Case o' the Week: "Awkward" but not "Vague" - Hudson and Facial Vagueness Challenge to Section 2252(b)(2)

 Vagueness challenge doesn’t fly for Hudson's Hawk[ins]. 

United States v. Hudson, 2021 WL 299301 (9th Cir. Jan. 29, 2021), decision available here.

Players: Decision by Judge Hawkins, joined by Judges N. Randy Smith and R. Nelson.

 Hard-fought appeal by ND Cal AFPD Hanni Fakhoury.

Facts: Hudson was charged with possession of child porn. The government gave notice that a prior conviction for Cal. Penal Code § 288(a) triggered a ten-year mand-min, under 18 U.S.C. § 2252(b)(2). Id. at *1. (CPC § 288 prohibited any person from willfully committing a lewd or lascivious act, upon any part of a body of a child under 14, for sexual arousal). Id. at *1 & n.1.

  Hudson pleaded guilty in federal court. At sentencing, he argued that the federal statute, Section 2252(b)(2), was unconstitutionally vague. Accordingly, Hudson argued, he should not be subject to the ten-year mandatory minimum. Id. at *2.

  N.D. Cal Judge Jon Tigar observed that if he had discretion he would have imposed the 87-month term urged by the defense. Ultimately, however, Judge Tigar rejected the challenge and (reluctantly?) sentenced Hudson to ten years. Id.

Issue(s): “On appeal, Hudson contends that his sentence must be vacated because the statutory provision ‘relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward’ is unconstitutionally vague.” Id. at *1.

   “Hudson's arguments center on two lines of precedent: (1) our case law interpreting the phrase ‘abusive sexual conduct involving a minor or ward,’ and (2) our case law determining how the phrase ‘relating to’ affects our application of the categorical approach.” Id. at *3.

Held: “We hold that it is not [unconstitutionally vague] and affirm the sentence.” Id.

 “Section 2252(b)(2)’s application to state crimes ‘relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor’ neither fails to give ordinary people notice of its scope nor poses a risk of arbitrary enforcement. We, therefore, reject Hudson's constitutional challenge and affirm his sentence.” Id. at *7.

Of Note: Much of this case hinges on United States v. Farmer, 627 F.3d 416, 418 (9th Cir. 2010), and Farmer’s holding that CPC § 288(a) is a conviction that categorically related to aggravated sexual abuse (in the context of another federal sex statute). Id. at *3-*4, & n.2. Interestingly, Judge Hawkins spends a fair amount of time discussing Judge Bybee’s special concurrence in Farmer. Judge Bybee criticized the Ninth’s line of authority that lead to Farmer’s “awkward result” of defining terms through both their “ordinary meaning” and by reference to a federal statue. Id. at *4.

  There’s a lot of ink spilled over a Farmer criticism that obviously doesn’t control in the Hudson analysis. Does Judge Bybee’s valid criticism have a sympathetic audience with Judge Hawkins or others on this panel – is this an en banc opportunity? But see id. at *6 (describing the Hudson’s panel’s view that Judge Bybee’s position does “not reveal a constitutional infirmity.”) 

How to Use: Can a defendant bring a facial vagueness challenge to a criminal statute (as opposed to “as applied?”) The government doesn’t think so, and argued as much in Hudson. Judge Hawkins explains the Court didn’t need to reach that issue to resolve Hudson, id. at *5 & n3, so facial challenges are still viable in the Ninth.                                               

For Further Reading: Acting A.G. Wilkinson just pulled a reviled charging memo by A.G. Sessions, that had mandated that federal prosecutors pursue the harshest charges and stiffest penalties. See “DOJ Pulls Trump Administration’s Harsh Charging and Sentencing Policy, available here. 

The new controlling policy is former A.G. Holder’s 2010 charging memo, that instructs federal prosecutors to focus on “individualized justice” and decision-making based on “the merits of each case.” Id. 

Hopefully when Judge Garland clears the Senate, drug mand-mins will also get the DOJ boot (see A.G. Holder's 2013 charging memo). Until then, federal cases should be subject to immediate re-negotiation: cases should now be re-evaluated under A.G. Holder’s 2010 charging memo.

