Ninth Circuit Blog

2012-02-01T13:47:00.000-08:00

U.S. v. Noriega-Perez, No. 10-50501 (2-1-12) (Tallman with Fernandez; partial dissent by Moore, D.J.).

It is hard to find renters now a-days. In this case, with two houses close to the Mexico border, the defendant rented to alien smuggling organizations (the rent was paid on time). Convicted, he argued on appeal that there was insufficient evidence of the alienage of material witnesses named in the indictment but who did not testify; eight did. The 9th held there was sufficient evidence of alienage. The witnesses who testified were situated in the same place, under the same conditions, as the ones who did not. An inference is permitted. The 9th also held that there was sufficient evidence of cross-border crossing, even if some of the witnesses were stopped at another location prior. Moore dissented from this portion concerning those witnesses who stopped at other locations. He argues that there has to be a terminus, and the nexus may well be stretched to an extent it would not support the cross border entry, but rather a harboring conviction.

2012-01-30T13:13:00.000-08:00

U.S. v. Casasola, No. 10-50376 (1-30-12) (Schroeder with Gould and McCuskey, D.J.).

This is a derivative citizenship issue on appeal from a 1326 conviction. The defendant argued that he automatically received derivative U.S. citizenship upon his father's naturalization in 1997, when he was 14. The statute at the time required both parents to naturalize before the defendant's 18th birthday. His mother did not naturalize until he was 21. If the parents were separated, then the father's naturalization would have made the defendant a citizen. There was a distinction then between married and unmarried (the law changed one month after defendant's 18th birthday). The defendant argued that this violated his equal protection. It was not rational. Yes it was, concludes the 9th, on the basis of the argument that this protects the rights of a non-naturalized custodial parent. It also follows 9th precedent in Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003). The statute also survives another equal protection challenge in that it required the custodial parent, in a separation, to have sole custody. The 9th also declined to remand for resentencing in the wake of the criminal history change to the recency points of a prior conviction. The 9th declines to follow the lead of the 1st Circuit which permitted such a remand. The 9th, under Urena, 659 F.3d at 910, declined to follow the 1st Circuit where the sentence was reasonable and the procedure followed correct. There is now a circuit split on the issue.

Case o' The Week: JDA is A-OK -- Gonzalez and Joint Defense Agreements

2012-01-29T15:32:00.000-08:00

In good times and in bad, in sickness and in health, through habeas claims of ineffective assistance of counsel: what defense agreements have joined let no district court put asunder.

United States v. Gonzalez, 2012 WL 206266 (9th Cir. Jan. 25, 2012), decision available here.

Players: Big win by ND Cal AFPD Dan Blank and Research and Writing Attorney Steven Koeninger. Decision by Judge Hawkins, joined by Judge M. Smith and DJ Duffy.

Facts: Gonzalez and his wife were both charged of an insurance scam relating to a car, and with burning the car to further the scheme (a 10-year mand-min). Id. at *1. Their trials were severed. Id. Gonzalez, who went first, was convicted of the fraud and beat the burning-of-the car charge. Id.

Gonzalez offered to testify on his wife’s behalf at her trial; her counsel demurred, and the wife was convicted of all counts. Id. The wife filed a habeas alleging ineffective assistance of counsel ("I.A.C.") for failing to offer Gonzalez’s testimony. During the habeas litigation, the government sought subpoenas of the wife’s original defense counsel. Id. Gonzalez’s defense counsel, AFPD Blank, sought quashal of the subpoenas and depositions of the wife’s trial defense counsel. This motion to quash was based on an oral joint defense agreement (“JDA”) between Gonzalez and his wife made before the original trials. Id. at *2. The district court denied the motions to quash, holding that a habeas claim of I.A.C. trumped any JDA, and that all information to and from trial counsel bearing on the I.A.C. claim was discoverable. Id. Gonzalez filed an interlocutory appeal. Id.

Issue(s): “On appeal, the government does not advance the rationale proffered by the district court. Rather, it argues that (1) Gonzalez did not sufficiently establish on the record that a JDA actually existed, (2) that such an agreement could not exist in the circumstances here, where Gonzalez’s defense was adverse to [his wife’s], and (3) even if one existed, the court correctly held that [the wife’s] section 2255 claim acted as a unilateral waiver of the privilege in these circumstances.” Id. at *3 (note omitted).

Held: 1 & 2: Existence of JDA: “Here, there was sufficient evidence in the record to support the existence of a JDA, at least to a point.” Id. at *4. “If their mutual interest is defined more narrowly [as to the wife’s innocence relating to the use-of-fire count], then it is possible that their other adverse positions did not undermine their joint defense privilege on this specific issue.” Id. at *5.

3. Waiver by Habeas Claim: “[A]llowing unilateral waiver of confidential communications by a single codefendant without the consent of the others would likely severely undermine the rationale for the joint defense privilege in the first place . . . [W]e conclude the district court’s analyses regarding privilege versus work product and unilateral waiver by filing the section 2255 petition were in error.” Id. at *8 (citation omitted).

Of Note: Gonzalez joins United States v. Henke, 222 F.3d 633 (9th Cir. 2000) as a lead Ninth JDA decision. (Interestingly, Henke also arose out of the ND Cal). Mine Gonzalez heavily for its many JDA gems: these agreements can be oral, they can be evidenced by attorney conduct, they can be count-specific in the midst of other adverse defenses, and – most importantly – they cannot be unilaterally waived by a co-defendant asserting an I.A.C. claim.

That is a terrifically important holding: imagine a JDA that is only as good as long as all defendants remain happy and no one goes after their attorneys on a post-conviction habeas. That JDA would be worthless, making the defense of complex and multi-defendant cases impossible. Judge Hawkins, thankfully, well-understands the broader significance of the Gonzalez decision, and carefully explains why unilateral waiver of JDAs by IAC petitioners would make JDAs meaningless. Id. at *7-*8.

How to Use: As Judge Hawkins emphasizes, the defense can have an oral or an implicit JDA (and many times, it makes sense to do so). Nonetheless, sometimes the clarity of a written agreement can moot the government’s whining when the case later implodes. There are many flavors of written JDAs – from limited shared work-product agreements with minimal protections, to full “Henke” agreements with cross-duties of loyalty and confidentiality. Defense counsel interested in these various types of written JDAs can contact the ND Cal FPD for samples.

For Further Reading: JDAs are wonderfully complicated beasts that spawn ethical issues by the bushel. For a concise outline of these knotty ethical questions, see here.

Image of burning car from http://electricmini.blogspot.com/2011/06/electricity-producers-launch-free-study.html

Steven Kalar, Senior Litigator ND Cal FPD. Website at www.ndcalfpd.org

.

2012-01-26T14:11:00.000-08:00

U.S. v. McGowan, No. 10-50284 (1-26-12) (Reinhardt with Kozinski and W. Fletcher).

The 9th previously had reversed a judgment of acquittal following a jury's verdict of guilty. The case involved a prison guard's assault on two inmates. On this appeal, defendant argues that the court erred in failing to conditionally rule that he was entitled to a new trial. This was under Fed. R. Crim. P. 29. The 9th held that the court was not required to make such a ruling, and indeed, had no such authority to make such a ruling absent a defendant's motion. The 9th so held because the defense may want a judgement but not a new trial. There are strategic and actual reasons. Because there was no motion here, the court did not err in not ruling. The 9th also declined to rule on the IAC claim for failing to so move, leaving that to a post-conviction 2255 proceeding. Lastly, the 9th did vacate the 51 month sentence, having been imposed using suspect unreliable statements from a former inmate that was untested. On remand, the case is reassigned.

2012-01-26T07:53:00.000-08:00

U.S. v. Gonzalez, No. 11-15025 (1-25-12) (Hawkins with M. Smith and Duffy, D.J.).

Joint Defense Agreements (JDA) can be great, except when they aren't. And, they aren't when the participants start pointing fingers in an IAC proceeding. Here, the 9th looks at a JDA between co-defendants, and spouses, charged with fraud and a fire count (10 year mandatory min). The trials were severed, when the husband said with chivalry that he did it and the wife knew nothing. After severance, the husband went first and then argued, unchivalrously, that he knew about the fraud (getting rid of a car for insurance), but not the fire. He was only convicted of fraud; the wife went down on all counts at her trial. He did not testify. The wife - the defendant here - raised IAC, arguing that her lawyer should have called the husband. The district court ordered depositions. "Wait," said husband, there is a JDA. The court shrugged and said when the parties raised IAC, the JDA became null. Not so, held the 9th, on an interlocutory appeal. Explaining JDAs, and the jurisprudence, the 9th concludes that attorney-client privilege extended to all involved. There appeared to be a JDA formed here, albeit orally. Now, comments may have been made after the JDA collapsed, but no findings were made. The 9th remanded for the district court to hold an in camera hearing to determine if and when the JDA ended, and when the comments about testifying were made.

Congratulations to AFPD Dan Blank of the Northern District of California (San Francisco) for the win.

U.S. v. Juvenile Male, No. 09-30330 (1-25-12) (Wardlaw with Gould and Bybee).

Does SORNA trump the protections of the Federal Juvenile Delinquency Act? Does SORNA survive constitutional challenges in the context of the FJDA? These issues were raised in a joint appeal brought by three juveniles convicted of aggravated sex abuse with children and ordered to comply with sex offender registration under probation or SR. The 9th held that Congress in enacting SORNA carved out an exception to the confidentiality provisions of the juvenile act, which allowed for registration which would disclose names. The 9th also upheld SORNA against a wide range of constitutional challenges in the context of juvenile adjudications.

Although losing, the Federal Defenders of Montana fought hard in mounting the challenges.

Case o' The Week: Ninth Rejects Gov't's "Attempt" Attempt - Kuok and 18 USC Section 2

2012-01-22T09:43:00.000-08:00

This holding ain't easy, but it's good, and well-worth the mulling it takes to understand:

It is a crime to cause someone to attempt to unlawfully export restricted military gear -- but it is not a crime to attempt to cause someone to do so. United States v. Kuok, __ F.3d __, 2012 WL 118571 (9th Cir. Jan. 17, 2012), decision available here.

Players: Decision by Judge Bybee (above right), big win by San Diego Ass’t Federal Defender Todd Burns.

Facts: Kuok, a citizen of Macau, attempted to cause undercover ICE agents to unlawfully export restricted military gear. Id. at *1.They didn’t, of course: instead they arrested Kuok as he hit the Atlanta airport on his way to Panama to complete the deal. Id. at *2. He was charged in San Diego (more on that below) with attempting to export restricted military gear without the required license: a violation of the “Armed Export Control Act” or “AECA.” Id. at *1. That statute does not have an “attempt” provision. Id. at *7. Kuok was convicted at trial.

Issue(s): “Kuok challenges his conviction on the grounds that the AECA and its implementing regulations do not create liability for attempting to cause another person to violate the AECA.” Id. at *7. “In response, the government points to 18 USC § 2(b), which states: ‘Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.’” Id. at *7.

Held: “[T]he government’s case at trial did not establish that Kuok caused an attempt to export: it established that he attempted to cause an export. That is, Kuok attempted to cause the undercover ICE agent to export the [restricted material] without a license.” Id. at *7 (emphases in original). “The government’s argument that attempt should rationally be read into § 2(b) fails in light of the rule against reading an attempt into a criminal statute that does not explicitly include it.” Id. “We hold that attempting to cause an export of defense articles without a license is not a violation of U.S. law, and vacate Kuok’s conviction on count three.” Id. at *9.

Of Note: While this is a nice little win on an obscure and rarely-used statute, it is an important victory on a much bigger principle. The government’s argument in Kuok was dangerous: it would have created criminal liability if you attempted to cause a federal agent to do something. Id. at *7. The theory would have done so by radically expanding an already expansive statute: 18 USC § 2, the general federal “principal / aider & abettor” provision. Put differently, the government wanted to make it a crime for an aider and abettor to attempt to cause an offense – even if that offense was impossible (like getting federal agents to export restricted gear) and even if that offense was never completed. Judge Bybee doesn’t buy it, and explains why in a thoughtful and extended discussion. Kuok will be an key opinion for both “principal” and “attempt” law in the circuit.

How to Use: Why San Diego? Just because the ICE agents decided to cash Kuok’s money order there. Id. at *4. This smacks of “manufactured venue” – agents cherry-picking the district by manipulating the facts of the offense. Judge Bybee doesn’t bite, and because the Court doesn’t find the venue-manufacture “extreme” in this case Kuok’s venue challenge fails. Id. Critically, however, the Court declines to“decide the issue today” of whether “manufactured venue” exists as a defense in the Circuit. Id. If your case involves venue-manipulation, take a close look at Kuok’s venue discussion, and specifically the distinction between manufacture of jurisdiction and manufacture of venue. Id.

For Further Reading: How could Kuok be any better? By giving us a terrific defense of the duress defense – with a reversal for failure to give duress instructions. Id. at *13. Kuok is now one of the important, post-Dixon decisions in the Ninth on the right to a duress instruction. For a recent discussion of the federal duress defense – and its kissing cousin, “necessity,” – see Monu Bedi, Excusing Behavior: Reclassifying the Federal Common Law Defenses of Duress and Necessity Relying on the Victim’s Role, available here.

Image of the Honorable Judge Jay Bybee from http://oneutah.org/wp-content/uploads/2009/04/bybee.jpg

Steven Kalar, Senior Litigator ND Cal FPD. Website available at www.ndcalfpd.org

.

2012-01-20T11:03:00.000-08:00

U.S. v. Juvenile Male, No.11-30065 (1-20-12)(McKeown with Guy and Tallman).

The issue of "Who is an Indian" is raised in this juvenile matter. The juvenile is at least one-quarter Indian blood, and is enrolled in a tribe, resides on a reservation, and has received membership benefits. He argues, however, that he does not consider himself an Indian. It does not matter here what he thinks, reasons the 9th, because under the jurisdictional test established in Bruce, 394 F.3d at 1223-24 and more recently in U.S. v. Maggi, 598 F.3d 1073 (9th Cir. 2010), there was sufficient evidence for a trier of fact to determine he was an Indian beyond a reasonable doubt. The juvenile defendant did not contest the blood quantum prong of Bruce (some Indian blood), and he met three of the four factors in the second prong, looking at recognition -- enrollment, residence, membership benefits. There was more than enough evidence, even aside from the own consideration, to meet the jurisdictional test.

2012-01-19T14:01:00.000-08:00

U.S. v. Solorio, No. 10-10304 (1-19-12) (Berzon with O'Scannlain and Lasnik, D.J.).

The 9th affirms a convictions for drug trafficking arising from an undercover operation. Of interest is the 9th's discussion and holding regarding interpreter oaths. Some courts have an interpreter swear an oath, under FRE 604, and it is kept on file. Other courts have interpreter's swear under FRE 603, witness oath, for the witness or trial. Here, there is no indication of any interpreter oath being sworn. However, there is no plain error because there is no prejudice. There is no indication that the interpretation is disputed or how it affected the trial. Of more concern is the 9th's allowance of DEA agents' testimony of other agents statements under a present sense impression and a finding of no Crawford violation. The 9th allowed the statements under a plain error analysis, finding no error. The statements were made during the course of the unfolding undercover buy, which was characterized as highly dangerous. The 9th bought the government argument that the non-testifying agents' were explaining what was happening so as to have support from other agents, and not for making a record for trial. This was characterized as like the "emergency exception" to Crawford carved out in Michigan v. Bryant, 131 S.Ct 1143, 1157 (2011). The statements were non-testimonial. The 9th concluded that there was sufficient evidence to support the convictions and no cumulative error.

2012-01-18T14:00:00.000-08:00

U.S. v. Melendez-Castro, No. 10-50620 (1-18-12)(Per curiam with Nelson, Gould, and Ikuta).

