2. US v. Mixon, No. 18-10216 (7-22-19)(Ikuta w/Gould & Pearson). The 9^th affirms a denial of a request for attorney’s fees under the Hyde Amendment.  The defendant (a BOP guard) was acquitted of engaging in a sexual act with an inmate she supervised.  The request focused on the investigation and acts of the agents investigating. The 9^th said this was the wrong focus: the focus has to be on prosecutorial misconduct on the part of the government prosecutors.  “For instance, a defendant would not be eligible for attorneys’ fees under the Hyde Amendment even if a prosecutor relied on fabricated evidence cooked up by a rogue agent, assuming no independent prosecutorial misconduct.” (9). The 9^th does say that using such evidence would be “a grievous mistake,” but it “cannot render the government’s litigating position as a whole vexatious, frivolous, or in bad faith.” (9). The serious misconduct must be on the part of the prosecutors. (10).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/22/18-10216.pdf

Bottinelli et al v. Salazar, No. 19-35201 (7-15-19)(Owens w/Fernandez & Graber).  The 9^th holds that the First Step’s “good time” credit amendment does not take immediate effect upon enactment, but becomes effective with the establishment of the First Step’s “risk and needs assessment system” on July 19, 2019. The petitioner had argued on appeal that the First Step’s amendment to “good time” credit required immediate re-calculation of their sentences, and thus either accelerating their dates for release or transfer to prerelease custody. The 9^th finds that the text clearly links re-calculation of good time credit to the creation of the “risk and needs assessment system.” Because of the text, the Congress did not intend an immediate fix. The 9^th also found no drafting error nor constitutional violation.
 

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/15/19-35201%20web.pdf

 

1.     US v. Phillips, No. 18-50138 (7-11-19)(Owens w/Wardlaw & Bybee). This is an appeal from a jury conviction for conspiracy to use interstate telephone calls in the commission of a murder for hire violation of 18 U.S.C. § 1958.  The issue is whether a promise to forgive an uncollectible debt satisfies the pecuniary value requirement for the conviction. It does.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/11/18-50138.pdf

2.      US v. Perez, No. 17-10216 (7-11-19)(Ikuta w/Siler & Paez). The defendant was convicted of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). On appeal of his sentence, the 9^th concludes that battery resulting in serious bodily injury, Calif. Penal Code 243(d), qualifies as a “crime of violence”  as defined in USSG 4B1.2(a)(1).  Thus, the sentence and the offense level were affirmed.  In so holding, the 9^th distinguishes battery, 242, from battery resulting in serious bodily injury, 243,  and finds that that the latter requires a deliberate infliction of severe injury.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/11/17-10216.pdf

 

US v. Carey, No. 18-10188 (7-10-19)(M. Smith w/Schroeder & Rakoff). “Chute!”  The defendant lost, but not for want of trying.

The case arises in Yosemite. One wonders whether, if BASE jumper falls in a forest, and the rangers don’t hear him, is it a CFR violation? We will never know, because the rangers found him dangling from his chute in a tree. A production ensued in getting him down. Once on the ground, he was charged with misdemeanor offenses (delivery of a person by parachute and disorderly conduct). 

The defendant had a one-day magistrate bench trial. The government filed a brief stating that it had to prove beyond a reasonable doubt all elements of the offense of illegal BASE jumping. This included not having a permit.  The defendant moved for a judgment of acquittal as the government failed to prove lack of permit. Nonetheless, the court denied the motion and convicted. The court found that having a permit, the “permit exception,” was an affirmative defense, and the defendant had the burden. The district court affirmed.

On appeal, the 9th reasoned that if a statute includes an exception to criminal liability, separate from the elements of the offense, then it had an affirmative defense. As such, the defendant bears the burden. McKelvey v. US, 260 US 353 (1922). This differs from US v. Vuitch, 402 US 62 (1971), which the defendant cited, where the exception is included in the enacting clause. Exception not in the enacting clause — an affirmative defense; exception in the enacting clause — the burden on the prosecution.