 

 

Poster image of “Hudston Hawk” from https://www.amazon.com/Hudson-Hawk-Sandra-Bernhard/dp/0767821513

 

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

 

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US v. Mora-Alcaraz, No. 19-10323 (1-21-21)(Schroeder w/Berzon & Mendoza). After the district court suppressed statements for a Miranda violation, the government took an interlocutory appeal. The 9^th affirmed the finding of a Miranda violation, but remanded to determine whether the consent to search the car, and thus find the firearm (alien in possession) was consensual.

The Miranda violation arose when the police accosted the defendant at a mall. The police were looking because of a domestic disturbance allegation the previous night.

The police called the defendant, who was at a mall, with his 7-year-old child, and agreed to meet to “discuss” what happened. Instead of just one officer, 4 show up, in two cars, separated the defendant from his son, and questioned him. The defendant admitted being here illegally and having a gun in his truck. The police then drove him to his truck, where he consented to a search.

The 9^th affirmed suppression because of the police dominated environment, and the separation of his child. The 9^th used the factors in US v. Kim, 292 F.3d 969 (9^th Cir. 2002), as to public interrogations (or non-police stations). The various, not exclusive, factors are: (1) the language used to summon; (2) confrontation of guilt; (3) physical surroundings; (4) duration; and (5) pressure. Using these factors, the 9^th agreed with the district court that the defendant would not have felt free to end the questioning and leave the mall. This was a custodial interrogation, therefore, but without Miranda warnings given. The statements are suppressed.

The question then becomes whether the gun can be suppressed too. The court suppressed as poisoned fruit of the Miranda violation. This was error.  Physical evidence – here, the gun -- can be admissible, even after a Miranda violation. US v. Patane, 543 US 630 (2004). The inquiry thus focuses on whether the defendant’s consent to search the trunk was voluntary.  The 9^th remanded to the district court to determine.

Congrats to Aarin Kevorkian, AFPD, FPD Nev (Las Vegas).  This was a nice Miranda win from these unusual facts.

Of note is the opinion’s first sentence: “This is what has become a relatively rare interlocutory appeal by the United States from a district court order suppressing evidence in a criminal prosecution.”  Hmmm, it isn’t because the government decides not to appeal and to lick its wounds.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/21/19-10323.pdf

Case o' The Week: Ninth Not Laughing at Mall Cops - Mora-Alcaraz and "Custody" for Miranda

“This is what has become a relatively rare interlocutory appeal by the United States from a district court order suppression evidence in a criminal prosecution.”

United States v. Mora-Alcaraz, 2021 WL 209168, *1 (9th Cir. Jan. 21, 2021) (emphasis added), decision available here.

Players: Decision by Judge Schroeder, joined by Judge Berzon and DJ Mendoza, Jr. Admirable win for D. Nev. AFPD Aarin Kevorkian.  

Facts: Mora-Alcaraz’s estranged wife called the after he brandished a gun. Id. at *2. The next day, Mora-Alcaraz was at the mall with his seven-year old stepson. Four armed cops confronted him, escorted the boy away, and interrogated Mora-Alcaraz without Miranda warnings. Id. He admitted to being an undocumented alien, and having a gun in his truck. He was driven in a patrol car with flashing lights across a parking lot, to his own truck. Id. Mora-Alcaraz then consented to a search that produced the gun. Id. After he was charged with being an alien-in-possession, he moved to suppress. The district court suppressed the statements, and also suppressed the gun as the fruit of a Miranda violation. Id. The government moved for reconsideration. When that was denied, the government filed an interlocutory appeal. Id. at *3.

Hon. Judge Mary Schroeder

Issue(s): “The district court ordered Mora-Alcaraz’s incriminating statements concerning his citizenship status and his ownership of the gun suppressed because they were the product of a custodial interrogation that required Miranda warnings. The parties agree that the key issue is whether the district court erred in holding that persons in Mora-Alcaraz’s position would have felt, under a totality of the circumstances, that they were not at liberty to terminate the interrogation and leave.” Id. at *4 (internal quotations and citation omitted).