In a collateral attack on a prior deportation, the 9th finds that the defendant had not been meaningfully informed of his eligibility for a voluntary departure. He appeared before the IJ in in 1997, having a petty offense conviction for stealing $6 briefs, and the IJ stating that he never uses his discretion to cancel removal if the defendant has a criminal conviction. The 9th concludes that although the defendant had been given his right to seek cancellation, he was basically told in the same breath that it was meaningless. The 9th remands for the district court to consider prejudice. The 9th paints a sympathetic portrait of the defendant (hint hint) of being a hard worker and pretty much law abiding with extended family here, all lawfully.

Congratulations to Amy Kapoor of the Federal Defenders of San Diego.

2012-01-18T08:13:00.000-08:00

U.S. v. Kuok, No. 10-50444 (1-17-12) (Bybee with Pregerson and Davidson, Sr. D.J.).

The defendant tried to export defense articles without a license. A citizen of Macau, the defendant ran an import/export business. He sought to export military use articles from the US without a license. In these efforts, he was aided by the helpful undercover ICE agents, which led to his arrest in Atlanta while flying to Panama to complete a transaction. At trial, he raised a duress defense, arguing that a Chinese official made him seek the exports under threats to his family. The court declined to give a duress instruction. He was convicted of various conspiracy, attempts, and money laundering counts. On appeal, the 9th gave relief. It vacated two counts for lack of jurisdiction. One count involved money laundering, where the government failed to establish the $10,000 jurisdictional threshold. In an attempt to export count, the 9th held that attempting to cause an export of defense articles without a license is not a crime. In that count, the defendant tried to get an undercover agent to export an article; that differs from the defendant himself attempting. The statute does not reach to others. The 9th vacates two other counts and remands for a new trial because the court should have given a duress instruction. It was a close call, but the defendnat presented evidence that Chinese officials made a threat, were specific, and the defendant could not extricate himself. Although granting relief, the 9th turned down defendant's claims that the venue was manufactured. The 9th comes close to saying that manufacturing venue is always okay. The 9th also rejects various other arguments related to jury instructions.

Congratulations to Todd Burns of the Federal Defenders of San Diego. It is extraordinary to win on jurisdiction and on jury instructions.

Case o' The Week: Into the Breach, Leaps the Ninth Circuit - Alcala-Sanchez

2012-01-14T13:16:00.000-08:00

True, the government agreed to recommend less than three years in its deal; yes, the AUSA recommended over six years in a sentencing memo, but, if the government is really really sorry for the mistake, isn't that enough?

Nope. United States v. Alcala-Sanchez, 2012 WL 45462 (9th Cir. Jan. 10, 2012), decision available here.

Players: Decision by Judge Gould. Big win by San Diego Ass’t Fed. Defenders Vince Brunkow and Devin Burstein.

Facts: Alcala-Sanchez pleaded guilty to a fast-track illegal reentry deal, with the government promising to recommend within the range of offense level 12. Id. at *1. The PSR, unfortunately, hit the defendant with (an apparently missed) +16 crime of violence: it reckoned offense level twenty. Id. Probation thus recommended 63 months: nearly twice the 33 months the government could seek under the deal. Id.

A different AUSA than the one who negotiated the deal submitted a sentencing memo, agreed with the PSR and recommended 78 months. Id. “Breach!” howled the defense. Id. Eventually – but not immediately – the government recanted and recommended a sentence within the plea agreement’s range. Id. The district court found no breach, agreed with Probation’s calculations, and started sentencing from that higher offense level 20 range. Id. at *3.

Issue(s): “Alcala contends that the government breached the plea agreement and that the appropriate remedy is remand for resentencing before a different judge.” Id. at *3.

Held: “We agree.” Id. “Here . . . . the government admitted its mistake and recommended the agreed-upon sentence before the district court sentenced Alcala. But we conclude that the government’s later actions did not cure its earlier breach. Alcala had lost the benefit of his bargain that contemplated that the government would present a united front with him in recommending a total offense level of 12 and a 33–month sentence. Although the government in the end gave the court the correct recommendation stating that Alcala deserved the benefit of his bargain, the district court might well have thought from the government’s initial submission and its qualified statements in open court that it truly thought Alcala deserved more but it was required to assent to the plea agreement provision. Because the district court has an independent duty and freedom in rendering sentence, the harm to Alcala from the government’s initial breach and subsequent attempt to cure it is not calculable.” Id. at *4.

Of Note: Is the standard of review for the government’s breach of a plea agreement de novo, or clearly erroneous? Yes – at least in the Ninth. Id. at *3. Judge Gould notes that the Court “has not been entirely consistent” in applying its standard of review for this issue, but finds it unnecessary to resolve this issue in this case. Id.

How to Use: What is the remedy for this breach? It could be remand, with an order that the government sincerely recommend what it was supposed to recommend (and again be ignored again by the D.J.). Happily, the Ninth will have none of that – the remedy here is specific performance. Id. at *5 (“[T]he government breached the plea agreement, so we must vacate Alcala’s sentence and give Alcala the benefit of his bargain, specific performance of the plea agreement.”) (emphasis added).

This is potent stuff. Note that the opinion doesn’t say that Probation was wrong with its higher offense level, but it doesn’t matter – the government struck a deal (maybe a deal with “wrong” guidelines?) and now it and the court, it seems, are stuck with the deal. Alcala-Sanchez gives some real teeth to breach law, and in the process facilitates negotiated settlements, by apparently holding district courts to the government’s deal when the AUSA goes sideways on a bargain. It is a great opinion to wave around when an AUSA is caving to a Probation Officer intent on busting a nice negotiated dispo.

For Further Reading: Not a good week for the Feds, in the Ninth. In the remarkable United States v. Lopez-Avila decision, the Ninth calls out an Arizona AUSA by full name – repeatedly – for misrepresentations of a transcript on cross-examination. 2012 WL 89727 (9th Cir. Jan. 12, 2012), decision available here. Author Judge Bea is so palpably angry at this misconduct that he provides the web site for filing a DOJ Office of Professional Responsibility complaint in the opinion itself. Id. at *8 (Link to DOJ complaint here).

Lopez-Avila is a well-written, forceful decision that promises to be a lead prosecutorial misconduct case. Read Lopez-Avila soon: if experience is any guide, the Arizona USAO is even now lobbying to try to get the AUSA’s name removed from the opinion.

Image of "Breach" (from arcade game) from http://gamingbolt.com/wp-content/uploads/2011/01/breach_0.gif

Steven Kalar, Senior Litigator ND Cal FPD
Website at www.ndcalfpd.org

.

2012-01-13T07:52:00.000-08:00

U.S. v. Lopez-Avila, No. 11-10013 (1-12-12) (Bea with Noonan and Walter, D.J.)

It isn't nice to tell a half truth. It isn't prudent to lie to a court and jury. It especially isn't good to lie about a transcript before that court. All of this occurred in this case, and this appeal on double jeopardy grounds to the 9th. The defendant had entered into a plea for drug trafficking. At the PSR, she disclosed that she was coerced into carrying drugs. The court allowed her to withdraw from her plea, and the case proceeded to trial. At trial, the defendant testified. The prosecutor crossed examined, and impeached her with her statements from the COP hearing. The statement read by the prosecutor from the transcript was: "Ms. Lopez, has anyone threatened you?" "No." A recess later, defense counsel moved for mistrial because the exact language included the language: "Ms. Lopez, has anyone threatened you or forced you to plead guilty?" The prosecutor said that he dropped the last phrase because his reading, about threats, was a fair one. The court disagreed, as did the 9th, because the question concerned pleading guilty and not being threatened to commit the offense. The district court granted a mistrial. The court then denied the motion to dismiss for double jeopardy. On appeal, the 9th affirmed. It held that for double jeopardy to bar a retrial, the prosecutor, in Oregon v. Kennedy had to act with the goal of terminate the trial, not to win through improper means. As the 9th stressed, "The only relevant intent is intent to terminate the trial, not intent to prevail at trial by impermissible means." The 9th found here that the prosecutor purposely omitted the language, purported to have quoted the exact language, but that his intent was to win, not to goad the defense into moving for a mistrial. The 9th also found meritless defendant's claim that 28 USC 530B, concerning the rules regulating government lawyers, also applied to the state's interpretation for double jeopardy. Although the 9th ruled against the defendant, the 9th took the prosecutor to task in harsh language, and suggested to the court it might consider various options, including dismissal of the case with prejudice under its supervisory powers, or sanctions against the prosecutor. The prosecutor's name is spelt out throughout the opinion.

Congratulations to Mark Williman of the CJA panel in Tucson, Arizona.

2012-01-10T15:08:00.000-08:00

U.S. v. Alcala-Sanchez, No. 11-50030 (1-10-12) (Gould with Nelson and Ikuta).

"A promise made," Robert Service penned, "is a debt unpaid." The 9th followed this sentiment, although not so poetically, in this breach of a plea bargain case, holding the government failed to pay its debt of a sincere recommendation. The government offered a fast-track deal to a 1326 defendant, agreed that the prior conviction was a +8 (total 16), and agreed to recommend an offense level of 12 (with no agreement as to the sentence within the range). The probation officer in the PSR concluded, however, that "dissuading a witness by force or threat" was a crime of violence, and worthy of a +16. The government filed a sentencing chart/memo that repeated the PSR's calculations. At sentencing, the prosecutor who negotiated the deal, but not the one who filed the sentencing chart/memo appeared, and refused to disagree. The sentencing was continued, at which at various hearings, the prosecutor acknowledged the breach, but dithered a bit. It finally withdrew the chart and stuck by the deal. There was a lot of explaining about groaning caseloads and mistakes caused by workload. He defendant argued the government still had breached, but the court found that the government was not in breach because it stuck by its plea. On appeal, the 9th acknowledged an inconsistency in its standards of review for claims that the government breached its plea breach of plea (de novo vs clearly erroneous), but decided that because the court clearly erred, resolution of the inconsistency could wait for another day, or breach. The breach here was the failure of the government to live up to its bargain from the get go. The government breached by making a wrong recommendation. Even though the prosecutor eventually admitted her mistake, and fell in line with the recommendation, it did not matter. A breach, intentional or inadvertent, still was a breach. The defendant lost his right to a "united" front as to the argument that the offense level was a +8 and not a +16. The sentence had to be vacated and remanded, and to a different judge.

Congratulations to Deputy Fed Defenders Vince Brunkow and Devin Burstein of the Fed Defenders of San Diego.

Case o' The Week: Corporations are people too -- sometimes. Havelock and federal mail-threats statute

2012-01-08T19:04:00.000-08:00

Is a corporation a "person?" That question has sparked a potent political debate, between the Occupy Folks and presidential candidate Mitt Romney. See article here.

Sitting en banc, the Ninth has also recently wrestled with that question -- and answered (in a different context), "no." As used in a federal threats statute, a "person" means a "natural person" -- a human being. See United States v. Havelock, 2012 WL 29347 (9th Cir. Jan. 6, 2012) (en banc), opinion
available here).

Players: Decision by Judge B. Fletcher. Big win by D. Az. AFPD Dan Kaplan.

Facts: Kurt Havelock (above left) bought an assault rifle. He then sent a batch of mail less than an hour before the ‘08 Superbowl. Id. at *1. This mail bore addresses of media outlets and music-related websites. Id. Inside each item was a “media packet” with a rambling “manifesto.” Id. The manifesto had allusions to violence; some in the past tense, and some prospective – like, “I will sacrifice your children upon the alter of your excess . . . . I will slay your children.” Id. at *2.

After visiting the Post Office, Havelock drove to a parking lot near the stadium where the Superbowl was to be played, to “wait for an opportunity to shoot people.” Id. He then had a change of heart, self-surrendered, confessed, and was ultimately charged with six counts of mailing threatening communications, in violation of 18 USC § 876(c). Id. Havelock’s motions to dismiss the indictment and for a judgment of acquittal were denied by the district court. Id. at *3.

Issue(s): 1. Issue One: “Person?” Havelock argues “that the phrase ‘any other person’ in § 876(c) refers exclusively to natural persons and, because the media packets were addressed to corporations, the indictment failed to allege facts sufficient to constitute an offense.” Id. at *3.

2. Issue Two: “Contents?” Havelock argues “that the district court erred in interpreting § 876(c) to allow a trier of fact to consult the content of a mailed communication to determine whether it was addressed to a natural person.” Id. at *3 (emphasis added).

Held: “The term ‘person’ as used in § 876(c) refers exclusively to natural persons. To determine whether a threatening communication is ‘addressed to any other person,’ § 876(c), a court may consult the directions on the outside of the envelope, the salutation line, and the contents of the communication. Havelock’s writings were not addressed to natural persons. Accordingly, we reverse Havelock’s convictions and remand to the district court for the entry of a judgment of acquittal.” Id. at *10 (emphases added).

Of Note: Five judges join Judge B. Fletcher in full. We need six to win. So what is the “holding” of Havelock?

The individual holdings – that “persons” means a natural person, and that you can look inside an envelope to determine to whom it is “addressed” – are found within subsections of the opinion. See, e.g., Section II A at *5 (“person” means a “natural” person). Each of those sub-holdings garnered at least six votes, but, different judges cast the sixth vote for different subsections and holdings. (For example, Section II.A won Judges Schroeder and Reinhardt over, II.B convinced Judges Wardlaw, Fisher, and N.R. Smith). Because every subsection in the opinion earned a six-judge majority (albeit shifting majorities), all the holdings are controlling law. See generally United States v. Rodriguez-Preciado, 399 F.3d 1118, 1138 (9th Cir. 2005) (Berzon, J., dissenting) (providing good primer on plurality decisions); cf. Bradley v. Henry, 518 F.3d 657 (2008) (ord.) (adding note describing limits of five-judge plurality).

How to Use: In a pointed concurrence and dissent, Judge Reinhardt takes issue with the holding that permits a court to rummage within a mailing to locate to whom it is “addressed.” Id. at *18. Judge Reinhardt explains this holding is unnecessary, because Havelock’s “manifesto” didn’t contain a true “threat.” Id.

It is a thoughtful discussion of “threats” and free speech, building on last year’s great Bagdasarian decision. Id. at *19. (Notably, several judges join this “threats” analysis). The encroachment of “threat” laws on the First Amendment is a hot new issue: last month, Maryland District Judge Roger Titus issued a terrific decision finding 18 USC § 2261A(2)(A) – the interstate stalking statute – unconstitutional in a case involving Twitter posts. United States v. Cassidy, 2011 WL 6260872 (D. Md. Dec. 15, 2011). Judge Reinhardt’s opinion in Havelock deserves a close read as we begin new “threat” battles.

For Further Reading: In 1997 Mel Gibson portrayed an angry, paranoid, crazy loner in Conspiracy Theory. (A prescient role for the actor). The movie posits that secret assassins are conditioned by the CIA to obsess on Catcher in the Rye, to permit the agency to track them. See article here.
It turns out that several notorious real-life shooters liked the book. See article here.
So did Kurt Havelock. Havelock, 2012 WL 29347, *2.

Image of Mr. Kurt Havelock from http://www.miamiherald.com/2012/01/07/2578200/court-tosses-conviction-in-super.html
Image of "The Catcher in the Rye" from http://jonathanmendelsohn.blogspot.com/2011_07_01_archive.html

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

.

2012-01-06T15:35:00.000-08:00

U.S. v. Havelock, No. 08-10472 (1-6-12) (en banc).

Sitting en banc, the 9th holds that for a conviction under 18 U.S.C. 876, which is mailing a threat to a person, the addressee has to be a "person" - an individual or natural person. To show this, the contents of the communication can be considered. In this case, which involved a diatribe against American society and the evils presented, copies of which were sent to media outlets, an individual was not named. The diatribe was sent before Super Bowl XLII in Glendale, Arizona, and the defendant, after mailing the letters, went to the parking lot with several weapons with an intent to shoot. He did not. He had second thoughts, following these bad thoughts, called his family, and turned himself in. Because the threats were again not addressed to individuals, no threats were made. The convictions (one for each letter sent to a media outlet) were vacated and dismissed. (B. Fletcher wrote and was joined by Kozinski, Berzon, Callahan, and Ikuta). Concurring in the result, N. Smith would read the statute to include threats made to corporations and other entities. He however would reverse because the government failed to present sufficient evidence of specific intent. Concurring and dissenting, Reinhardt (joined by Wardlaw and Berzon in part and Schroeder in part), first would find no evidence of any threat, and second, dissents from the holding allowing a review of the contents. Concurring and dissenting, Wardlaw would hold that the defendant's communications were addressed to natural persons but that they were not threats. Dissenting, Fisher joined by Rawlinson, would find that threats were made to natural persons in the contents.