The 9th concluded, in this unclear statute, that it more like McKelvey. The exception seems to be separate from the enacting clause that bans the conduct. In US v. Cook, 84 US (17 Wall) 168 (1872), the analysis is whether the offense can not be described without reference to the exception. The 9th does say that the defendant’s position makes sense from a linguistic standpoint, but that a look at “ingredients” renders the exception an affirmative defense. If a person conducts a BASE jump, there is not an assumption the jumper is jumping legally. 

Lastly, the magistrate reading an article in the Fresno Bee did not require recusal. Even though the Court referenced the article, it was just in passing. As the 9th  explained: “We cannot expect judges to live as moles, roving about the limited underground landscape of the official record but never perceiving the illuminated world at the surface.” (25). The 9th did not see any bias nor tainting. However, the 9th did admonish the magistrate court and other judges not to conduct their own investigation and to avoid out of court evidence.

Kudos to Reed Graham, AFPD of Cal E. (Fresno) for a hard fought appeal. As often is the case, it is not the jump that is the problem, but the landing.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/10/18-10188.pdf

 

1. US v. Briones, No. 16-10150 (7-9-19)(en banc)(Christen for majority; Bennett (joined by Ikuta) dissenting). Note: Az FPD was involved. 

This is an important Miller juvenile LWOP) decision. Sitting en banc, the 9th reversed the district court’s re-imposition of a LWOP juvenile sentence in a resentencing, holding the district court’s analysis was “inconsistent with the constitutional principles the Supreme Court delineated in Miller and subsequent case law[.]” (6). In so doing, the 9th set forth the test and factors to be followed, emphasizing that a life sentence for a juvenile is rare even extraordinary. It is for a small class of juvenile offenders who are truly corrupt, incorrigible, and irredeemable. They are beyond all hope.  “LWOP sentences are ‘disproportionate for all but the rarest’ juvenile offenders...”even when they commit terrible crimes.” A resentencing must reorientate the analysis for a sentence forward and the possibility of change rather than just backward looking at criminal history. “The key question is whether the defendant is capable of change.” (19).

Here, the district court tried to step into the shoes of the prior judge at that time of sentencing. The district court did not explain sufficiently its sentence nor apply factors set forth in Miller, Montgomery, and Pete. The defendant offered abundant evidence that he was not irreparably corrupt nor irredeemable. He had made tremendous strides in rehabilitation. The government moreover had offered a plea, at the time of the original offense in 1997, to a twenty-year sentence. The defendant was 17 years old at that time, and under the influence of his father, also a defendant, rejected the plea. 

Dissenting, Bennett focus extensively on the juvenile’s criminal history and acts, and would find that the district court resentencing, in less than two pages of transcript, to LWOP was constitutionally sufficient and supported by the record, in less than two pages of a transcript.

Congrats to CJA counsel Vikki Lyles and Easha Anand of Orrick Herrington. Special note should be made of the numerous amicus briefs on the defendant’s behalf, including AACJ, NACDL, many state NACDL affiliates, nonprofit advocacy groups, and law professors. Kudos to AFPD Keith Hilzendeger, FPD Az, who authored the amicus brief for the Federal Defenders of the 9th Cir.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/09/16-10150.pdf

 

2.  US v. Evans, No. 17-30185 (7-9-19)(O’Scannlain w/Bea & Friedland). Two defendants tried to get into the medical marijuana growing business. Entrepreneurs, they embarked on a growing and harvesting marijuana. Alas, they ran afoul of federal and state authorities, and were charged with federal offenses. They sought interlocutory relief, which the 9th heard, arguing that 538 prevented DOJ prosecution if they followed state law. The 9th remanded, ordering a hearing to see if they had strictly complied with the Washington state medical marijuana statute.  After a remand, and a denial of their affirmative defense under 538, they appealed, arguing again that DOJ could not prosecute them because they were following state law. The 9th concluded that the defendant’s were not in “strict compliance” with state law as they were not state designated providers, and they smoked pot (!) while growing and harvesting marijuana and were not qualifying patients. The 9th held too that in seeking to enjoin prosecution under 538, the burden was on the defendants to show compliance. Further, they were not entitled to a jury verdict of noncompliance.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/09/17-30185.pdf