Held: “In sum, the totality of circumstances, including the Kim factors, supports the district court’s conclusion that a reasonable person in Mora-Alcaraz's position would not have felt free to end the questioning and leave the mall. The district court properly ordered the statements suppressed because they were the product of a custodial interrogation in which Mora-Alcaraz was not advised of his rights pursuant to Miranda. The order suppressing Mora-Alcaraz’s inculpatory statements to Officer Jackins must be affirmed.” Id. at *5.

Of Note: The defense argued that the government’s interlocutory appeal was untimely, because it was filed thirty days after the denial of the motion for reconsideration ( instead of thirty days after the original order suppressing evidence_. Id. at *3. Rule 4(b) of the Rules of Appellate Procedure lists motions that toll the time for appeal, and government motions for reconsideration are not on that list. Id. In a decision of first impression, the Ninth disagrees. Judge Schroeder holds that Rule 4(b)(b)(3)(A) refers to appeals by criminal defendants, not to by the government. Id. The effective rule: a motion to reconsider tolls time for a government appeal.

How to Use: Most Miranda cases involve police stations. How should the Court evaluate “custodial” interrogations in public places (like a mall?) Judge Schroeder does a thorough job carefully working through the “Kim” factors that guide these types of “public places” Miranda cases. See id. at *4-*5. 

Note that the cops’ separation of the boy from Mora-Alcaraz was an important factor in the “custodial” analysis. Id. at *5. As the Court explained, “No physical restraint of Mora-Alcaraz was necessary so long as the police kept him separated from his son. He could not leave.” Id. at *5. 

Turn to Mora-Alcaraz when cops interrogate your client in a public place.        

For Further Reading: The heart of this victory rests upon the Ninth Circuit's great decision in United States v. Kim, 292 F.3d 969 (9th Cir. 2002). Kim was written by Judge Berzon . . . who by happy coincidence was the second Circuit judge on this Mora-Alcaraz panel. For an interesting discussion on Kim’s role in other Miranda jurisprudence, see Daniel C. Isaacs, Miranda’s Application to the Expanding Terry Stop, 18 J.L. & Pol’y 383 (2009), available here.

 

Picture of the Mall Cop from https://www.sonypictures.com/movies/paulblartmallcop 

Picture of the Honorable Judge Mary Schroeder from https://www.ali.org/members/member/100673/

 

 

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

 

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Bean v. Matteucci, No. 19-35119 (1-20-21)(Paez w/Antoon; dissent by Rawlinson).  This is a Sell issue arising from a murder prosecution in state court. The state wishes to forcibly medicate the petitioner to restore competency. In habeas, the district court denied habeas relief, using Younger abstention as a subject matter jurisdictional bar. It isn’t. The 9^th reversed and remanded. The 9^th concluded forcible medication to restore competency involves severe personal liberty interests cognizable in habeas and cannot be remedied after trial. The exceptions to Younger abstention were met. Dissenting, Rawlinson would find this is not a core habeas issue.

Congrats to AFPD Oliver Loewy of the Oregon FPD (Portland).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/20/19-35119.pdf

 

US v. Gear, No. 19-10353 (1-19-21)(Per curiam: Lee, Bumatay, and Silver. Concurrence by Silver. Partial concurrence and partial dissent by Bumatay).  

This is a Rehaif “knowledge” issue arising from a defendant being a prohibited possessor because of his nonimmigrant-visa holder status. After Rehaif, the 9^th holds that “the government must prove a defendant knew he had a nonimmigrant visa to satisfy the statute’s mens rea requirement.” (4). For a conviction, the government must prove the defendant knew he was admitted into the country under a nonimmigrant visa. It isn’t enough that the government prove what the visa was labeled. The government can prove knowledge by showing (1) the defendant knew his visa was classified as a nonimmigrant visa; or (2) knew the offending characteristics as a visa issued to a temporary alien coming for a specialty occupation. 

Unfortunately for the defendant, he cannot show he was prejudiced by the erroneous jury instructions under plain error. He admitted he knew it was illegal for him to possess a firearm. Thus, the 9^th affirms.

Concurring, Silver finds the evidence overwhelming. She writes though to argue that the government should not be able to prove the knowledge alternatively through (1) and (2) above. It is not enough to know his visa was classified as a nonimmigrant visa. The government must prove knowledge of the offending characteristics.