There is now a circuit split on this issue.

Congratulations to AFPD Dan Kaplan and Jeff Williams of the Arizona FPD Office (Phoenix) for the win.

2012-01-06T09:33:00.000-08:00

U.S. v. Russell, No. 11-30030 (1-5-11) (McKeown with Tashima and Tallman).

Some resolutions for the New Year for drug couriers so as not to become crotchety, and having to spend next new year, and many more, in custody: (1) do not buy a last minute, one-way ticket in cash from Seattle to Anchorage on Alaska Airlines; (2) do check luggage; (3) try not to be described as "a black male wearing a leather jacket and a large necklace"; and (4) do not consent to a search of person, twice, and especially by holding up your arms and spreading your legs. The consent to search of person is especially important, because, in this situation, police can search the outside of your clothes, including the groin area. Here, the defendant did all the above described, had a prior drug and firearms conviction, and was suspected in drug trafficking. Upon the pat down, the officer "lifted up to feel," and felt something "hard and unnatural" in the groin area. Seven hundred Oxycodone pills were found. Did such a consensual search become unreasonable by patting down the groin? The 9th considers whether a pat down including the groin is reasonable under a general search of person consent, and finds it was under these circumstances: the defendant gave consent, was not under arrest, could have left, cooperated, and the pat down followed standard procedure. Indeed, the 9th noted that the groin was a common place to hide drugs, and even cited the officer saying that 80% of the narcotics he finds are in the groin area (note 2....maybe that is where the officer most often looks?). The 9th finds support in the other circuits, that have upheld over-the-clothes pat down searches were reasonable under a general consent.

2012-01-03T08:41:00.000-08:00

U.S. v. Rodriguez-Ocampo, No. 10-50528 (12-30-11) (Per curiam with B. Fletcher, Silverman, and Wardlaw).

In a per curiam decision, the 9th vacates an erroneously enhanced 1325 sentence. The sentence was enhanced because the defendant had been removed previously from the United States subsequent to an aggravated felony. However, the original removal had been under a constitutionally infirm stipulated removal (made under a procedure without judicial review). As such, the removal could not be used to enhance. The government argued that the defendant had been physically removed, and that is what counted. The 9th disagreed, because the first removal had to be constitutional.

Case o' The Week: Gimme Shetler -- Post illegal-search statements

2012-01-01T14:59:00.000-08:00

The Ninth ended 2011 with a bang, with a pair of great suppression cases relating to statements. We'll turn primarily to Shetler and post illegal-search statements, but Valenzuela-Espinoza (discussed below) deserves a close read as well. United States v. Shetler, 2011 WL 6794021 (9th Cir. Dec. 28, 2011), decision available here.

Players: Decision by Judge Reinhardt (below left), joined by Judge Berzon and visiting District Judge Kennelly. Big win for Central District Ass’t Federal Defenders Victor Cannon, Liliana Coronado, and Ashwini Mate.

Facts: After Scott Shetler’s daughter snitched him out, cops searched his garage and found chemicals and gear related to cooking meth. Id. at *1. That search was legal.

The cops then seized Shetler, got his girlfriend to “consent” to a search of the house, searched his house and re-searched the garage. Id. at *1-*2. This second round of searches produced many more things used to make meth, including chemicals and flasks. Id. at *2. The detained Shetler watched this search from outside. Id. About five hours after being seized Shetler was Mirandized and confessed to making meth. Id. at *2.

The next day Shetler was Mirandized and interrogated twice more (in custody), expanding his confession each round. Id. The district court upheld the search of the garage, suppressed all evidence seized in the subsequent illegal searches, but permitted Shetler’s multiple confessions to come in at trial. Id. Shetler was convicted.

Issue(s): “Shetler argues . . . that the district court erred in denying his motion to suppress the statements regarding his drug activities that he made to a DEA agent on the night of his arrest outside his home and those he made during his interview at the DEA office 36 hours after his arrest.” Id. at *4. “The question . . . is whether the district court erred in finding that the statements made by Shetler at the DEA office were not sufficiently connected to the preceding illegal searches to constitute ‘fruit of the poisonous tree.’” Id.

Held: “The government did not bear its burden of showing that Shetler’s statements were not the product of illegal searches. Contrary to the district court’s determination, there is no evidence in the record to support the conclusion that the statements were ‘the product of the initial legal search of the garage . . . and were not tainted by the illegal searches of the garage.’” Id. at *5.

Of Note: The Shetler suppression holding gets the big defense buzz. The opinion, however, also gives us some first-impression interpretations of a federal drug statute here in the Ninth Circuit. Section 856(a)(1) of Title 21 criminalizes the “use” of a place with the purpose of manufacturing, distributing, or using drugs. Id. at *8. Shetler’s home drug lab was to make meth for his own use (he claimed): a crime outside of the “commercial” drug acts targeted by this crack-house law (he argued). Id.

Judge Reinhardt rejects this interpretation, but adds limitations to the statute to dodge Shetler’s constitutional challenge. Id. at *9 (restricting application of this statute in the context of residences, to offenses where drug manufacture, distribution, or use is a primary purpose).

It is an important decision – for us in NorCal, it is hard to read Shetler’s interpretation of the crack house statute without an uncomfortable thought for all those little private, home-use marijuana grows out amongst the redwoods.

How to Use: Regardless of any evidence from the illegal searches, agents probably had probable cause to (arrest) and question Shetler about his drug activities. If that’s true, what’s his beef with the use of his confessions?

Answering that question, Judge Reinhardt carefully explains the different analyses for confessions arising from illegal detentions, versus illegal searches. Id. at *5. One additional problem with statements after illegal searches is that interrogated suspects can be confronted with evidence that was illegally obtained. Id. Another unique problem with post-search interrogation (versus post-seizure), is that a suspect who knows that evidence has been seized will view silence as futile, and will confess. Id. at *6. It is a compelling, and common sense explanation of why post-search confessions deserve their own unique analysis.

Turn to Shetler when faced with a post-search confession, and bear in mind that post illegal-search confessions may be much more vulnerable than post illegal-seizure statements.

For Further Reading: An equally good case on the suppression of statements was delivered on the same day as Shetler: United States v. Valenzuela-Espinoza, 2011 WL 6794013 (9th Cir. Dec. 28, 2011), decision available here.

In Valenzuela-Espinoza, Judge Betty Fletcher refuses to let agents off the presentment hook when they elicit a confession eight hours after arrest, and don’t bring the suspect before a magistrate until the next day. Id. at *1-*2. It is an excellent decision on the McNabb-Mallory rule, and is a case that may prompt a shake-up for court arraignment policies in a Ninth Circuit district or two . . . .

Image of the Honorable Stephen Reinhardt from http://abovethelaw.com/stephen-reinhardt/ Image of the "Gimme Shelter" cover from http://www.steady130.com/wp-content/uploads/2011/05/gimmeshelter.jpg

Steven Kalar, Senior Litigator N.D. Cal FPD. Website at www.ndcalfpd.org

.
.

2011-12-29T10:47:00.000-08:00

Estrella v. Ollison, No. 10-56203 (12-29-11) (D. Nelson with Gould and Ikuta).

The petitioner argued that the state judge enhanced his sentence upon finding that he was on parole for a violent offense at the time of the instant offense. This violated Apprendi. The state courts said "no" because being on parole fit into the Apprendi prior conviction exception. The 9th disagreed, holding that parole terms can be modified or terminated by a court after sentence, and precedent in Butler recognized this for probation, which is analogous. There was error. Alas, for petitioner, the error was harmless. The 9th held that a jury would have easily found that the parole was for a violent offense. The 9th also concluded that the analysis included all the materials the court examined, including the probation report.

2011-12-28T14:00:00.000-08:00

U.S. v. Valenzuela-Espinoza, No. 10-10060 (12-28-11)(B. Fletcher with Reinhardt and Tashima).

"Because the delay in presenting the defendant to a magistrate was unreasonable, his statements made more than six hours after his arrest must be suppressed" under McNabb and Mallory. The defendant here was arrested during a drug bust of his house, where marijuana was stored and where guns were present. He was arrested around 11:15 A.M. but did not see a judge until the next day at 2:00 P.M., despite the fact that the court was ten miles away and the agents were "sitting" on the house to secure it. The district court reasoned that the agents were doing law enforcement activities and were within the six-hour safe harbor of McNabb. Moreover, paperwork had to be completed for the defendant to appear at the 2:00 P.M. Tucson magistrate court hearing. The 9th reversed and suppressed. The defendant could have been brought, and it was unreasonable to simply sit at the house to secure the scene and wait for the warrants. There were nine officers present. The internal agreement between the court and the prosecutor and law enforcement for paperwork to be done by 10:30 A.M. for a 2:00 P.M. hearing cannot trump what is reasonable and cannot trump the federal rules. Under McNabb and Mallory, the statements must be suppressed for unreasonable delay.

This decision has obvious implications for the Tucson court procedures regarding recent arrests in the vicinity.

U.S. v. Shetler, No. 10-50478 (12-28-11) (Reinhardt with Berzon and Kennelly, D.J.).

The prosecution did not carry its burden of showing that the defendant's statements were not the product of the concedely illegal search of his house and garage. The 9th reverses the denial of the suppression and remands. The defendant here was arrested when he came out of his garage. The police had probable cause to believe drug-making (meth) was afoot. They did a quick sweep of the garage, legally, and then held the defendant for five hours while they illegally searched his house and garage again. He was confronted with evidence and confessed later. The government conceded the subsequent searches were illegal. The 9th then examined whether the statements were a result of the illegal search. They were. The subsequent searches produced more specific evidence of meth dealing. Moreover, in a good overview of the analysis of the law pertaining to statements resulting from illegal searches, the 9th finds that being confronted withs specific evidence, and knowledge that the evidence was found, all supported connecting the statements to the result of the illegal search. There was still enough evidence for avoid a judgment of acquittal and so the case was remanded.

Congratulations to AFPDs Lilianna Coronado and Ashwim Shrikrishna Mate of the FPD Office of the Central District of California (Los Angeles).

2011-12-28T07:49:00.000-08:00

Parker v. Small, No. 10-17128 (12-27-11) (Per curiam with Wallace, Thomas, and Albritton, Sr. D.J.; concurrence by Thomas).

In a habeas case arising from a California state conviction, the 9th affirms the denial of a petition arguing that the extra instructions the state court gave to a deadlocked jury were coercive. The 9th's decision was under AEDPA 's deference standard, and the state courts' decision was not unreasonable and the state courts had examined the totality of circumstances and the context. The facts here, however, were still disconcerting. The state jury stated it was deadlocked several times (five times!) on a murder charge. The judge kept sending them back, even when a note said that one juror was holding out because he did not believe the prosecutor's witnesses. Finally, the court gave the state's version of an Allen charge, upheld in the state case of Moore. That instruction did the trick and a conviction was returned with a LWOP sentence. The 9th said that the state courts had looked at the context and found the instruction was not coercive. The decision must be given deference. In a concurrence, Thomas stresses that deference must be given but that it depends on the state courts examining all the circumstances and the context.

Case o' The Week: New Counsel? Post-Trial -- Beltran Valdez and Interlocutory Appeals of Motions for New Counsel

2011-12-26T09:03:00.000-08:00

After Booker, can the Chair of the Sentencing Commission make mandatory law? Can he make sure that district courts follow his guidance, with none of this newfangled "advisory" nonsense?

Sure -- just come out West and sit by designation in the Ninth. United States v. Beltran Valdez, 2011 WL 5839671 (9th Cir. Nov. 21, 2011), decision available here.

Players: Decision by Vt. District Judge William K. Sessions III (Chair of the United States Sentencing Commission) (right). See newsletter here.

Facts: Beltran Valdez was charged with illegal reentry and appointed counsel. Id. at *1. Relatively early in the case, he requested and was appointed new counsel. Id. at *1. Six months later, on the eve of trial, Beltran Valdez again requested appointment of another new attorney. Id. The district court denied that request, but allowed the defendant to represent himself with the CJA attorney remaining as advisory counsel. Id. Before the trial, Beltran Valdez filed a notice of appeal of his denial of a motion for new counsel. Id.

Issue(s): “The government moved to dismiss the appeal for lack of jurisdiction on the grounds that the order was not final, and does not satisfy the requirements of the collateral order doctrine.” Id. at *1. “In order to qualify for review under [the collateral order doctrine], an order ‘must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Id. “We have not addressed the issue of whether an order denying appointment of replacement counsel is immediately appealable.” Id. at *2.

Held: “[T]he order fails to satisfy the third element.” Id. at *2. “Post-conviction review of asserted Sixth Amendment deprivations such as denial of a right to represent oneself, denial of appointment of counsel, or denial of counsel’s request to be replaced because of a conflict of interest, is fully effective.” Id. “We join [the Second, Third, Fourth and Eight Circuits] and hold that the collateral order doctrine bars the immediate appeal of an order denying a request to appoint replacement counsel. Accordingly, we lack jurisdiction under the collateral order doctrine.” Id.

Of Note: When appellate jurisdiction is iffy, the defense Hail Mary is the petition for a writ of mandamus – a shot of getting in front of the Ninth when there are “sufficiently exceptional circumstances.” Id. at *1. See generally Kerr v. United States District Court, 426 U.S. 394 (1976), decision available here.

Mandamus was a popular gambit during the early Apprendi era, when we were challenging § 1326 indictments. In a promising sign in this case the Court directed the parties to brief whether it should construe the appeal as a petition for writ of mandamus. Id. at *1. Sadly, the panel’s interest was a tease: the Court ultimately “decline[d] to treat the appeal as a petition for mandamus.” Id. at *2.

How to Use: Beltran Valdez is a familiar scenario for any experienced CJA counsel who has tried to stand between a client and the buzz saw of trial on a hopeless case. Here, this § 1326 defendant was (trying) to get his third appointed attorney, and ultimately went pro se on the eve of trial. Id. at *1. The opinion isn’t a surprising result, from an institutional perspective: the Ninth is loathe the gum up the gears of justice with interlocutory appeals on the eve of trials.

From the defense perspective, however, it is a lousy rule: a defendant can only appeal a motion to fire counsel after getting hammered in a trial – with the higher sentence that results. That is a big price to pay to preserve a core Sixth Amendment issue. Bear Beltran Valdez in mind if chained to an unhappy client and forced together through a trial: make sure to make the record of the client’s dissatisfaction, because that Sixth Amendment issue can only be raised on direct appeal after the train wreck of a trial.

For Further Reading: Another chapter in the tragicomic “birther” saga closed last week, with Drake v. Obama, et al., 2011 WL 6415354 (9th Cir. Dec. 22, 2011). In Drake, Judge Pregerson wrote for the panel considering whether Obama was “constitutional ineligible to be President of the United States” because he was (allegedly) not born in Hawaii. Id. at *1. The district court denied the plaintiffs’ civil suit for lack of standing. Id. at *2.

Judge Pregerson and the panel affirmed, and adopted what appears to be a new rule in the process: candidates don’t have “competitive standing” to sue if their claim comes after the election. Id. at *6.

Will be interesting to see how the Drake "competitive standing" rule affects election litigation in the months leading up to Tuesday November 6, 2012 . . . .

Image of the Honorable William Sessions III from http://www.fcpablog.com/blog/tag/respondeat-superior?currentPage=4
President Obama's long-form birth certificate from http://www.whitehouse.gov/sites/default/files/rss_viewer/birth-certificate.pdf

Steven Kalar, Senior Litigator N.D. Cal FPD Website at www.ndcalfpd.org

.