Case o' The Week: Ninth Rejects Gov't Position on Elements (yet Defense Takes the Dive!) - Carey, Statutory Interpretation, and Affirmative Defenses

“[I]f Carey looks before he leaps, he might see that the two decisions are not, as he claims, irreconcilable.”

  United States v. Carey, 2019 WL 2998728 (9th Cir. July 10, 2019), decision available here.

 Players: Decision by Judge M. Smith, joined by Judge Schroeder and SD NY DJ Rakoff.

   Hard-fought appeal (with admirably sophisticated statutory challenges) by AFPD Reed Grantham, Eastern District of California Federal Public Defender.

Mr. Austin Lee Carey

Facts: Carey was found suspended, high in a Yosemite tree. Id. at *1. He had a harness, wingsuit, and parachute – gear used for “BASE” jumping. Id. 

  Carey was rescued and charged with misdemeanors, including 36 CFR § 2.17(a)(3), “delivering a person by . . . airborne means . . . except pursuant to . . . a permit.” Id. at *2.

  In its pretrial brief the government explained that the government had to prove beyond a reasonable doubt that Carey did not have a permit. Id.

  The government failed to so prove in the bench trial: Carey moved for a Rule 29 acquittal. Id. The motion was denied in a written order by the Magistrate Judge.  Id.

Issue(s): “The dispute on appeal is . . . straightforward: Carey contends that § 2.17(a)(3)’s permit exception is an element of the offense, and thus that the government had to prove the nonexistence of a permit beyond a reasonable doubt, while the government argues that it is an affirmative defense for which Carey bore the burden of proof.” Id. at *3.

Held: “In summation, § 2.17(a)(3)’s permit exception is best understood as an affirmative defense under McKelvey . . . , not an element of the offense under Vuitch. We therefore conclude, like the magistrate judge and the district court, that Carey had—and did not meet—the burden of proof at trial.” Id. at *8.

Of Note: Don’t dismiss this parachute-permit case as a minor misdo opinion. Carey is an important decision on statutory analysis and affirmative defenses.

  On appeal Carey persuasively argued that the Supreme Court’s 1971 Vuitch decision required the permit issue to be treated as an element: after all, it was embedded in the regulation itself.

  The government (less-persuasively) turned to the 1922 McKelvey case from the Supremes, arguing that the permit was just an affirmative defense.

  In a decision of first impression, Judge M. Smith unfortunately agrees with the government, finds no conflict between these two SCOTUS decisions, and gives the nod to the old McKelvey approach as applied to this regulation.

  The Ninth assures us that this outcome is straightforward (though the Court struggles through many pages of analysis to finally get to the government’s position). 

  Carey merits a close read when affirmative defenses are in dispute – the McKelvey / Vuitch tension remains, and other regs or statutes may produce a different outcome for the element / affirmative defense debate.   

How to Use: Wait – how’d the Ninth get to this issue? Recall that the AUSA assured the Magistrate Judge that the government bore the burden of proving the lack of a permit. How does the government now win on appeal? Because government concessions are not (necessarily) waivers or forfeitures -- what would be plain error for the defense is just a misstep for the government. 

  The Ninth explains that the Court is “not obliged . . . to hold the government to this [trial] position, because even if a concession is made by the government, we are not bound by the government’s ‘erroneous view of the law.’” Id. at *3 (quotations and citations omitted).

   This is an aggravating rule, and one that will not save every mistake by an AUSA, but beware of the government’s “second bite at the appellate apple” as as you mull trial strategies.