Butamay, in his dissent, would find prejudice and return for a new trial.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/19/19-10353.pdf

Case o' The Week: Backward-looking Brady Blues - Bruce II and Brady Obligations

 “Prosecutors cannot turn a blind eye to their discovery obligations.” 

United States v. Bruce II, 2018 WL 2021 WL 98242 (9th Cir. Jan. 12, 2021), decision available here.

Players: Decision by Judge Christen, joined by Judge Hawkins and visiting DJ Gritzner.

Facts: Suspects visiting Atwater prison were interrogated, and agreed to cooperate against “Officer Johnson” in an alleged drug-smuggling scheme. Id. at *2.

The cooperators described the officer’s build and noted he wore a Steelers hat – when shown a Facebook photo of defendant (and prison guard) Bruce in a Steelers hat, a cooperator identified Bruce immediately. Id.

The cooperators went to Atwater in an arranged meet: Bruce circled the lot and was then arrested. Id.

Before Bruce’s trial, the government filed an ex parte motion for in camera review of materials relating to prison guard and supervisor Paul Hayes. Id. Hayes was the subject of dozens of inmate complaints, was under active investigation for drug smuggling in another prison, and had been at the stop and arrest of Bruce. Id. The court granted the government’s motion not to disclose this information to the defense. Bruce was convicted at trial. Id. at *3. 

Shortly after Bruce’s verdict, the government indicted Hayes – but the district court denied Bruce’s motion for a new trial alleging a Brady violation

Issue(s): “Bruce argues he is entitled to a new trial because the government violated the discovery obligations imposed by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In particular, Bruce argues the government violated his right to due process because it failed to disclose evidence of another prison guard’s alleged malfeasance.” Id. at *1.

Held: “We agree with Bruce that at least some of the withheld evidence was exculpatory, but conclude it was not material within the meaning of Brady. The district court did not err by denying Bruce's motion for a new trial.” Id.

Of Note: The first issue in Bruce II is a challenge to the suggestive identification. Id. at *4. Sadly, the Ninth rejects a strong defense challenge to the use of a Facebook photo – of Bruce wearing a Steelers hat – as the picture that was shown to the cooperators. Id. at *5.

It is a disappointing analysis, but one that merits reading (and distinguishing) if raising a suggestive ID challenge.  

How to Use: Although the defense Brady challenge ultimately fails on prejudice, the opinion does have a very helpful discussion of what is “exculpatory.” Id. at *8. Judge Christen rejects the government’s attempts to conflate the “materiality” and “exculpatory” analyses, and chastises the government for failing to “acknowledge its broader ethical responsibility” to search out information relating to Hayes. Id. Even if the government did not intend to call Hayes as a witness, it still “bore the burden of investigating whether potentially exculpatory evidence existed.” Id.

While this opinion begins with a suggestive-ID loss and ends with a prejudice whimper, mine its middle for useful gems on Brady obligations.                              

For Further Reading: In October of 2020 the Due Process Protection Act (“DPPA”) created advisement requirements to remind the government of its Brady obligations. See article here. 

Would a DPPA advisement have prevented the deeply troubling Brady violations that were chastised in Bruce II? Nope. A pretrial Brady order with more teeth than the DPPA is needed – and one that promises to enforce California Rule of Professional Conduct 3.8 if there are violations. See Rule 3.8 here. 

An admirable model Brady order has long been in use in D.C. – something to emulate out here in the West. See D.C. Standing Order here. 

 

 

“Turning a blind eye” illustration, of Lord Nelson, from https://stumblingandmumbling.typepad.com/stumbling_and_mumbling/2017/03/david-daviss-strategic-ignorance.html

 

 

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

 

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US v. King, No. 20-10007 (1-14-21)(Bumatay w/Callahan & Presnell).  The issue concerns whether a warrant was overbroad. The police investigated a domestic violence incident and learned that the defendant – a prohibited possessor – might have a specific “large silver and gold revolver.” The affidavit for a warrant asked for a search for the firearm; the warrant issued stated “any firearm” and firearm related items. The search uncovered a whole trove of firearms and ammunition. The district court denied the motion to suppress.