Case o' The Week: Rudd and Residency Restrictions

2011-12-18T08:01:00.001-08:00

A slow week in the Ninth lets us reach back to a very good case on residency requirements as conditions of supervised release -- and the sentencing record needed to support such conditions. United States v. Rudd, 2011 WL 5865897 (9th Cir. Nov. 23, 2011), decision available here.

Players: Decision by Judge Wardlaw (left), joined by Judges Berzon and visiting ND Cal DJ Whyte.

Facts: Rudd, a USAID contractor, had sex with young boys in Bangladesh. Id. at *1. He pleaded guilty to a § 2423(c) count (illegal sexual conduct in foreign places). Id.

Rudd’s Rule 11(c)(1)(C) plea agreement let him appeal any special condition of supervised release. Id. One such condition, recommended by Probation, was that Rudd couldn’t reside within 2,000 feet of – essentially – any placed “used” by minors. Id. Rudd objected in his sentencing memo, but didn’t specifically object at sentencing. Id. The district court imposed the 2,000 feet restriction without elaborating on why the condition was necessary.” Id. at *2.

Issue(s): “[Rudd appeals the district court’s imposition of a residency restriction as a special condition of supervised release . . . .” Id. at *1.

Held: “Because the district court did not provide any explanation for its imposition of the 2,000 foot residency restriction, and none is apparent from the record, the district court committed procedural error. Thus, we vacate the special condition and remand to the district court to explain or reconsider the 2,000 foot residency restriction . . . Id. at *1. “A greater explanation of reasons is particularly necessary for procedural soundness where the district court is choosing among several sentencing options.” Id. at *4.

Of Note: This is a terrific opinion on “procedural reasonableness” at sentencing, and on residency restrictions. It is also, however, a welcome case on plain error review. Id. at *2. Note that Rudd didn’t specifically object at the sentencing hearing, regarding this specific condition. Judge Wardlaw stresses, however, that Rudd objected to Probation’s recommended conditions in his sentencing memo and argued for the conditions reflected in the plea agreement. He also specifically preserved his right to appeal conditions in his plea agreement. Id. Therefore, “it was both unnecessary and futile for Rudd to further object.” Id. Judge Wardlaw accordingly rejects the government’s plain error pitch, in an analysis that should worth adding to an appellate attorney’s quiver.

How to Use: The Court in Rudd is conspicuously skeptical of this (frankly unrealistic) residency restriction, though it doesn’t (yet) get to the “substantive reasonableness” of the condition. Id. at *5. As Judge Wardlaw cautions, “There remain significant questions regarding the substantive reasonableness of residency restrictions, including whether they too stringently restrict where a defendant can reside, or whether they play a role in increasing the likelihood of recidivism . . .” Id. at *6.

Indeed, “[s]everal courts have . . . found that similar residency restrictions subject defendant to a state of ‘constant eviction’ because the prohibited locations could potentially move or open in new places.” Id. at *6.

Yes, this is only dicta – but forceful dicta – and it merits heavy citation in sentencing memos.

For Further Reading: If you lie about your weight in your Facebook profile, have you committed a federal crime? Judge McKeown wants to know – and the government can’t give her a clear answer.

You’ll recall the regrettable Nosal 3-judge decision criminalized an employee’s unauthorized use of a computer. Blog on original decision here. Happily the case has gone en banc, and was argued on December 15.

It is a fascinating debate, where the judges wrestle with a troubling and expansive theory of criminal liability in the context of an old hacking statute. A video of the en banc argument is available here .

Nosal is a Big Deal for anyone who – well, frankly, for anyone who uses a computer at work. It has the good folks over at the Electronic Frontier Foundation properly riled up. See postings here. Fourth Amendment Guru Prof Kerr is equally spooked by the 3-judge opinion, and hopes the en banc court sides with Nosal. See blog here.

Image of the Honorable Kim Wardlaw from http://lawweb.usc.edu/news/article.cfm?newsID=3647

Image of the Honorable M. Margaret McKeown from http://www.wired.com/threatlevel/2011/08/warrantless-wiretapping-argument/

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

.

.

2011-12-12T13:29:00.000-08:00

Merolillo v. Yates, No. 08-56952 (12-12-11) (Navarro, D.J., with Schroeder and Gould).

The issue at trial was causation: did the trauma to the victim's head lead, in 30 days, to her death by aortic aneurysm. The pathologist said it did, at a preliminary hearing, but did not testify at trial (he was no longer employed by the county). His testimony was allowed in over a confrontation objection. All courts agreed that there was error -- the witness was not shown to be unavailable. The state courts found it to be harmless, as did the district court. The 9th reverses, and remands with instructions to grant the writ. There was clear error -- all courts agreed -- but the 9th found it to be prejudicial. The test for AEDPA prejudice, stressed the 9th, was laid by the Supremes in Fry v. Pliler, which held that Brecht is applied without regard to the state's harmlessness determination. That is the case here, where the testimony was prejudicial because it went to the crux of the case, it was given great weight, the testimony itself was confused, contradictory, and inconsistent, and the jury seemed to focus on it. It was also not cumulative, as the experts disagreed on the cause. The finding of prejudice also met the higher Chapman standard of harmless beyond a reasonable doubt.

Case o' The Week: Grant Deeds -- Rehabilitation, Custody, and Supervised Release, United States v. Grant

2011-12-10T16:29:00.001-08:00

"We make a child behave by telling him to go to his room, and we make an adult behave by telling him to go to his room, only his room has bars. Hopefully both the child and the adult will internalize a sense of wrongdoing attached to whatever conduct caused their confinement." United States v. Grant, 2011 WL 6016182, *5 (9th Cir. Dec. 5, 2011), decision available here.

Just don't give that BOP "time-out" to "rehabilitate" a defendant on supervised release. . . Id.

Players: Good decision by Judge Kleinfeld, joined by Judges Beezer and Graber.

Facts: Grant got a pretty good sentence for relatively minor bank fraud. Id. Mistakes were made, on supervised release: drug and alcohol dirties and some mental health issues earned Grant three months of custody and a (second) roughly five-year stint of supervised release. Id.

Another round of violations came several months after his second release, but Grant’s violation sentence was held in abeyance. Id.

A few months later Grant ran into his Probation Officer in a sushi bar. Grant denied drinking, but a waiter snitched him out and reported Grant had bought a large glass of sake (Grant also blew a dirty test for alcohol). Id. The defendant skipped his drug test the next day. Id. Back on another Form 12 with a violation guideline range of 3-9 months, the court departed upwards to 24 months of custody. Id. The district court explained that it felt “under the unique and rather unusual circumstances here that a variance from the guidelines is warranted because it is imperative that he receive a significant enough term of incarceration that he is able to actually receive meaningful treatment and also to . . . help him break his cycle of abuse of substances.” Id. at *2. “The court sentenced Grant to more time in prison than he otherwise would have, not only to protect society while Grant was in jail, but also to protect both society and Grant after his release. The judge’s express purpose was to improve Grant’s ability to deal with the drug and alcohol problems that contributed to his recurrent criminal conduct.” Id. at *3.

Issue(s): “We address whether rehabilitation can be considered for purposes of imposing imprisonment upon revocation of supervised release.” Id. at *1. “The question before us is whether Tapia is limited to imprisonment at initial sentencing, or if it extends to imprisonment on revocation of supervised release.” Id. at *3.

Held: “We conclude that Tapia applies to imprisonment regardless of whether imprisonment is imposed at initial sentencing or on revocation.” Id. at *3.

Of Note: Grant is an interesting opinion. It is an important defense win, and puts the Ninth on the right side of a growing circuit split on whether rehabilitation can be the basis for custody on a supervised release violation. Id. at *5.

Judge Kleinfeld, however, is clearly sensitive to what the district judge was trying to do in this case – a fair reading of the facts suggests that Mr. Grant does have some real some dual diagnosis needs (though Reentry Court would be a far better solution than the BOP).

Moreover, Judge Kleinfeld candidly observes that a district judge may thinking about rehabilitation when imposing a sentence – but instructs judges not to say that’s the reason for a custodial term. Id. at *5 (“When a judge imposes prison, he may wisely believe that it will have rehabilitative benefits, but those benefits cannot be the reason for imposing it.”) Grant is an potent little illustration of a big problem with appellate sentencing review: while the Ninth can try to instruct a district court what not to do at sentencing, there’s a danger that district judges often simply learn what not to say, when a court reporter is around.

How to Use: Give Grant to your favorite probation officer, who views a custodial sentence for supervised release violations as an “opportunity” for your client to “dry out” and “get on track.” After Tapia and Grant, those tired “for the good of the defendant” chestnuts are not valid bases for custody on a Form 12 violation.

For Further Reading: Imagine this: after the Ninth Circuit holds for the government on a sentencing appeal, the Supreme Court takes cert. and reverses, chiding the Ninth to cut the defendant a break.

(Hey, it can happen. Tapia v. United States, 131 S.Ct. 2382 (2011)).

Last week Judge Reinhardt took up the Tapia case on remand from the Supreme Court, in a very good opinion that finds plain error and sends the case back for resentencing. Tapia, 2011 WL 6091308 (9th Cir. Dec. 8, 2011).

Tapia II is a welcome decision for plain error review, and a big win for San Diego Deputy Federal Defenders Michelle Betancourt and Doug Keller.

Image of child in time out from http://worldradio.ch/wrs/programmes/kids/kids-in-mind-parenting-styles~print.shtml

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

.

2011-12-08T13:39:00.000-08:00

U.S. v. Tapia, No. 09-50248 (12-8-11) (Reinhardt with Schroeder and Hudson, D.J.).

The Supremes reversed and remanded the 9th in Tapia, 131 S. Ct 2382 (2011), holding that a district court could not consider a defendant's rehabilitative needs in imposing a sentence of imprisonment. The remand was to determine whether the consideration constituted "plain error." The 9th holds that it does constitute plain error, especially as the error may have increased the sentence. The sentencing court imposed a sentence that afforded enough time to complete the BOP drug program (RDAP). In looking at plain error, the focus is on "reasonable probability" rather than the higher "more likely than not" standard (20899). The statements here by the district court as to giving her a chance to deal with substance abuse meets the "reasonable probability" standard.

Congratulations to Federal Defenders Michelle Betancourt, Doug Keller, and James Fife, Federal Defenders of San Diego.

Johnson v. Finn, No. 10-15641 (12-8-11) (Reinhardt with B. Fletcher and Tashima).

The 9th reverses a denial of a Batson claim in a habeas petition, and remands for the district court to conduct an evidentiary hearing or accept the magistrate court's credibility determinations. The petitioners raised a Batson challenge in state proceedings. When it reached federal court, the magistrate court conducted an evidentiary hearing and determined that the prosecutor had discriminated. The court made lengthy credibility conclusions. The district court rejected the conclusions and denied the petition. The 9th held this was error, because there has to be credibility determinations in jury selection, especially in a Batson challenge, and so determining credibility is a matter of constitutional due process. The 9th also finds that AEDPA deference does not apply because the state court apparently used a wrong legal standard, citing a case that equated "reasonable inference" with ""strong likelihood." This was incorrect. "Reasonable inference" is a lower standard. The 9th also stresses that if AEDPA does not apply, because , for example, of a wrong legal standard, then the Pinholster bar to new evidence also falls. See note 1.

Congratulations to AFPD David Porter and FPD Dan Broderick of the ED Calif FPD Ofc (Sacramento).

2011-12-08T08:17:00.000-08:00

Gonzalez v. Wong, No. 08-99025 (12-7-11) (Clifton; partial concurrence and partial dissent by W. Fletcher; partial dissent by O'Scannlain).

This is a notable decision discussing Pinholster and what it means for newly discovered evidence. The petitioner was sentenced to death for the murder of a police officer attempting to search the petitioner's house. A jailhouse informant reported that the petitioner told him he was waiting for the officer so he could bag a cop. Here the new evidence was Brady impeachment of a key state witness - the jailhouse informant. The impeachment involved numerous prison mental health reports that concluded the witness was mentally ill and a liar. The state did not disclose this Brady evidence, and stonewalled its disclosure throughout the state appellate process. While the 9th concludes that Pinholster bars it's consideration of the new evidence in the Brady claim since review is limited to what was before the state court, it has to do something with this bombshell of new evidence. If it is considered a new claim, then exhaustion issues are raised. However, drawing upon Breyer's concurrence, the 9th concludes that it should remand the issue to the district court with instructions to stay and abey the habeas proceedings to allow the petitioner to present to state court his Brady claim with the subsequently disclosed materials. This allows the state court to channel the claim and take first crack at the new evidence. Once the state court has decided, then the petitioner can return to federal court. W. Fletcher concurs, but dissents as to the remand here because, under these facts, this court should decide. He argues this because of the state's stonewalling and efforts to hide the evidence and the state court's decision not to require disclosure leaves the issue to the federal courts. This is due to the specific facts here. O'Scannlain dissents, arguing that Pinholster bars any consideration by the federal court of the subsequent evidence. He believes that the evidence is not material and that the petitioner somehow delayed discovery.

2011-12-06T14:53:00.000-08:00

U.S. v. Grant, No. 10-10245 (12-5-11) (Kleinfeld with Beezer and Graber).

The Supreme Court in Tapia held that rehabilitation, and specifically an opportunity for rehabilitation, cannot be considered in imposing imprisonment at the initial sentencing. This falls outside of 3553. What about at supervised release revocation? This case considers whether Tapia applies to imposing imprisonment upon a supervised release revocation. The 9th holds that it does. Upon a SR revocation, a court cannot consider rehabilitation in imposing imprisonment. This case involves a defendant who had several chances on SR and kept violating for drug violations. One of the last instances involved the defendant encountering his supervising officer at a California sushi restaurant (!). The officer probably thought something was fishy and asked the defendant if he had been drinking. The defendant, for goodness sake, said he had not had a drink. On a tip, the waiter confirmed that the defendant had ordered a sake. The defendant then failed a breathalyzer test. A violation was filed. At the SR disposition hearing, the court said he needed 24 months to afford the defendant an extended chance at rehabilitation. This consideration, concluded the 9th, is contrary to Tapia and the Supreme Court analysis that rehabilitation is not part of the statutory imprisonment calculus. The 9th recognizes that this may be difficult for the court, but the court cannot consider what imprisonment will do for rehab prospects. This is a BOP concern. This decision adds to a circuit conflict between the 1st and 9th versus the 5th.

Case o' The Week: Ninth, En Banc, Gets its "Citations" Right -- Leal-Felix and Sentencing Guidelines

2011-12-03T09:01:00.000-08:00

Were you "arrested" when got that that (well-deserved) speeding citation south of Barstow, on your way to Vegas?

Judge N.R. Smith doesn't think so, either. United States v. Leal-Felix, 2011 WL 596602 (9th Cir. Nov. 30, 2011), decision available here.

Players: Big victory for CD Cal. Deputy Federal Public Defender Michael Tanaka. Decision by Judge N. Randy Smith (left).

Facts: Leal-Felix pleaded guilty to illegal reentry. Id. at *1. His criminal history reflected (among other things), two citations for driving with a suspended license, issued two days apart. Id. He had been sentenced for both citations on the same date, receiving concurrent sentences. Id.

Probation hit the defendant with Criminal History (“CH”) points for both of the citations. Id. Leal-Felix objected, arguing under USSG § 4A1.2(a)(2) that the two citations should get one set of points – they were both sentenced on the same day, and were not separated by an intervening arrest. Id. Instead, the events were separated by an intervening citation. The district court disagreed, both events were assigned CH points, Leal-Felix wound up in a higher category. Id. A three-judge panel affirmed, agreeing with the Seventh Circuit that a traffic citation was an “arrest” under the guideline. Id. at *1. The case went en banc.