                                               

For Further Reading: During the trial proceedings, the Magistrate Judge read an article about Mr. Carey in the Fresno Bee -- and then cited it in his written order denying the Rule 29 motion! Id. at *9. (Imagine if a jury’s guilty verdict form referenced a newpaper article not in evidence . . . .)

   The article’s hearsay recitation contained deeply prejudicial information that was not part of the bench trial. Despite this “troubling” reliance on facts not on evidence, the Ninth just “admonish[ed] [the Magistrate Judge] in the future to be more circumspect in referencing or considering facts not properly admitted into evidence.” Id. at *11.

  The Ninth then upheld the denial of Carey’s recusal motion. Id.

  The Fresno Bee article that was read and cited by the M.J. (with videos of Mr. Carey plummeting off of Yosemite peaks) is available here.  

Images of Austin Carey from https://www.fresnobee.com/news/local/article166303332.html

Image of Fresno Bee from https://www.bigvalleynews.com/index.php/news/local-news/1066-ken-riddick-promoted-to-president-and-publisher-of-fresno-bee 

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

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Case o' The Week: When Push Comes to Shove, No Taylor Love - Perez, CPC Section 243(d), and Crimes of Violence

  Conduct that could send your client to a California prison for decades, on a felony strike? 

 Meh - just an “improbable hypothetical” in the Ninth.

 United States v. Perez, 2019 WL 3022334 (9th Cir. July 11, 2019), decision available here.

Players: Decision by Judge Ikuta, joined by Judge Paez and visiting Judge Siler. 

   Hard-fought appeal by ND Cal AFPDs Jerome Matthews and Elizabeth McKenna.

Facts: In 2017, Perez was convicted in a bench trial of being a felon in possession of a firearm. Id. at *1.

   Perez had previously been convicted of Cal. Penal Code § 243(d), battery resulting in serious bodily injury. Id. at *1. Over defense objection, the district court held that Cal. Penal Code § 243(d) was a crime of violence.    

Issue(s): “Aaron Perez’s appeal of his sentence for being a felon

in possession of a firearm and ammunition raises the question whether a prior state conviction for battery resulting in serious bodily injury, in violation of section 243(d) of the California Penal Code, qualifies as a ‘crime of violence’ as defined in § 4B1.2(a)(1) of the United States Sentencing Guidelines.” Id. at *1.  

Held: “We conclude that it does.” Id.

  “Like [California Penal Code] section 243(c)(2), section 243(d) requires proof of an element that § 242 does not . . . namely that ‘serious bodily injury is inflicted’ on the person of another, Cal. Penal Code § 243(d). Because ‘serious bodily injury’ is defined as ‘a serious impairment of physical condition,’ Cal. Penal Code § 243(f)(4), we must likewise conclude that a person cannot be convicted under § 243(d) ‘unless he willfully and unlawfully applies force sufficient to not just inflict a physical injury on the victim, but to inflict’ a severe physical injury. . . . As a result, section 243(d) ‘fits squarely within the term [crime of violence] by requiring the deliberate use of force that injures another.” Id. at *5 (internal citations and quotations omitted).

Of Note: Unfortunately for Mr. Perez, the Ninth had addressed a previous Cali battery statute that also required proof of significant injury. While battery in California can be accomplished by an unwanted touch, that slight intentional act plus the actual injury requirement pushed this statute over the COV line for Jude Ikuta.

  What is frustrating about this decision is that California appellate courts have described fact patterns that would be viable under this statute, that involve “eggshell defendants” -- a slight non-violent nudge of an elderly victim who falls and breaks a hip would suffice for a Section 243(d) conviction, but would not be a categorical match for the federal Taylor analysis.