The 9^th affirmed. It held that the warrant was not overbroad. The 9^th distinguished Millender v. County of Los Angeles, 620 F.3d 1016 (9^th Cir. 2010), rev’d sub nom Messerschmidt v. Millender, 565 U.S. 535 (2012), In Millender, the warrant was overbroad as it went from an investigation of one firearm in an assault case to authorizing a search for any firearm. Under those facts, the specific could not lead to the general rummaging.

Here, the search for firearms was related to the defendant being a prohibited possessor – evidence of his prohibited status, with facts that support probable cause there were other weapons around him given his record and circumstances. In Millender, the search led to weapons unrelated to the offense; the search here led to evidence of the offense suspected. The property was not protected, but illegal.

US v. Nora, 765 F.3d 1049 (9^th Cir. 2014) was distinguished because of tainted evidence. The only untainted evidence was for one weapon, not several. Again, more evidence was supposedly reasonable to believe there were more weapons involved.

The 9^th concluded by finding “good faith” reliance by the officers.

In a sentencing issue, the 9^th held that the challenge was waived by the plea.

CJA Carl Gunn fought hard. The 9^th’s distinctions could seem stretched given the evidence.

The decision is here: 

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/14/20-10007.pdf

US v. Bruce II, No. 19-10289 (1-12-21)(Christen w/Hawkins & Gritzner). This appeal arises from a prison guard’s conviction on a slew of charges related to smuggling drugs into the institution. Bruce challenged the identification of him through a Facebook photo and raised a Brady claim. The 9th affirmed the identification: the contact who identified the defendant saw him previously, and the circumstances were not too suggestive. As for Brady, the exculpatory information was that another guard was being investigated at the time and was later charged. Bruce’s defense here was that some other guard smuggled in drugs. The 9th found a Brady violation: the information was exculpatory; it went to the defense; it was admissible; and the prosecutor should have known. The prosecutor had even filed an ex parte in limine motion to shield the information. Alas, for Bruce, the 9th found that the information was not material given the circumstances of the other guard’s involvement (limited) and the evidence focused on Bruce.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/12/19-10289.pdf

Hooper v. Shinn, No. 08-99024 (1-8-21)(Bennett w/Nguyen & Nelson)(Note: This is an AZ FPD CHU case). The 9th affirmed the district court’s denial of petitioner’s Brady claims, leave to amend the petition, and Martinez post-conviction IAC claims. The Brady claims involve benefits to a witness and delayed disclosures of police reports and photos. AEDPA deference foreclosed consideration; but the 9th concludes, the Brady evidence was not material. The petition’s amendment to allege the death penalty was unconstitutional based on convictions now invalid was found futile. Last, petition could not prove prejudice for any IAC failure by post-conviction counsel.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/08/08-99024.pdf

US v. Grimaldo, No. 19-50151 (1-7-21)(Lee w/M. Smith & Cardone). Just because you have a gun (and are a prohibited possessor being a felon) and you have a quarter pound of meth for personal use doesn’t mean that having the firearm (nonoperable by the way) emboldens you to use drugs.  The 9th (Lee) vacates the GL adjustment for use of a firearm in furtherance of a felony, 2K2.1(b)(6)(B) and remands. The court has to explain why possessing the firearm makes it more likely you will use drugs so it is “in furtherance” of the possession.  The opinion (Lee) pushes back on the assumption that drugs and guns are always tied together. The panel acknowledges drug trafficking might be different. Here, there has to be a factual showing or argument that ties to trigger the adjustment. The 9th also vacates the 36 mo sentence for possession because the gov’t failed to file notice of prior drug convictions. Last, the 9th holds it was not an abuse of discretion for the PSR to record prior arrests without convictions.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/07/19-50151.pdf

US v. Henry, No. 19-50080 (1-6-21) (Rosenthal w/Christen & Watford). This appeal arises from convictions for conspiracy to commit bank robbery, armed bank robberies, bank robberies, and three 924(c) counts. The 9th affirms against Speedy Trial challenges, Pinkerton liability, and defective jury and verdict forms.