Issue(s): “The definition of an ‘intervening arrest’ is the subject of our interpretation here. Under this Guideline, if a citation is equivalent to an arrest, then Leal–Felix's two citations for driving with a suspended license must be counted separately. Counting each citation as an arrest, and adding two points for each, would place him in criminal history category VI, with a Guidelines range of 21–27 months. However, if a citation is not an intervening arrest, his citations would be counted together and he would be included in criminal history category V, with a Guidelines range of 18–24 months.” Id. at *2.

Held: “In Sentencing Guidelines § 4A1.2(a)(2), we interpret the term ‘arrest’ to require that the individual be formally arrested; the mere issuance of a citation, even if considered an arrest under state law, is insufficient. Therefore, we vacate the sentence imposed by the district court and remand for resentencing.” Id. at *1.

Of Note: In a well-written opinion Judge NR Smith carefully explains the obvious – a “citation” is not an “arrest.” Interestingly, a considerable chunk of his analysis relies on the interpretation of “arrest” in the Fourth Amendment context. Id. at *4-*5. The sole dissenter, Judge Rawlinson, is unpersuaded: in her view, the majority decision “improperly imports Fourth Amendment analysis into calculation of a sentence under the Sentencing Guidelines . . . .” Id. at *7.

Meanwhile, in an entertaining concurrence, Judge McKeown highlights “the most compelling reason” to conclude that a citation isn’t an “arrest:” common sense. Id. at *6. Someone who got a traffic ticket for speeding isn’t going to disclose that they were “arrested” when applying for a job, or filling out a college application, or completing adoption papers. Id.

How to Use: This case is good news for folks on the cusp of a criminal history category; it may mean one bump down in the CH category, and in this case it saved Leal-Felix three months on the low-end range. This is great news, however, for Safety Valve candidates. Recall that Safety Valve is that precious opportunity to get below a mandatory-minimum drug sentence, if a defendant has – among other things – no more than one Criminal History point. See generally USSG § 5C1.2(a)(1). Before Leal-Felix, the following criminal history would have precluded Safety Valve eligibility:

* Traffic stop and release,

* Then second traffic citation,

* Then later resolution of both offenses in one joint concurrent sentence

_________

= 2 CH points.

After Leal-Felix, under the same scenario the defendant would have 1 point, and would still eligible for Safety Valve. Bear Leal-Felix in mind for drug defendants with minor criminal histories; the case should broaden the reach of Safety Valve eligibility.

For Further Reading: Chief Deputy Fed. Public Defender Steve “Rule of Lenity” Sady is happy. Sady has been a tenacious advocate for this rule of construction, which instructs that an ambiguous term in a statute, or guideline, should be interpreted in favor of the defense. Judge N.R. Smith caps off his (correct) statutory analysis in Leal-Felix with the (correct) observation that the Rule of Lenity also requires that the guideline’s use of the term “arrest” excludes “citations.” Id. at *5.

For a survey of the Ninth’s use (and abuse) of the Rule of Lenity, visit the collection of blog entries here.

Image of the Honorable N. Randy Smith from http://isuvoice.com/wp-content/uploads/2011/09/SmithRandy2x3.jpg Image of CHP traffic citation from http://www.ocregister.com/news/drivers-297537-percent-cell.html

Steven Kalar, Senior Litigator N.D. Cal FPD. Website at www.ndcalfpd.org

.

2011-11-30T13:12:00.000-08:00

U.S. v. Leal-Felix, No. 09-50426 (11-30-11) (en banc: N. Smith writes majority; McKeown writes concurrence; Rawlison dissents).

Sitting en banc, the 9th holds that a citation is not an intervening arrest for Guideline criminal history purposes. The defendant had two citations, issued at different times, and he was sentenced on both at the same time. The district court considered the issuance of a citation subsequent to another to be an intervening arrest (as some state laws and precedents define it). The 9th disagreed. The 9th holds that a citation does not rise to an arrest level for purposes of defining an intervening arrest. "[W]e interpret the term 'arrest' to require that the individual be formally arrested; the mere issuance of a citation, even if considered an arrest under state law, is insufficient." (20500). The Commission has not defined "intervening arrest" a citation as an arrest. An analysis of what is an arrest, drawing from Fourth Amendment precedents, does not cover a citation. A contrary approach is the Seventh Circuit, but it relies upon precedent that is questionable, misread, or inapposite. The 9th's approach finds support in the Supreme Court's definitions of arrest, and the over-all approach of the Guidelines. Here, the defendant was never told he was "under arrest" for driving with a suspended license, he was not transported to a police station, nor booked into a jail. These are formal arrests hallmarks that are missing here. Concurring, McKeown (joined by Kozinski, Graber, and Wardlaw) highlights the common understanding of what an arrest is. The concurrence has practical pragmatic reasons, some amusing (related to applications for jobs, colleges, and so forth). as to why citations are different from arrests. Rawlinson dissents, arguing that Fourth Amendment jurisprudence should not be imported to sentencing jurisprudence, and that we should not conflict with the Seventh Amendment. Rawlinson believes that treating citations as a "non-event" undermines the recidivism considerations of the Guidelines and understates the criminal history.

Case o' The Week: Ninth Breaks "One-Way Ratchet" - Tadio, Rule 35(b), and Sentencing

2011-11-26T15:57:00.001-08:00

What could be more unfair than a "one-way ratchet": a rule that allows factors which aggravate -- but do not mitigate -- a defendant's sentence?

Fortunately, Judge William Fletcher doesn't buy it, either. United States v. Tadio, 2011 WL 5839660 (9th Cir. Nov. 21, 2011), decision available here.

(Ed. Note: Westlaw has glitched its star cites in the WL version - apologies for missing pin citations).

Players: Welcome decision with new Ninth rule by Judge W. Fletcher (left).

Facts: Tadio pled guilty to threatening a federal witness in a murder case. Cooperation before sentencing earned him a 33-month break. He continued to cooperate after sentencing, with trial testimony that lead to criminal convictions.

To reward Tadio, the government moved under Rule 35(b) for an additional 24 month reduction. Tadio countered and asked for 48 more months off. The district court went with the government’s recommendation, given “the circumstances of Defendant’s criminal conduct, and Defendant’s prior criminal history.” Over defense objection, the court held that non-Rule 35 facts “were relevant factors that may be weighed when considering a Rule 35(b) motion.” Tadio appealed, arguing only Rule 35(b) should be considered.

Issue(s): “Federal Rule of Criminal Procedure 35(b) authorizes a district court, on the government’s motion, to reduce a defendant's sentence ‘if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.’ The question in this case is whether a district court may consider factors other than a defendant’s substantial assistance in determining the amount of a Rule 35(b) sentence reduction.”

Held: “We hold that once a district court determines that a defendant has provided substantial assistance to the government, the court may consider factors other than assistance, including those listed in . . . § 3553(a), in order to ensure that the sentence ultimately imposed accords with the purposes of sentencing that Congress has articulated . . . . The sentence imposed must be related to the degree of assistance rendered, but a district court may consider non-assistance factors in awarding a reduction, whether that reduction is greater than, less than, or equal to the reduction that a defendant’s assistance, considered alone, would warrant.”

Of Note: Mr. Tadio’s loss is our gain. The Eleventh and Seventh Circuits have considered this issue, and held that non-Rule 35(b) factors were a “one way rachet” – they could mean a higher sentence, butcouldn’t let a court go down beyond the government’s recommendation. Judge W. Fletcher calls out the injustice (and illogic) of that view, and adopts a good new rule for the Ninth: “[W]e agree with those courts that allow the district court to consider the full range of factors referenced in § 3553(a) when determining the amount to reduce a sentence under a Rule 35(b) motion. However, unlike courts that have held that non-assistance factors operate as a one-way ratchet, we see no basis for that limitation. Instead, we adopt a symmetrical rule, under which the district court may consider the non-assistance factors listed in § 3553(a) when determining how much to reduce a defendant’s sentence, irrespective of the direction in which those factors cut.” (emphasis added).

How to Use: What, realistically, more can a cooperator hope to gain on a second sentencing under this new rule? Well, thanks to a terrific Sotomayor decision, post-offense rehabilitation is now fair game for the court’s consideration on a second sentencing. See Pepper v. United States, 131 S.Ct. 1229 (2011).

Interestingly, Judge W. Fletcher spices Tadio with Pepper, relying on the Supreme Court case to rebut a number of the government’s arguments. For a full paean to Pepper, and more tips on how to use the case, see Champion article here.

For Further Reading: The Stevens case in Alaska has been a jaw-dropping revelation of Brady abuses by the federal government. A remarkable new order provides a glimpse of the secret report of the scandal. Turns out that prosecutors aren’t being referred for criminal contempt prosecution, because the district court never issued a “a ‘clear and unequivocal'order directing the attorneys to follow the law.” (?!?!) So here’s an absurd but apparently necessary practice tip: start cases by moving for a clear order that AUSAs are to “follow the law.”

For presiding Judge Sullivan’s (above right) – pointed – views on these latest developments, see his order here.

Image of the Honorable William Fletcher from http://www.law.gonzaga.edu/news-and-events/Files/quackenbush/fletcher.jpg Image of the Honorable Judge Emmet Sullivan from http://www.dcd.uscourts.gov/dcd/sullivan Image of ratchet from http://s7.sears.com/is/image/Sears/00944977000-1

Steven Kalar, Senior Litigator N.D. Cal. Website at www.ndcalfpd.org

.
.

2011-11-23T14:01:00.000-08:00

U.S. v. Rudd, No. 10-50254 (11-23-11) (Wardlaw with Berzon and Whyte, D.J.).

The defendant pled to traveling to a foreign country to engage in illicit sexual conduct in violation of 18 U.S.C. 2423(c). He agreed to a special condition of not residing within direct view of places (listed) where persons under the age of 18 frequent. At sentencing, the court imposed a more restrictive condition, stating that he could not reside within 2000 feet of such places. This "special" special condition was appealed. The 9th held that the court committed procedural error by failing to articulate or explain why 2000 feet was necessary. The usual special condition of not having a room with a view seemed to serve the purpose shielding the defendant from temptation. Indeed, a survey of other states and districts reveal that a "view" condition was widely accepted; while even a 1000 foot condition caused some concern as creating a ban on residency. The 9th did not address the substantial reasonableness of 2000 feet given the procedural error. The sentence is vacated and remanded for resentencing.

Congratulations to AFPD Jonathan Libby of the FPD Office of CD Calif (Los Angeles).

Three Questions From Justice Kennedy

2011-11-22T18:13:00.000-08:00

In each of three recent Supreme Court arguments, Justice Kennedy’s participation in argument distilled constitutional interests that support protection of individual rights. Whether the analyses reflected in the questions appear in the ultimate opinions remains to be seen. But Justice Kennedy’s thinking provides instruction for our approaches to the prosecution’s obligation to disclose exculpatory evidence, to the analysis of Sixth Amendment issues in the context of plea bargaining and sentencing, and to the future of privacy and technologically enhanced surveillance.

Smith v. Cain

In Smith, the New Orleans district attorney's office claimed there was no violation of the Brady obligation to produce exculpatory evidence. In a murder prosecution involving a single eyewitness, the prosecutor failed to provide the defense with several reports of pretrial statements in which the witness asserted he could not identify the shooters. As a consequence, the witness positively identified Mr. Smith at trial free from impeachment with his prior inconsistent statements. Before the Supreme Court, the New Orleans district attorney's office claimed that, although production would have been the better practice, there was no violation of Brady.

The Court heard this argument in the context of last Term's 5-4 reversal of a $14 million judgment against the New Orleans district attorney who, while withholding exculpatory evidence, sent an innocent man to death row (Connick v. Thompson). The Connick dissenters, led by Justice Ginsburg, had apparently not forgotten that the reversal was based on the district attorney’s claim that the Brady violation was an isolated incident, asking hard questions regarding the obviously exculpatory statements. But Justice Kennedy's observation separated the violation of the constitutional obligation and the availability of a remedy:

“[W]ith all respect, I think you misspoke when you -- when you were asked what is -- what is the test for when Brady material must be turned over. And you said whether or not there is a reasonable probability -- reasonable likelihood; pardon me -- a reasonable probability that the result would have been different. That's the test for when there has been a Brady violation. You don't determine your Brady obligation by the test of a Brady violation. You're transposing two very different things. And so that's incorrect.”

Smith Transcript at 48. One of the greatest frustrations in litigating Brady issues is the routine conflation of the pretrial obligation to produce exculpatory material with the post-trial consequences that flow from its concealment. Justice Kennedy demonstrated that the pretrial constitutional obligation to produce exculpatory material must not be diluted by the standard for deciding whether a violation of the constitutional obligation requires reversal.

Lafler v.Cooper

The second question from Justice Kennedy similarly focused on the distinction between a constitutional right and the remedy for a violation of that right. The Supreme Court considered two cases involving the application of the Sixth Amendment to attorney ineffectiveness during plea negotiations: in Missouri v. Frye, defense counsel failed to communicate an offer which, if accepted, would have reduced the exposure for a driving offense; in Laffler v. Cooper, the attorney incorrectly advised the defendant he could go to trial without risk on assault with intent to kill, which resulted in a much greater sentence (and no meaningful defense at trial). Both these cases looked fairly simple because, after Padilla, the guilty plea is clearly a critical stage of the prosecution at which the Sixth Amendment right to counsel applies. In both Frye and Laffler, the State admitted incompetence of counsel; on the prejudice question, the Supreme Court had previously held in Glover that even a day of additional incarceration from ineffective assistance of counsel during non-capital sentencing constitutes prejudice.

At the outset of the Lafler argument, Justice Kennedy appeared to be clearing the underbrush of what seemed obvious prejudice – exposure to greater prison time without correct advice – as opposed to remedies such as recision of the guilty plea and specific performance of the plea offer, asking:

“We can think about adjudication as having a constitutional violation, injury, and remedy. Are you saying that there was a violation in the abstract here but no injury, or was there a violation and an injury but just no remedy?”

Lafler Transcript at 5. The conversation in both cases never seemed to return to this simple analysis, which would appear to provide a basis for resolution of the difficult hypotheticals posed by various Justices. If the prisoner establishes that the plea offer would have been accepted, the prejudice element should be established under Hill with a “reasonable probability” of a different result. Given that Justice Kennedy wrote Glover, stating that “our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance,” he will likely be focusing on remedy rather than prejudice. Justice Kagan also appeared to have had Glover on her mind when she repeatedly referenced the prejudice from a single day of additional incarceration due to ineffective assistance of counsel.

The remedy question should be decided based on the principles of equity. Justice Kennedy authored the landmark Guantánamo opinion in Boumediene, which included the quotation from Schlup that habeas “is, at its core, an equitable remedy.” Similarly, the federal habeas statute incorporates principles of equity in directing courts to dispose of cases as “law and justice require.” 28 U.S.C. § 2243.In plea bargaining, if there is Sixth Amendment incompetence and prejudice, the remedy should be relatively simple. As the Santobello decision recognized, specific performance is available where one prosecutor failed to perform on another prosecutor’s plea agreement. In the same way, the equitable remedy would require the parties to be returned to the status quo ante for performance of the agreement that was thwarted by defense counsel’s ineffectiveness.

Jones v. United States

In an epic Fourth Amendment case, the Court heard argument in Jones regarding the privacy rights implicated when police use global positioning devices to effect extended round-the-clock surveillance of a citizen's car. Early in the argument, Justice Kennedy framed factors that are likely to be outcome-determinative by asking:

“Well, under that rationale [that there is no privacy in anything exposed to public view], could you put a beeper surreptitiously on the man’s overcoat or sports coat?”

Jones Transcript at 5. The question reflects concerns that permeated the rest of the argument: the intrusion from the initial placement of the device; the lack of a clear line of demarcation between surveillance and intrusion into traditionally protected areas; and the Orwellian consequences of leaving unregulated by the Fourth Amendment practices that apply to Justices as well as suspected criminals.