  Judge Ikuta is unpersuaded by the California appellate courts and their “technical analysis” of California state law issues. “[I]mprobable hypotheticals,” she opines. Id. at *5.  [It is fun to imagine a County PD arguing Perez’s federal analysis to attack a § 243(d) conviction in a California court].
   Distressingly, the panel doesn’t discuss California cases where offensive touching did result in § 243(d) prosecutions. See, e.g., People v. Myers, (1998) 61 Cal.App. 4th 328 (victim yelled and poked at defendant and defendant pushed victim away defensively; victim slipped and fell on wet pavement and was injured); People v. Finta, 2012 Cal. App. Unpub. LEXIS 7488 (Cal. App. 1st Dist. Oct. 17, 2012) (defendant “shoved” a man on his bicycle when he thought that the cyclist had stolen his personal property; cyclist fell and was injured); People v. Hayes, 142 Cal. App. 4th 175 (Cal. App. 2d Dist. 2006) (defendant kicked a large ashtray, which fell over and hit an officer’s leg causing a cut and bruising) (in Section 243(c) conviction).

   Perez illustrates a growing problem with the Taylor categorical analysis: the “realistic probability, not a theoretical possibility” analysis is a mushy test that is very much in the eye of the appellate beholder.

How to Use: California defense folks, ever plead a client down to a Section 243(d) charge on facts that are not a clean match for the federal categorical analysis? Judge Murguia wants to know. 

  Well, maybe not literally, but in an insightful recent concurrence Judge Murguia calls for plea deals as evidence of the Taylor “realistic probability” analysis. See blog entry here. 

  Tough to find these examples, conceded, but an interesting avenue to explore.   

                                               

For Further Reading: Last week the Honorable Judge Daniel Bress was confirmed as the latest appointment to the Ninth Circuit. See article on Judge Bress here. 

  With his confirmation, the Ninth now has more jurists nominated by President Trump than any other circuit. See article here. 

  Three more Ninth vacancies remain to be filled by January 1, 2020. See Ninth Circuit vacancy report here.  

Image of push from https://www.lisa-legalinfo.com/wp-content/uploads/2015/12/violence151213.jpg .

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

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Samayoa v. Davis, No. 18-56047 (7-3-19)(Fletcher w/Hurwitz; dissent by Watford). Note:  FPD AZ-CHU is involved.  The petitioner is on California’s death row.  His appeals are done, and he is at the end of the line, save for clemency.  He seeks appointment of the Az FPD as co-counsel to assist the state appointed counsel in clemency proceedings.  The district court had denied the appointment.

On appeal, the 9^th reversed. The Supreme Court in Harbison v. Bell, 566 US 180 (2009) held that 18 U.S.C. § 3599 provides for federal appointment of counsel for death-row petitioners seeking federal relief. The subsection (e) extends the appointment to further proceedings, such as clemency. The 9^th concludes, here, that a court can appoint additional counsel. In this case, the original appointed counsel has been representing the petitioner pro bono, has never done a clemency proceeding, and there are additional tasks and claims to be investigated and raised. He argued he needed the assistance of counsel.  In denying the request, the district court had reasoned that the petitioner had to return to the California Supreme Court for such appointment of additional counsel because he was already represented.  The 9^th concluded that the statute allows for a federal court to appoint counsel. 

Dissenting, Watford argues that 3599 cannot be squared with Harbison.  Section 3599 requires only a showing of indigency; however, Harbison stated that a state appointed counsel may render the petitioner ineligible for appointment of counsel, because he has one and therefore arguably no longer indigent. 

The majority finds this reading too narrow. The majority’s reading of the statute permits appointment of one or more attorneys if the petitioner is “financially unable” to obtain adequate representation. Petitioner does not have to start a new inquiry into adequacy of representation, or go back to state court. Second counsel can be appointed even if the petitioner has representation through other sources.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/03/18-56047.pdf

Case o' The Week: BIA Goes Own Way - Betansos and Plea Bargains for Categorical Analysis "Realistic Probability"

  Let’s Make a Deal (part of the categorical analysis . . .)