In affirming, the 9th reviews the Speedy Trial claims. It recognizes that continuances stretching the case to almost a year is concerning, especially as the defendant had objected. However, the three continuances were for good cause: the court made the record as to ends of justice, the continuances were not for a disfavored purpose (forcing cooperation), and defense counsel stipulated.

In looking at the Pinkerton challenges, the 9th concluded that the 924 convictions were valid under foreseeability or aiding and abetting. The underlying offenses had elements of force. Further, 924 convictions can be sustained under accomplice liability. A question may be raised under Rosemond v. US, 572 US 65 (2014) whether advance knowledge is required for Pinkerton liability, but this is a poor vehicle to drive the point given the holding, facts of this case, and plain error review. The 9th concluded too that the verdict form should have required “use of a weapon” for the armed bank robbery counts, but the jury instructions were proper, and agreed to by counsel. There was an element of force.

A valiant appeal by Ben Coleman, CJA counsel.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/06/19-50080.pdf

Case o' The Week: The Crimes of Grimaldo - Grimaldo and USSG Section 2K2.1 Enhancements

 “[I]n imposing enhancements under the Guidelines, we cannot be swayed by speculation or convinced by conjecture.” 

United States v. Grimaldo, 2021 WL 57147, *4 (9th Cir. Jan. 7, 2021), decision available here.

 Players: Decision by Judge Lee, joined by Judge Smith and WD Texas District Judge Kathleen Cardone (the Chair of the “Cardone Commission,” on the independence of the defense function in the federal criminal justice system.)  

 Facts: Grimaldo was a passenger in a car that was driving away from a motel. The model was a “vibrant hub for narcotics transactions and prostitution.” Id. at *2. A search of Grimaldo revealed 107 grams of meth (nearly a quarter pound), and a loaded pistol that did not really work. Id. A later search of Grimaldo’s motel room produced a digital scale and glass pipes. Id.

Grimaldo was charged with possession of meth for distribution, a Section 924(c) charge, and a Section 922(g)(1) count. Id. He pleaded guilty to the felon-in-possession charge and went to trial on the other counts.

 The jury convicted Grimaldo of straight possession (a lesser included), and acquitted him on the possession-in-furtherance-of-a-drug-trafficking offense. Id. at *2.

  At sentencing, the district court imposed a four offense-level increase for the possession of a weapon in connection with another felony, under USSG § 2K2.1(b)(6)(B). Id. The defense did not object to this enhancement.

 Issue(s): “At sentencing, the district court adjusted Grimaldo’s Guideline range four levels upwards under U.S.S.G. § 2K2.1(b)(6)(B). Grimaldo claims that this constitutes plain error.” Id. at *3.

 Held: “We agree, and vacate and remand to the district court for further consideration.” Id. “In this case, we recognize that possessing a firearm does not necessarily embolden a defendant to commit a felony and thus subject him to a sentencing enhancement.” Id. at *1. 

 “We hold that the district court erred in concluding that Grimaldo’s pistol emboldened him to possess methamphetamine. The district court made no findings that Grimaldo's firearm made his drug possession more likely.” Id. at *2.

Of Note: In another oddity in this case, the district court imposed a three-year sentence on the possession charge, despite the fact that the single prior alleged did not authorize a stat max that high. Id. at *4.

On appeal, Grimaldo argued that this was per se plain error, because it was a (plainly) illegal sentence. Id. The government objected, because this possession sentence ran fully concurrent with the ten-year § 922(g) sentence. Id.

The Ninth neatly sidesteps the constitutional question, and “exercises its discretion” to simply vacate the three-year sentence. Id. at *5. The core due process issue, therefore, survives as a fight for another day.

How to Use: “Waiver, waiver!” grumbles the government, noting that the defense agreed to this guideline enhancement six times while in the district court. Id. at *3.

“Meh,” replies the Ninth.

  As Judge Lee explains, “The government attempts to raise mountains from molehills, but nothing in the record erects an insurmountable barrier to appellate review.” Id. Grimaldo is an intellectually-honest opinion that wants to get sentencing right: turn to its flat rejection of waiver when fending off the technicality-gambits of the government on appeal.                                           

For Further Reading: A lifetime ago (or rather, three years ago), before a worldwide plague and incitements of insurrection and mobs inside the U.S. Capitol, we talked about things like the independence of the defense function. 