For those following the evolution of privacy and technology (as blogged here), the full argument is well worth the read. Across the political spectrum, the Justices seemed to have misgivings about having our country take a decisive step toward 1984 on their watch. At the same time, the government used the Court's prior steps in that direction to say that 24/7 surveillance is no big deal: after all, the Court has found no constitutional objections to the police going through citizens' trash, recording the length and destination of telephone calls through pen registers, and trespassing on property not in the curtilage, then making observations from the open fields. The non-consensual planting of the global positioning device probably provides for a narrow decision in which the defendant prevails, but the Court is clearly looking ahead to the time when technology makes such a trespass unnecessary.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

2011-11-22T12:05:00.000-08:00

U.S. v. Tado, No. 10-10144 (11-21-11) (W. Fletcher with Tashima and Berzon).

A defendant cooperates after sentencing, and the government moves for a Rule 35 reduction. In fashioning a sentence, does the court only look at the substantial assistance or at all the 3553(a) sentencing factors? Here, the defendant argued, after cooperating and testifying at various trials against former confederates, that the court should only look at his cooperation, and not at his lengthy criminal history or own involvement. The 9th sensibly held that first (1) a Rule 35 sentence requires the court to find that substantial assistance did in fact occur; but then (2) the court considers non-assistance 3553 factors. This can result in a sentence lesser, greater, or the same as if only the cooperation was considered. Although the defendant here lost his appeal, the principle established will help more than it hurts other defendants. Rule 35 is "Peppered" (after the Supreme Court case upholding consideration of post-sentence rehabilitation in a resentencing).

U.S. v. Beltran Valdez, No. 11-50117 (11-21-11) (Sessions, D.J., with Leavy and Wardlaw).

As trial approached, the court denied defendant's request for appointment of replacement counsel or to represent himself. He immediately sought appellate review. Interestingly, the 9th had never considered whether this could be an interlocutory appeal. The 2nd, 3rd, 4th and 8th had, and all held that the appellate court lacked jurisdiction. The issue could be reviewed after trial or conviction. The 9th fell in line, and found no jurisdiction. The defendant could not appeal a denial of his request for change of counsel.

2011-11-21T16:12:00.000-08:00

Ortiz v. Uribe, No. 09-55264 (11-18-11) (Alarcon with O'Scannlain and Silverman).

The murder suspect, after waiving his Miranda rights, was ushered into an office in the sheriff's department, where he met a seemingly kind, motherly, and oh so empathetic polygraph examiner. They talked of many things, including nervousness, doing what was proper for the family, and the need for his version as opposed to only the co-defendant's. Lo and behold, there was no need for the polygraph after all, since he confessed to the shooting. The kindly examiner? A deputy sheriff. The petitioner challenged his confession, arguing that he was tricked, and his will overborne. No so, said the state courts; not so, said the district court; and the 9th affirmed the "not so," holding that the petitioner's will was not overborne; he was not forced to confession by moral overpowering; and that the tactics were acceptable. Oh yes, because of AEDPA, the state court's findings were to be given deference.

Case o' The Week: Mommy & Miranda - Ortiz, the Fifth Amendment, and Confessions

2011-11-19T14:24:00.000-08:00

What could be more heartwarming than a maternal cop who assures a nervous young defendant that she "loves him," tells him that he reminds her of her own kids, warmly refers to him as a "young puppy," and assures him that she wants to hug him?

(Oh - did we mention that she also misleads him about being a cop while preparing him for a polygraph, and then elicits a murder confession that leads to his conviction?) Ortiz v. Uribe, 2011 WL 5607625 (9th Cir. Nov. 18, 2011), decision available here.

Players: Decision by Judge Alarcón.

Facts: Suspected of a homicide, eighteen-year old Ortiz voluntarily went to the sheriff’s for questioning. Id. at *1, *2. He waived his Miranda rights. Id. at *1. To support his claim of innocence Ortiz agreed to a polygraph. Id.

Detective Kathy Cardwell conducted the examination – but didn’t reveal to Ortiz that she was a sheriff. Id. When he admitted that he was nervous, Cardwell assured him she would help him get through. Id. Before the exam, she called Ortiz, “young puppy,” and “poor guy.” She compared Ortez to her own sons, “told him that she loved him, and offered him a hug.” Id. (emphasis added). She informed Ortiz that the “cops” couldn’t dictate the questions to her (not revealing that she was a cop,) and assured him “They [the cops] can’t have any say so in here, this is my world.” Id. “[D]o the right thing by [your] mom,” she urged, and by your “daughters and lady.” Id. After these instructions, and before the exam started, Ortiz confessed to the shooting. Id. at *2.

He was convicted in state court of, among other things, murder. The California appellate and Supreme Court denied his challenges to the use of his statements in trial, id., and the federal district court denied his habeas petition. Id. at *3.

Issue(s): “The question before this court is whether the California Court of Appeal’s decision was contrary to, or involved an unreasonable application of, clearly established Supreme Court law, or whether the court’s decision was based on an unreasonable determination of the facts in light of the evidence presented when the court determined that Ortiz’s will was not overborne when he confessed, based on the totality of the circumstances, including Ortiz’s claim that Detective Cardwell played a maternal role during the interview, concealed her identity as a police officer, allegedly made implicit promises that Ortiz would be given leniency, and appealed to his moral obligation to his family. Ortiz argues that his confession was involuntary because his will was overborne as a result of deceptive interrogation tactics.” Id. at *4.

Held: “[A] polygrapher’s empathic and parental questioning does not render a confession involuntary. We are persuaded that the undisputed evidence reflected in the record of the state trial court’s proceedings demonstrates that Detective Cardwell’s advice to Ortiz that he had to tell the truth to pass a polygraph examination, was not coercive. The California Court of Appeal’s conclusion that Detective Cardwell’s motherly or parental tone in preparing Ortiz for a polygraph examination did not violate Ortiz’s Fifth Amendment rights was not contrary to, and did not involve an unreasonable application of, clearly established Supreme Court law, and was not based on an unreasonable determination of the facts in light of the evidence presented.” Id. at *6.

Of Note: There’s little silver lining, in this dark cloud. Beyond its tolerance for an -- unusual -- interrogation technique (remember, Ortiz was just 18), the opinion isn’t bothered by the fact that Detective Caldwell ‘concealed the fact that she was a sworn officer and misled appellant into believing that she was not a police officer and that she was his ally rather than his adversary.” Id. at *6. “[T]his type of ‘deception,’” reassures Judge Alarcón, “is well within the range of permissible interrogation tactics necessary to secure a lawful confession by the police.” Id. at *6.

How to Use: Ortiz is a habeas case, and the Ninth is working under the extraordinarily deferential standards of AEDPA. It is conceivable that on a direct challenge, the facts of Ortiz could violate the Fifth – yet not rise to the level of AEDPA error. Hammer that distinction: the more Ortiz is confined to habeas law, the better.

For Further Reading: “[T]he current system of criminal law and enforcement (like too many of our citizens) has grown obese.” So observes Justice Stevens, in a fascinating N.Y.T. book review on our “Broken System of Criminal Justice,” available here.

"My Mom is a Deputy Sheriff" from http://images7.cafepress.com/image/28626857_125x125.png

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

.

Second Chance Act Update

2011-11-18T13:29:00.000-08:00

When Congress doubled the available pre-release community confinement in the Second Chance Act, federal defenders hoped to see significant easing of reentry, with earlier family reunification and community-based employment and treatment. These hopes have come to very little because the BOP has continued to follow informal rules that effectively limit pre-release community confinement to six months, rather than the twelve months now permitted under 18 U.S.C. § 3624(c). Because an Oregon judge struck down its first SCA regulation for violation of the Administrative Procedure Act, the BOP has submitted for comment the same regulation, again failing to put into effect the meaningful change called for by the statute. Linked here is the Federal Public and Community Defenders' comment calling for the BOP to follow the letter and the spirit of the pre-release community confinement provisions of the SCA. Comments are due by November 21, 2011.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Ceballos: Isn’t There A Right To A Ruling On A Sentencing Request Under Rule 32 And Due Process?

2011-11-15T17:34:00.000-08:00

In the recent case of Ceballos, the Ninth Circuit appears to have degraded sentencing rights without considering its own precedents that protect those rights. Mr. Ceballos’s sentencing letter included a request for a judicial recommendation for designation to a facility close to his family, a recommendation that the designation statute – 18 U.S.C. § 3621(b) – requires the Bureau of Prisons to consider. Rule 32(i)(3)(B) requires that the sentencing court shall, for “any disputed portion of the pre-sentence report or other controverted matter,” rule on the question or determine that a ruling is unnecessary, a rule that requires “strict compliance” (Fernandez-Angulo, 897 F.3d at 1516; accord Houston, 217 F.3d at 1208). The sentencing judge simply did not rule on Mr. Ceballos’s request; then eight days later, the government and the defense jointly agreed the judgment should be amended to include the recommendation. The district judge, acting as if he had no discretion in the matter, denied the request: “It is the Bureau of Prisons’ responsibility for the housing of prison inmates. Mr. Ceballos should request his housing from the Bureau of Prisons.” And the Panel affirmed this non sequitur, claiming no jurisdiction to review.

This case needs a second look. Where the sentencing judge failed to rule initially on the designation request, the sentencing court should have jurisdiction under Rule 35 to correct “clear error.” Under both Rule 32 and due process, the failure to rule on a request for a judicial recommendation was erroneous. Mr. Ceballos unquestionably alerted the sentencing judge to his desire that the court make a ruling on his request, which § 3621(b) makes a relevant factor at sentencing. As the Ninth Circuit has stated, supported by Supreme Court authority, “The existence of discretion requires its exercise” (Miller, 722 F.2d at 565). Or as the Supreme Court said in Koon regarding sentencing discretion, “A district court by definition abuses its discretion when it makes an error of law” (518 U.S. at 100). Here, the sentencing judge failed to exercise discretion that Mr. Ceballos invoked. What could be easier or fairer than agreeing with the parties to correct the error by amending the judgment? Especially where, as a prior panel held in Rodriguez, the BOP is required to consider the factors enumerated in § 3621(b), including the recommendation of the sentencing judge, in determining the appropriate correctional facility.

The Ceballos opinion purports to be the first Ninth Circuit precedential opinion on § 3621(b) recommendations, although the Reynolds opinion addressed post-sentencing nunc pro tunc designations to achieve concurrent sentences. In finding that recommendations are not reviewable, the Panel relied on a series of out-of-circuit opinions involving actual court recommendations, which were made during sentencing hearings, that were supported by the record. In contrast, the Ceballos case involved a complete failure to rule. The other circuits’ holdings that the recommendations themselves did not present reviewable questions are far different from the complete failure to rule in Ceballos. In a final footnote, the Ceballos opinion stated that district courts have the authority “to make (or not make) non-binding recommendations to the Bureau of Prisons at any time – including but not limited to – during the sentencing colloquy.” However, the sentencing court does not have the option to fail to rule on a request for a recommendation, absent the findings required under Rule 32(i)(3)(B), especially where the prejudice from the lack of a recommendation can immediately affect the BOP’s initial placement of the prisoner.

Basic sentencing rules should require a decision on the merits. By allowing courts to ignore recommendation requests, the Panel trivialized the statutory instructions to the BOP in § 3621(b) and undermined sentencing advocacy regarding recommendations that, as described in our recent Guide to BOP advocacy available here, provide important means for ameliorating otherwise overly harsh sentencing. A ruling on the statutorily-based recommendation regarding designation is not optional. The judge must exercise discretion either for or against the request. If a recommendation is rejected on the merits, the sentencing judge should state simply why the recommendation was denied. An improper motive would certainly justify reversal, such as race or dislike for the defendant’s haircut. How about if – as it appears in Mr. Ceballos’s case – the judge does not believe the authority exists to make a recommendation? As the Supreme Court held in Rita, the sentencing court needs to provide a minimum amount of information to enable the reviewing court to determine that sentencing discretion was properly exercised (551 U.S. at 356-57). Where there is jurisdiction under 18 U.S.C. § 3742 to review a sentence “in violation of law” under Rule 32 or Rule 35 or the due process clause, a ruling on the merits with a minimal explanation is not asking too much.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Case o' The Week: Paez, Ikuta and the Chism Chasm - Fourth Amendment and Child Porn

2011-11-13T10:13:00.001-08:00

Proposition: Intellectual honesty and vigorous application of Fourth Amendment principles is particularly important in child pornography cases. Because of the great stigma of these charges, illegal arrests and searches of innocent folks can wreak unique havoc on careers and lives.

Proposition Exhibit A: Todd Chism (left). Chism v. Washington State, 2011 WL 5304125 (9th Cir. Nov. 7, 2011) (Amend. & Ord. Denying Rehearing en banc), decision available here.

Players: Thoughtful decision by Judge Paez, joined by Judge B. Fletcher. Dissent by Judge Ikuta.

Facts: [Ed. Note: Legally irrelevant to this decision, but important in equity: these plaintiffs, Todd and Nicole Chism, were actually innocent of any of the child porn offenses discussed below. See article here.]

The Chisms, a married couple, appeal from an adverse summary judgment in a federal civil rights suit. The case started with tips to Washington cops reporting that child porn was uploaded onto two Yahoo! websites. Id. at *1. When cops traced the user information for the sites they found the first site was billed to “Mr. Nicole Chism,” with the registration address and billing information matched that of the Chisms. Id. The second site was billed to Mr. Nicole Chism, with no physical location but a credit card that traced back to the Chisms.

When the cops traced the IP addresses used to create the websites, they lead to other people not associated with the Chisms. Id. at *3. [It later turned out that the Chisms’ identities and credit cards had likely been hacked]. Id. at *9 fn. 13.

The cops got a search warrant, and in the affidavit (falsely) represented that Todd Chism had downloaded images: he hadn’t. Id. at *5. The affidavit also (falsely) represented that the Chisms’ credit card had been used to purchase child porn from the websites: it hadn’t. Id.

The affidavit omitted the fact that the IP addresses used to open the Yahoo! accounts were traced to people and residences other than the Chisms. Id. The searches (including a search of Todd Chism’s workplace) revealed nothing and the Chisms were never charged. Id. at *4.

Issue(s): “The Chisms argue that the officers violated their Fourth Amendment rights through judicial deception.” Id. at *5.

Held: “We are mindful that a letter-perfect affidavit is not essential. In this case, however, we do not believe that a reasonable magistrate judge would have issued the search warrant if she had been apprised of an accurate version of the evidence. We therefore hold that the affidavit’s false statements and omissions were material to the probable cause determination for the search warrants.” Id. at *9 (quotations and citation omitted). “[W]e reverse the district court's grant of summary judgment to the officers.” Id. at *11.

Of Note: Judge Ikuta’s pointed dissent helpfully points us to the valuable lessons of Judge Paez’s great decision. Id. at *11 (Ikuta, J., dissenting). As her dissent highlights, Chism is an important decision for Fourth Amendment in the context of child porn because it works through and distinguishes Gourde (that most-regrettable 2006 en banc decision). Id. at *8. See blog discussion of Gourde here. Fourth challenges in child porn cases will now be battles between Gourde and Chism – with Chism the defense touchstone.

How to Use: There are many important Chism principles for future Fourth fights. One of the most important is this: it is a material omission undermining a search warrant application if cops do not disclose that an IP address associated with child porn images is not associated with the physical address to be searched. Id. at *9. Put differently, if an IP address is associated with a physical address different than the physical address to be searched, that fact undermines probable cause and must be disclosed. Id. at *8.

Judge Ikuta bemoans this new “reverse proposition”: that a “lack of a match between an IP address associated with such images and the IP address of the defendant’s computer reduces probable cause of the defendant’s involvement.” Id. at *15 (Ikuta, J., dissenting) (emphases in original).

Happily, Judge Ikuta is in the minority and the case has now survived an en banc call: thanks to Chism, we now have another arrow in our Fourth Amendment quiver.

For Further Reading: Todd Chism, a Spokane Firefighter, also had his work computer searched because of this unlawful warrant and was arrested while the searches took place. For a video of Todd Chism discussing the case, see link here .

For a thoughtful discussion of the Chism decision, laying out the affidavit's misrepresentations and omissions in more detail, see blog entry here.