Betansos v. Barr, 2019 WL 2896367 (9th Cir. July 5, 2019), decision available here.

Players: Decision by Judge Murguia, joined by Judge Bea and DJ Bastian.   

Facts: The Board of Immigration Appeals (“BIA”) found Betansos ineligible for cancellation of removal. Id. at *2. His previous conviction for indecent exposure, under California Penal Code § 3141(1), was held to be a crime involving moral turpitude (“CIMT.”) Id. at *1.

   In Nunez, the Ninth had previously reversed an unpublished BIA decision on this precise question, holding that this offense was not categorically a CIMT. Id. The BIA, however, revisited the issue in a published decision, Matter of Cortes Medina, 26 I & N. Dec. 79 (BIA 2013). Id. In Cortes Medina, the BIA contradicted the Ninth’s decision in Nunez and found that Cal. Penal Code § 3141(1) was categorically a CIMT – this time offering rationales for its decision.

Issue(s): “We must now decide whether to defer to the BIA’s more recent determination in Cortes Medina that a violation of § 3141(1) categorically constitutes a CIMT. If we defer to Cortes Medina, we must also decide whether we will do so retroactively.” Id.

Held: “[W]e conclude that we must defer to Cortes Medina pursuant to the framework [set forth in the Supreme Court’s decision in Brand X]. We also conclude that Cortes Medina applies retroactively in Betansos’s case. We therefore deny Betansos’s petition for review.” Id. at *2.

   “Reasonable minds can differ when deciding whether certain crimes are morally turpitudinous. Indeed, we did so in Nunez. However, pursuant to Brand X, we must defer to the BIA’s decision in Cortes Medina.” Id. at *8.

Of Note: The nub of this loss is Chevron deference to the BIA’s “categorical” categorization of indecent exposure as a CIMT. Id. at *5. It is a disappointing outcome, and there’s the sense that the Ninth isn’t too keen on the BIA’s determined effort to scoop up this offense as a CIMT.

   Of greater interest to criminal practitioners is Judge Murguia’s very thoughtful concurrence. Id. at *11 (Murguia, J., concurring). She acknowledges that the Supreme Court requires immigration petitioners to show a “realistic probability” that a statute is overbroad in its application and therefore not a categorical match. Id. (citing Duenas-Alvarez). Judge Murguia complains, however, that the BIA’s examples in its decision are decades-old. Id. Why are there so few published decisions to use in a categorical analysis? Because “[t]he vast majority – and nearly all –of criminal cases are resolved through plea bargains.” Id. Plea bargains don’t get published, so the BIA – and the Ninth – have no way to access how broadly a statute is really being used in the real world.

  Judge Murguia ends with a call to action: “Developing a mechanism for considering what conduct prosecutors charge and results in defendants accepting pleas may be particularly helpful in cases such as this one . . . .” Id. at *11.

  An intriguing invitation.

How to Use: Accept Judge Murguia’s invitation! The Taylor categorical goo largely exists because state D.A.’s, legislatures, and judges are too creative and too flexible when scooping in conduct – they (very) broadly interpret state criminal statutes to uphold convictions. Let’s add to that list the “hold your nose and down it goes” plea bargains as examples, when arguing that a state statute is overbroad for a categorical match. 

  Buddy up with your friendly state public defender, and start fishing for transcripts of plea deals illustrating the broad use of Taylor-contested state statutes. Under the Betansos concurrence, those plea transcripts will be welcome exhibits for federal categorical challenges.

                                           

For Further Reading: Judge Jay Bybee has announced that he is taking senior status at the end of this year. See article here. 

  If a nomination and confirmation makes it through, Judge Bybee’s position will be the tenth Ninth spot to be filled by President Trump.

Image of “Let’s Make a Deal” from https://www.auditionsfree.com/2016/lets-make-deal-now-casting-los-angeles-area/.

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

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