To that end, District Judge Cardone (on the Grimaldo panel), lead her committee over several years of fact-finding, culminating in a remarkable and historic report.

The Honorable District Judge Kathleen Cardone

The Cardone Commission Report recommended deep, systemic, and meaningful structural changes to the defense function in the federal system. See CJA Study Webpage here. 

So what came of that remarkable effort?

The Administrative Office and the Judicial Conference of the U.S. Courts decided to deal with the Cardone’s Committee’s concrete recommendations for action by – well, by spending several more years studying the study. See the FJC webpage here. 

Maybe the 117th Congress, and a new White House, will be willing to move the question of defense independence out of the A.O.’s interminable studies, and into meaningful legislation action on the Criminal Justice Act?

 

 

Image of “The Crimes of Grindelwald” from https://tuftsdaily.com/arts/2018/11/26/fantastic-beasts-crimes-grindelwald-crime-movie/

 Image of the Honorable Judge Kathleen Cardone from https://www.uscourts.gov/news/2016/06/01/ad-hoc-panel-weighs-possible-changes-cja

 

 

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

 

 

 

US v. Dixon, No. 19-10112 (12-31-20)(Wardlaw w/Siler & M. Smith). The 9th finds it is a “search” when a police officer inserts a car key into a vehicle to determine ownership. The defendant was on SR, but it was unclear who owned or controlled the car. The 9th vacated the denial of the suppression motion and remanded for a hearing to determine who owned the car. Last, the defendant was convicted of simple possession of drugs. The court had categorically denied acceptance of responsibility because he did not admit possession with intent (the jury hung on that charge). This was error. If the officer’s acts of checking the car were reasonable and constituted probable cause of ownership or control, then a resentencing is necessary.

The SCOTUS decision in US v. Jones, 565 US 400 (2012) required the vacating of the denial of the suppression motion. Jones stressed that the 4th amendment protects reasonable expectations of privacy and physical trespass of property.  It is a two-part analysis.  Jones is irreconcilable with prior 9th precedent, US v. $109,179 in US Currency, 228 F.3d 1080 (9th Cir. 2000), which allowed an officer to use a vehicle key to ascertain ownership. $109,179 in US Currency is thus abrogated.

On remand, the court has to determine if the defendant owned or control the vehicle (a blue minivan). There were two in the parking lot. When the defendant was stopped leaving an apartment complex, he dropped bags of groceries and keys. The 9th stresses that the standard for ownership or control is probable cause; it isn’t reasonable suspicion because an innocent person could own the car.

Congrats to Jonathan Abel, Juliana DeVries and Elizabeth Falk of Cal N FPD (San Francisco).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/31/19-10112.pdf

 

US v. Harris, No. 19-10006 (12-29-20)(Bennett, Wallace, & Bea). The 9^th affirms convictions for agg identity theft, 18 USC 1028A, in relation to wire fraud. The defendant ran a speech therapy service.  She used the name and identifications of a speech pathologist to create bills for services that never occurred. Using the name and identifications of the speech pathologist, who had performed other services, were “during and in relation” to the commission of wire fraud. It was not just the conflation or exaggeration of services rendered.  These were fraudulent submissions.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/29/19-10006.pdf

Case o' The Week: Ninth No Fan of Minivan Plan - Dixon, the Fourth, and Those with Suspicionless Search Conditions

The Fourth Amendment protects our property against warrantless and unreasonable government intrusions.

(Even when the property is a minivan . . . .)

  United States v. Dixon, 2020 WL 7777884 (9th Cir. Dec. 31, 2020), decision available here.

 Players: Decision by Judge Wardlaw, joined by Judge M. Smith and visiting Judge Siler. 

Admirable win for former ND Cal AFPDs Jonathan Abel and Juliana DeVries, building on the district court litigation of Trial AFPD Elizabeth Falk and Appellate AFPD Steven Koeninger.  