Image of Todd Chism from http://khq.images.worldnow.com/images/8243545_BG1.jpg Image of the Honorable Judge Sandra Ikuta from http://www.bmi.com/images/photoblog/2011/cache/photo_3_cordozamootcourt_bmi10-570x0.jpg

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

.
.

2011-11-07T14:36:00.000-08:00

U.S. v. Ceballos, No. 09-50502 (11-7-11) (Per curiam with Silverman, Wardlaw, and Sessions, D.J.)

The designation recommendation, and whether is can be appealed, is the subject of this appeal. After the hammer is dropped, the sentence imposed, the defendant sometimes asks the court to recommend a BOP designation. Sure, the court knows that it is BOP's call, but the recommendation is considered, and sometimes followed. Usually the judge intones that it is not binding, but recommends the institution, or region. Here, the defendant forgot to ask, and eight days later files a joint stipulation with the government to the court to revise the Judgment to state a recommendation for Southern California. On the joint stipulation, the court scrawls "denied" followed by saying it is BOP's responsibility and the defendant should ask BOP. The defendant had a 188-month sentence and his family was in Southern California. The defendant appealed this denial. The 9th held first that the court could not revise the judgment after the sentence. Second, and more important, and significantly, the 9th had no jurisdiction over the recommendation, or denial of recommendation. It is a decision for BOP, and that's that. The other circuits so agree. However, the 9th points out in footnote 2 that this decision does not deprive the court from making a non-binding recommendation.

Case o' The Week: Sanchez Sends a Memo -- Prosecutorial Misconduct in Closing Arguments

2011-11-06T12:16:00.001-08:00

Why don’t we send a memo to all federal prosecutors, to all AUSAs in the Ninth Circuit —why not our nation while we’re at it? Send a memo to them and say, "dear prosecutors, this an argument that you cannot make in a criminal trial." United States v. Sanchez, 2011 WL 5149141 (9th Cir. Nov. 1, 2011), decision available here.

Players: Decision by Judge Pregerson (above left), joined by Judges Fisher and Berzon.

Facts: After a narcotics dog alerted on Sanchez’s car at the Mexican border, a search revealed 29 kilos of cocaine in hidden compartments. Id. at *1. Sanchez told an ICE agent he thought marijuana had been hidden in the car, asked the agent to “help him,” and explained that he wanted his family to be safe. Id. At trial Sanchez described the duress that a Mexican cartel had exerted on him to smuggle the drugs, threatening his family if he refused. Id. at *2.

In the rebuttal closing argument, the AUSA argued, “[W]hy don’t we send a memo to all drug traffickers, to all persons south of the border and in Imperial County and in California—why not our nation while we’re at it. Send a memo to them and say dear drug traffickers, when you hire someone to drive a load, tell them that they were forced to do it. Because even if they don’t say it at primary and secondary, they’ll get away with it if they just say their family was threatened. Because they don’t trust Mexican police, and they don’t think that the U.S. authorities can help them. Why don’t we do that?” Id. at *2.

Sanchez was convicted on both cocaine counts. Id.

Issue(s): “Arturo Sanchez appeals his convictions for importation and possession of cocaine. He asserts that the last statement made by the prosecution in its closing rebuttal argument rendered the trial unfair.” Id. at *1. “Sanchez contends that the ‘send a memo’ statement made by the prosecutor during his closing rebuttal was improper argument. Sanchez did not raise this objection before the district court. Thus, we review for plain error.” Id. at *2.

Held: “We hold that the prosecutor’s inflammatory remarks delivered at the end of his closing rebuttal argument were improper and prejudicial. We reverse Sanchez’s convictions and remand for a new trial.” Id. at *1.

Of Note: Any defense win from a prosecutorial misconduct challenge is welcome. A defense win, on plain error review – now that’s an opinion to add to a trial binder.

As is its wont, the government in Sanchez tries to salvage the conviction by hiding behind the general milk-toast jury instructions (“what the lawyers say is not evidence.”) Id. at *4. Judge Pregerson ain’t buying it: “curative instructions fail to neutralize the harm of improper statements by a prosecutor when they do not mention the specific statements of the prosecutor and are not given immediately after the damage is done.” Id. at *4 (quotations and citation omitted).

Sanchez is doubly important: as a thoughtful example of a great prosecutorial misconduct analysis, and as proof that plain error review, honestly undertaken, can still cost the government a conviction.

How to Use: What, exactly, was wrong with the prosecutor’s “send the memo” argument? An AUSA can’t urge a conviction to “protect community values, preserve civil order, or deter future lawbreaking.” Id. at *3 (quotations and citation omitted). An AUSA can’t comment on the “social ramifications of the jury’s reaching a verdict,” and it is “improper to make statements designed to appeal to the passions, fear, and vulnerabilities of the jury.” Id. (quotations and citations omitted). In Sanchez, the AUSA managed to hit all three of these forbidden arguments. Consider reviewing these verboten themes before a prosecutor’s closing argument, to tune one’s ear for potential objections.

For Further Reading: The Ninth’s loss was California’s gain, when Governor Brown nominated Goodwin Liu to the California Supreme Court. Having lost one great nominee to a state Supreme Court, President Obama has decided to steal back another. On November 2, President Obama nominated Arizona Supreme Court Vice-Chief Justice Andrew Hurwitz to the Ninth Circuit, to replace Judge Mary Schroeder (who is going senior status). See press release here.

How is Hurwitz on criminal law? Well, he argued the lead Apprendi death penalty case, Ring v. Arizona, before the Supreme Court on behalf of death row inmates – and won, 7-2! See Ring summary here.

Image of the Honorable Harry Pregerson fromhttp://extras.mnginteractive.com/live/media/site200/2010/0213/20100213__valentine_dc_02.JPG Image of the Honorable Justice Andrew Hurwitz from http://www.lawclecenter.com/uploads/authors/andrew_hurwitz_full.jpg

Steven Kalar, Senior Litigator ND Cal FPD. Website at www.ndcalfpd.org

.

2011-11-01T14:16:00.000-07:00

U.S. v. Sanchez, No. 10-50192 (11-1-11) (Pregerson with Fisher and Berzon).

"Why don't we send a memo," said the AUSA in rebuttal argument, "to all drug traffickers" south of the border, indeed to everyone, that to get away with being caught as a courier, all they have to say is that their "family was threatened." Duress would be their acquittal ticket. Well, the 9th sent a published opinion that this was inflammatory, and prosecutorial misconduct. This required reversal, even under a plain error standard, because the prosecutor personalized the "send a message" argument with "send a memo" (Next? Send an e-mail or tweet?). The statement crossed the line, and went beyond fair response to defense argument. It was prejudicial because the defendant has said his family felt threatened when stopped, and the defendant had testified as part of his duress defense.

Case o' The Week: Tense Argument in Child Porn Case - Williams and Child Pornography

2011-10-29T14:20:00.000-07:00

Statutory construction, assures the Ninth, and verb tense analysis reveal that advertising an offer to distribute child pornography merits a fifteen-year mandatory minimum sentence.

(Actually distributing child porn, by the way, will get you five). United States v. Williams, 2011 WL 5084645 (9th Cir. Oct. 27, 2011), decision available here.
Players: Hard-fought appeal by Reno AFPD Michael Powell. Decision by Judge Thomas, joined by Judge NR Smith and visiting C.D.J. Solomon Oliver, Jr..

Facts: Williams used peer-to-peer software to post and share over 5,000 images of child porn. Id. After FBI agents traced these images to Williams, they searched his home and found a number of suspicious items related to boys. Id. Williams confessed he used internet networks to view and share child porn. Id.

He was indicted on possession, distribution, and (important to this appeal) “advertising the distribution of child pornography in violation of 18 U.S.C. § 2251(d)(1)(A).” Id. Williams moved to dismiss the advertising count, “arguing that the statute only applies to individuals who either advertise to produce child pornography or advertise child pornography that they actually produced.” Id.

The district court denied the motion; Williams entered a conditional plea to the advertising count.

Issue(s): “The sole issue is whether 18 U.S.C. § 2251(d)(1)(A) requires an individual to personally produce the sexually explicit visual depictions of minors that he advertises for distribution.” Id. at *1.

Held: “The plain language of § 2251(d)(1)(A) answers the question before us: There is no requirement that a defendant personally produce child pornography in order for criminal liability to attach.” Id. “In sum, the plain language of the statute and interpretations by our sister circuits lead to the conclusion that personal production is not an element of the crime.” Id. at *2.

Of Note: Williams was charged with three federal child porn crimes: possession (no mandatory minimum); distribution (five year mandatory minimum); and advertising the distribution of child porn (fifteen year mandatory minimum).

The first two charges fall under the familiar child porn statute: 18 USC § 2252A. The third – at issue here – falls within Section 2251, “sexual exploitation of children.”

When you read Section 2251 in its entirety, it is clearly focused not on viewing or distributing child porn, but on actual sexual contact with minors. In other words, by some dramatic overcharging the government obtained a fifteen-year mandatory minimum sentence for the act of “advertising” the distribution of previously-manufactured child porn. Had Williams been convicted of the (more egregious) distribution of child porn, he would have only had a five year mandatory minimum sentence. Compare 18 USC § 2251(e) (advertising) with 18 USC § 2252A(a)(2)(B) (distribution).

The fact that the “advertising” statute carries a fifteen year mand-min, and the other statute’s “distribution” charge carries five, is strong support for Williams' argument that the heavier sentences of § 2251 are intended for defendants who actually interact with kids, instead of someone redistributing existing porn. Williams is unfortunately silent on the mandatory-minimums that are what are really driving this case – Judge Thomas summarily dismisses the defendant’s charging challenge in a brief paragraph at the end of the decision. Id. at *4.

How to Use: Defending a child porn case? Read past Williams statutory construction analysis, ignore its exegesis on verb tenses, and think deeply about the decision’s tolerance of (in our view) a dramatically-overcharged and mis-charged case. Consider that there was no proof that Williams actually had inappropriate contact with a minor, then consider that he got fifteen years for advertising an offer to distribute existing child porn. See DOJ post here.

This is not just a dry little decision on obscure principals of statutory construction – Williams’ broader ramifications make it a must-read opinion for those who defend child porn cases.

For Further Reading: Fair to say we’re not fans of Williams, but all was not bad news in the Ninth this week. On October 27, the Court voted to take the regrettable Nosal case en banc. You’ll remember that Nosal was a dramatic extension of the Computer Fraud and Abuse Act into the context of an employer’s computers. See blog here.

Note that Joe Russoniello (left) was first Nosal’s attorney – then became the US Attorney for the office prosecuting Nosal! See id. Now that Melinda Haag has Joe’s corner office, maybe he can switch again and argue on Nosal’s behalf en banc?

"Advertise Here" gif from http://visainfobd.com/images/ADVERTISE_HERE.gif Image of Joe Russoniello from http://theeliteones.files.wordpress.com/2010/03/joe-russoniello4.jpg

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

.

2011-10-28T14:21:00.000-07:00

Boyer v. Belleque, No. 10-35574 (10-28-11) (Gould with Fisher and Paez).

The 9th in habeas holds that the state proved attempted aggravated murder by sufficient evidence.

U.S. v. Newman, No. 10-10430 & US v. Tedesco, No. 10-10444 (Graber, Kozinski, O'Scannlain).

In these issue related cases, the 9th considers whether forfeiture of proceeds is the same as restitution. It is not. Indeed, the remedies serve different purposes, and seek to disgorge funds and to make whole. So what, concludes the 9th, if the defendant has to pay more; the defendant has harmed society and the costs are high. Here, the defendant in a bank robbery has to forfeit his proceeds and make restitution and the same in a bank fraud case, although the latter is remanded for fact-finding as to what exact amount should be forfeited.

2011-10-27T15:46:00.000-07:00

U.S. v. Williams, No. 10-10550 (10-27-11) (Thomas with N. Smith and Oliver, D.J.).

The defendant argues on appeal that he cannot be convicted for advertising child porn if he did not produce the child porn. The 9th says "Yes you can." The defendant's argument that the language of the statute, 18 U.S.C. 2251(d)(1)(A), requires some direct connection to the production of the child porn, an argument that focuses on verb tenses (i.e. "involves") is rejected, as the 9th finds the language plain and the meaning clear that advertising does not require hands on production of the child porn.

Schultz v. Tilton, No. 09-55998 (10-27-11) (per curiam with Goodwin, Wardlaw, and Sessions, D.J.).

The petitioner argues that California's Jury Instruction (CALJIC) No. 2.50.01 (8th ed. 2002) violated due process by not requiring every element of the offense be proved beyond a reasonable doubt. This is a habeas challenge to a state sexual offense conviction, in which the state jury instruction allows the consideration of other uncharged sexual molestation acts to be considered as proof of preponderance. The 9th applies the deferential AEDPA standard, and holds that the state courts acted reasonably in holding that the instruction only goes to proof of propensity, but other instructions require the present crime be proved beyond a reasonable doubt. Moreover, the instruction delineates that the evidence is for a limited purpose.

Seeboth v. Mayberg, No. 09-15330 (10-27-11) (Bea with O'Scannlain and Graber).

The petition is dismissed as moot. The petitioner was determined to be a sexually violent predator in a civil trial. He was held for determinate two year periods. A state proposition changed confinement to an indeterminate period, and the state courts held that state petitions for extensions of time were deemed extensions for indeterminate sentences. Petitioner argues that his due process rights were violated because he was held from 2005 until 2010 without a trial. The 9th dismisses as moot because petitioner was subsequently given a trial and found to be still a sexual predator, and he was in custody for an indeterminate period.

Habeas Update: Twelve Rules For Surviving The AEDPA

2011-10-26T10:49:00.000-07:00

For those who litigate federal habeas corpus cases, the arc of habeas law has bended steadily toward procedural traps and obstacles that tolerate and enable violations of federal constitutional rights in state courts. In an effort to encourage development of state court records that permit federal courts to more frequently reach the constitutional merits, we have posted this article entitled Recent Supreme Court And Ninth Circuit Habeas Decisions: Why We Need Full Factual Development And Preservation Of Issues In State Court. As with surgeons who use checklists to improve medical outcomes (and as in the movie Zombieland Columbus keeps rules for survival), we have come up with twelve rules for state practitioners that can ameliorate the threats to merits review posed by the Antiterrorism and Effective Death Penalty Act of 1996 and recent construction of that statute. For example:

Rule # 1
Double Tap: If The Issue's Worth Raising, It's Worth Federalizing.

Rule # 6
Full Facts First: Make Sure The State Factual Record Has Every Possible Evidentiary Support For Your Position.

Rule #9
Cardio: Develop The Stamina To Raise Federal Issues On Appeal And Petition For Review Because They Must Be Presented To The Highest State Court To Be Exhausted.

The article also addresses developing issues such as why there should be no diligence requirement in Schlup actual innocence cases and why we need to develop evidence regarding the adequacy of state review procedures. If you have thoughts on modifications, deletions, and additions to the rules, please email your ideas. If there are state practitioners who might find the article useful, pass it on.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

2011-10-26T09:07:00.000-07:00

U.S. v. Reveles, No. 10-30313 (10-24-11) (Guilford, D.J., with Noonan and M. Smith).

The defendant was driving while impaired on a military base. He was given a non-judicial punishment by the Navy under the Military Code. After getting fined, reduced in rank, and other punishment, he then faced a criminal prosecution. A double jeopardy challenge was raised. The 9th held that there was no double jeopardy bar because the military punishment was non-judicial punishment, and not criminal. Looking at congressional intent, Congress did not mean to impose criminal punishment under the provision of the Military Code. The penalties do smack of punishment, but do not rise to criminal because of the limited cap or max and limited punitive intent. Since the first prosecution was not criminal, there is no bar.

Doe v. Busby, No. 08-55165 (10-24-11) (M. Smith with Pregerson and Beezer).