Facts: Dixon was on supervised release with a warrantless, suspicionless search condition. Id. at *2. A cop saw Dixon leave an apartment and (allegedly) walk towards a blue minivan. Id. When cops stopped Dixon he dropped two garbage bags he was carrying, and keys. Id. Using one those keys, the cops unlocked, opened, and searched the minivan. They found pot. Id.

Dixon was charged with drug distribution allegations in the Northern District of California.

  During the suppression litigation, Dixon submitted a declaration explaining that he was not in fact walking towards the blue minivan. Id.

   The district court denied the suppression motion without an evidentiary hearing. Id. at *3.   

 Issue(s): “We must decide whether the insertion of a car key into a lock on the vehicle’s door for the sole purpose of aiding the police in ascertaining its ownership or control is a ‘search’ within the meaning of the Fourth Amendment.” Id. at *1. “[W]e must determine whether inserting that key into the minivan’s lock was itself permissible under the Fourth Amendment. This matters because if inserting the key into the car lock violated Dixon’s Fourth Amendment rights, the officers’ resulting knowledge and authority to search that vehicle would be tainted by a Fourth Amendment violation.” Id. at *3.

   “To determine whether a Fourth Amendment violation occurred, we ask two primary questions: first, whether the government conduct amounted to a search within the meaning of the Fourth Amendment; and

   [S]econd, whether that search was reasonable.” Id. at *4. “The level of suspicion required to determine whether a vehicle is subject to a warrantless search condition appears to be an issue of first impression in this circuit . . . .” Id. at *6.

Held: “In light of recent Supreme Court authority tying the Fourth Amendment's reach to the law of trespass . . . we must conclude that because ‘[t]he Government physically occupied private property for the purpose of obtaining information,’ United States v. Jones, 565 U.S. 400, 404 (2012), it conducted a search within the meaning of the Fourth Amendment.” Id. at *1.

  Issue One: “Applying Jones’s property based analysis, we must conclude that a Fourth Amendment search occurs when an officer physically inserts a key into the lock of a vehicle for the purpose of obtaining information, as occurred here. Thus, our decision in Currency is ‘clearly irreconcilable’ with the Supreme Court’s property-based Fourth Amendment jurisprudence, and it cannot stand to the extent that it concluded that no search occurred on these facts.” Id. at *4.

  Issue Two: “We hold that before conducting a warrantless search of a vehicle pursuant to a supervised release condition, law enforcement must have probable cause to believe that the supervisee owns or controls the vehicle to be searched.” Id. at *6. “We therefore remand this case for the district court to conduct an evidentiary hearing and to rule on Dixon’s suppression motion in light of the Jones and Jardines principles we now apply.” Id.

Of Note: The great Dixon opinion is thick with helpful holdings. In addition to a welcome decision of first impression on supervisees and vehicles, the Ninth rejects the government’s attempt to exempt those who have suspicionless search conditions from Jones’ property-based approach. Id. at *5 & n.2. 

A very important Fourth Amendment read.

How to Use: Dixon admitted possession and denied distribution: the jury convicted on simple possession. The DJ, however, denied the two-level reduction for acceptance of responsibility under USSG Section 3E1.1(a). Id. at *8. The Ninth explains that the DJ got the guideline wrong -- Dixon should have received the acceptance break. Id. at *8. 

Dixon is a quiet -- but important -- acceptance-of-responsibility victory, hidden within an attention-grabbing Fourth Amendment win.

For Further Reading: Importantly, the cops’ body cam video substantiated Dixon’s declaration in this case. Id. at *2. Body camera video is a simple reform that adds much integrity and accountability to the criminal justice system.

In our George Floyd era, why would any US Attorney Office federalize a state case that does not have body camera video? That obvious question should be posed to the candidates now eagerly vying for US Attorney gigs in the Biden administration. VP Harris famously touted supporting body cameras, after all.  

Although there are over 100 state, city and county law enforcement agencies in the Northern District of California, Lord only knows which of them have body camera policies or provide the gear to their cops, deputy sheriffs, park and patrol officers.   

For an informative report on this important issue see the report of a San Mateo grand jury, here. 

 

 

Image of blue minivan from https://www.cargurus.com/Cars/l-Used-Minivan-bg4

 

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

 

 

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