The 9th affirmed the district court's granting of habeas relief. The 9th rejected the State's argument against equitable tolling. The State acknowledges that counsel was incompetent, abandoned the client, and the client tried to file a petition, but argued that the petitioner should have known that counsel was incompetent. Really, that was the argument. It was given short shrift. The 9th then held that there was constitutional error because, under California's CALJIC No. 2.50.01, the state argued that murder and domestic violence could be proved by the jury finding unadjudicated prior acts of domestic violence by a preponderance of proof. Under precedent, Gibson v. Ortiz, 387 F.3d 812 (9th Cir. 2004), this state instruction has been held unconstitutional for this lessening of proof beyond a reasonable doubt. A general instruction as to the State's requirement to prove each element beyond a reasonable doubt does not save the conviction.

Case o' The Week: Ninth Gives Defense Welcome Immunity Shot - Wilkes

2011-10-23T12:21:00.000-07:00

California Congressman Randall "Duke" Cunningham (right) took his resignation hard, after being caught in a massive bribery and corruption scandal. Duke's alleged co-conspirator, Brent Wilkes, has cause for a more joyful reaction: the Ninth just sent his case back down after conviction when the defense was denied court-ordered immunity for an important witness. United States v. Wilkes, 2011 WL 4953070 (9th Cir. Oct. 19, 2011), decision available here.

Players: Big win for San Diego Ass’t Fed. Defenders Shereen Charlick and Gabriel Cohan.

Facts: Wilkes’ company converted government docs to an electronic format. Id. at *1. To win government contracts Wilkes spent tens of thousands of dollars on meals, trips, and payments to former California Congressman Randall “Duke” Cunningham. Id. The bribes and contracts escalated for eight years, until a newspaper exposed the scheme and Wilkes was charged with a variety of federal offenses. Id. At trial Wilkes sought immunity for defense witness Williams, whom he contented would contradict the testimony of prosecution-immunized witnesses. Id. at *2. The district court denied the motion, holding that it “could not compel a defense witness’s immunity absent a finding of prosecutorial misconduct.” Id. Wilkes was convicted of thirteen counts, and appealed. Id.

Issue(s): “Wilkes maintains that the district court should have compelled the prosecution to grant use immunity to defense witness Williams because had he been granted immunity, his testimony would have corroborated Wilkes’s testimony and directly contradicted the testimony of immunized government witnesses. The government contends that Wilkes was not entitled to compelled use immunity for Williams because Wilkes failed to provide a valid offer of proof of Williams’s testimony in the presence of the witness’s counsel and counsel for the government. Wilkes’s ex parte proffer to the district court was thus meaningless, the government argues, because there was no reason to believe Williams would have testified as Wilkes proffered.” Id. at *3.

Held: “Here, the district court concluded that Wilkes had proffered testimony by Williams that would have been ‘material and relevant evidence that the defense would want to present to counter some of what’s been presented by the United States through immunized witnesses.’ The district court also repeatedly expressed its concern that not granting Williams immunity would have the effect of distorting the fact-finding process. The court nonetheless refused to compel use immunity because it concluded that it was powerless to do so absent a finding of prosecutorial misconduct.” Id. at *5.

“In view of this court’s ruling in Straub that a finding of prosecutorial misconduct is not required to compel use immunity, this matter must be remanded to the district court for an evidentiary hearing so the trial court can gather ‘greater detail about [Williams’s] proposed testimony and the immunity agreements the government gave to its other witnesses’ to determine whether compelled use immunity was constitutionally required. Straub, 538 F.3d at 1151.” Id. at *6.

Of Note: Sadly, other issues in this long opinion didn’t fare as well as the defense-immunity question. Of particular concern is the Court’s tolerance for withholding proffer sessions from the defense. Id. at *6-*7. Wilkes argued a Brady / Giglio violation when the government failed to disclose proffer sessions of an important witness. Id. at *7. Judge Alarcón, in our view, incorrectly characterizes these sessions as “cumulative” – the defense already knew that the government witness had immunity, and knew of the witness’s involvement of in the bribery scheme. Id. at *7.

However, as anyone who has proffered a snitch knows, Judge Alarcón’s justification misses the point: those secret sessions are where a cooperator’s story is “polished” (or “dictated”) into an acceptable script for the government. It is the changes in a cooperator’s story, revealed in proffer sessions, that is the Giglio gold – not the obvious fact that the cooperator is also a crook.

The disclosure of Gilgio material from proffer sessions is a challenge that needs further work: Wilkes’ analysis gives the issue short shrift.

How to Use: When hunting immunity for defense witnesses, compare Wilkes to another post-Straub case, Flores-Blanco. See blog here. The key difference in the two Ninth Circuit decisions? In Wilkes, there were prosecution-immunized witnesses; in Flores-Blanco, not. That key fact can give much sharper teeth to a Straub challenge to failure to order immunity for defense witnesses.

For Further Reading: President Obama has nominated a replacement for Ninth Circuit Judge Rymer: Paul Watford (above left). See article here. A former AUSA and a Justice Ginsburg clerk, 44-year old Watford will presumably have a different confirmation experience than (now-California Supreme Court Justice) Goodwin Liu.

Image of Randall "Duke" Cunningham from http://www.momdot.com/biggest-meltdowns
Image of Judicialnominee Paul Watford from http://articles.latimes.com/2011/oct/18/nation/la-na-obama-nominates-judge-20111018

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcal.fpd.org

.

2011-10-19T14:19:00.000-07:00

U.S. v. Rizk, No. 10-50051 (10-19-11) (Gould with Schroeder and McCuskey, Chief D.J.).

In an appeal from a loan fraud, bank fraud, and conspiracy trial, the 9th affirms convictions and sentences. The defendant was a licensed appraiser that allegedly appraised too high. The 9th found sufficient evidence to support the conviction, and also affirmed numerous other contentions. This is a good road map for evidentiary issues in mortgage fraud matters. Of special note was the discussion by the 9th on FRE 1006 concerning summaries (which will be used a lot in document cases) and their interplay with FRE 404(b) (other act evidence). The 9th also corrected the restitution so that the victims did not receive more than their losses.

U.S. v. Wilkes, No. 08-50063 (10-19-11) (Alarcon with O'Scannlain and Silverman).

This appeal arises from prosecutions related to the bribery prosecution of Congressman "Duke" Cunningham. The 9th remands for an evidentiary hearing on whether the government's refusal to grant immunity to a defense witness, after granting immunity to many of its witnesses, so skewed the trial as to require a constitutionally mandated grant of immunity by the prosecution. In this, the 9th follows its precedent in U.S. v. Straub, 538 F.3d 1147 (9th Cir. 2008). In Straub, the 9th held that a district court can compel a defense witness's immunity without a finding of prosecutorial misconduct. It can do so in "exceptional cases" where the fact-finding process is so distorted by the government's granting immunity to its own witnesses while denying immunity to a defense witness who has directly contradictory testimony. Straub, 538 F.3d at 1166. Here, the defense witness was found by the court to have relevant, contradictory evidence. The court thought it needed to find prosecutorial misconduct (Straub came out subsequently). As to various challenges for Brady / Giglio evidence, the 9th found found no violations because of no prejudice. The 9th also held there was not prosecutorial misconduct in argument, as the prosecutors were responding to defense arguments. There was also no Santos violation.

Congratulations to Shereen Charlick and Gabriel Cohan of the Federal Defenders of San Diego.

Case o' The Week: Inmate Gets Shanked -- Urena, Confrontation Clause, and Experts

2011-10-15T11:15:00.000-07:00

In Urena, an inmate was hurt in an unfair fight, where contraints meant that he unable to defend himself in any meaningful way.

And that was just the trial. United States v. Urena, 2011 WL 4840665, (9th Cir. Oct. 13, 2011), decision available here.

Players: Hard-fought appeal by CD Cal AFPD Elizabeth Newman.

Facts: Inmate Urena was charged with assault and possessing a shank. Id. at *1. At trial, the government called the doc who had treated the victim – another inmate. Id. The doctor was offered to testify “on the nature and extent of [the victim’s] injuries.” Id. The doc’s report had opined that an injury above the victim’s eye “was likely caused by a punch, or a fall to a ground, not a knife.” Id. The government moved to prevent the defense from crossing the doc on causation – the cause of the injury – and the court granted that motion. Id. At trial, Urena tried to designate the doc an expert to ask about the injury; the district court refused. Id. Urena was convicted. Id.

Issue(s): 1. Confrontation Clause: “Urena . . . contends that the district court erred by preventing him from examining Dr. David about the cause of [the victims] injuries and that this violated his Confrontation Clause rights.” Id. at *3 . . . .

2. Expert Witness: “Urena alternatively argues that the trial court erred 1) by ruling that testimony about causation of the injuries would be expert testimony and 2) by not allowing Urena to designate Dr. David as an expert.” Id.

Held: 1. Confrontation Clause: “The Government called Dr. David to testify only as to the nature and extent of [the victim’s] injuries. Urena’s Confrontation Clause rights were not violated, as he was allowed to cross-examine Dr. David on these issues, and on matters of bias and motivation.” Id.

2. Designation as Expert: “[O]ther courts have held that a physician’s assessment of the cause of an injury is expert testimony . . . . We are persuaded, and agree with our sister circuits, that Dr. David’s opinion on issues of causation required expert testimony.” Id. at *3. “Urena’s argument that he should have been allowed belatedly to designate Dr. David as an expert to testify on the cause of the injuries also lacks merit . . . [I]nstead of designating a medical expert before trial, he tried without success to designate Dr. David as his expert once trial had begun. The district court has ample discretion to prevent a party from designating a new expert witness after the trial has started.” . . . “We hold that the district court here did not abuse its discretion in declining to permit Urena to add Dr. David as a defense witness on the causation issue during trial.” Id. at *3.

Of Note: With little analysis authoring Judge Gould adopts a new Ninth rule: a treating physician cannot testify as to causation, without being designated as an expert. Id. at *3. Could a percipient, lay witness – here, the treating doc – also be designated as an expert witness and opine as to causation? Sure, under the rationale of a regrettable Ninth expert decision, United States v. Anchrum. See Anchrum blog here.

Note that Judge Gould did not say in Urena that the treating doc could not have been designated as an expert as to causation: the problem was one of inadequate notice by the defense of this anticipated expert testimony. Id. at *3.

How to Use: As noted by fellow blogger Jon Sands, Urena stands for the broad proposition that a district court has tremendous discretion to control the presentation of witnesses in trial. Id. at *3. Urena significantly strengthens defense arguments that a district court can and should order detailed pretrial disclosure of government witnesses, and that a district court can unilaterally exclude witnesses (with no showing of unfair surprise or prejudice) if late disclosures were not in compliance with pretrial orders. Id.

The government, not the defense, is far-more-frequently the culprit with late witness disclosures, belated expert notices, or expert testimony that exceeds the pretrial description. (Probably because we rarely have witnesses). Along with the W.R. Grace decision, Urena bolsters a district court’s ability to put short work to these government shenanigans. See id. at *3 (quoting Grace, 526 F.3d 499, 516 (9th Cir. 2008) (en banc); see also W.R. Grace blog here.

For Further Reading: For a thoughtful criticism of Urena’s rejection of a self-defense instruction, see blog here.

Image of "Shank" movie from http://www.brokeandfamous.cz/blog/2010/02/04/shank-movie-trailer/

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

2011-10-14T12:20:00.000-07:00

U.S. v. Carper, No. 10-10517 (10-14-11) (Noonan with M. Smith and Fogel, D.J.).

On a clear night, you can see forever with PVS-14 night sight equipment. That was the problem for the Marine who, to make some extra money, sold a night sight device to a Polish resident, another to a Chinese resident, and three others knowing they were being shipped to China. He pled guilty straight up to the four-count Indictment charging violations of 18 U.S.C. 554, 371, and 22 U.S.C. 2778, making criminal the unlicensed export of items on the U.S. munitions list. On appeal, he argued that the court should have used the offense level 14 and not 26 under USSG 2M5.2, because 14 applies to non-fully automatic small arms, not exceeding ten. The problem, reasons the 9th in affirming the sentence, is that the night sight devices are not firearms. The adjustment would not apply. As to the issue of departing on policy grounds, well, that was not raised, and under plain error review, the sentence of 36 months was reasonable.

2011-10-14T08:30:00.000-07:00

U.S. v. McEnry, No. 10-10433 (10-13-11) (Tashima with Rawlinson and Hatter, Sr. D.J.).

The 9th finds sentencing procedural error when it incorrectly calculated the defendant's guidelines. The defendant was charged with operating an aircraft as an airman without an airman's certificate in violation of 49 U.S.C. 46306(b)(7) (a pilot's license in effect...he did have a student's certificate in 1986). Oh yes, he came to the attention of the FAA, and the airport where he landed, when he appeared unsteady, disoriented, and spoke about flying through military airspace alongside military jets. At sentencing, there was no guideline on point, and so the court used a guideline that referenced interference with a flight, based on relevant conduct. The 9th found error because relevant conduct cannot be used to pick out a guideline; rather, the guideline has to be most applicable, and here it would be 2B1.1, which has enhancements for risk.

Congratulations to AFPD Eric Kersten of the FPD Office, Eastern District of California (Fresno).

U.S. v. Urena, No. 09-50285 (10-13-11) (Gould with Schroeder and McCuskey, D.J.).

This is a prison assault case that raises some troubling issues, all of which were rejected by the 9th in affirming the conviction for assault with a dangerous weapon and sentence. First, the defendant argued that he acted in self-defense because he was earlier called "a bitch" by a fellow inmate. He also argued that the victim carried a shank. The 9th said that the undisputed evidence was that the defendant was the aggressor and that harsh or insulting words do not give a person leave to attack, even in prison. It should be noted, though, that the defendant had presented some evidence that the victim had a shank, and so the attack could have been an escalation of a fight. Not much evidence is needed for an instruction. More troubling is the district court's barring of a doctor to testify on cross as to the causation of a wound. The doctor wrote a report that there was a wound on the victim's face, and it was caused by a fall or punch. The government called the doctor only to testify as to the nature and extent of the injury, not as to the cause. The district court barred defense counsel from crossing on the causation as being outside the scope, and barred counsel from using the doctor as an expert because he was not so designated. The 9th held that confrontation was not violated because counsel could cross on the extent of direct testimony. The court had discretion to prevent new evidence once the trial was underway. (Editorial note: the court did not address the fact the government was not surprised, and it gave important evidence as to the injury. The next time the government tries to bring in new evidence, this case can be cited against them as the need for enforcement of pretrial disclosure). Lastly, the defendant was assessed criminal history recency points, despite the fact that a guidelines amendment eliminated such points. The 9th held that the defendant is sentenced under the guidelines in effect at the time, and that it is substantively reasonable. The 9th acknowledges that the basis for the adjustment, recidivism, was shown to be faulty, but the 9th would not remand to give the district court a chance to re-evaluate its sentence in light of the amendment. If a guideline amendment is not retroactive, and this was not, then tough, one gets the guidelines in effect.

U.S. v. Reyes, No. 10-10323 (10-13-11) (M. Smith with Gould and Marbley, D.J.)

The 9th affirms convictions for securities fraud and false filings. The 9th finds no prosecutorial misconduct in evidence as to the profits of the defendant in backdating proxies; the evidence was to show motive. The 9th also finds the evidence sufficient to support the verdict.

2011-10-12T15:22:00.000-07:00

James v. Schriro, No. 8-99016 (10-12-11) (W. Fletcher with Berzon and M. Smith).

The 9th grants IAC relief on penalty phase of a capital sentence. The 9th finds that trial counsel completely failed to investigate and present mitigating evidence of the petitioner's troubled childhood, mental illness, and drug abuse. Such failure was prejudicial. The 9th denied relief on the guilt phase claims based on Brady, Giglio and Napue evidence (a plea agreement with the testifying juvenile co-defendant turned cooperator) because of harmlessness and lack of prejudice due to overwhelming evidence of guilt.

Case o' The Week: "Willful" Obstruction of Justice - for Unknown Investigation? Gilchrist and U.S.S.C. § 3C1.1

2011-10-10T13:13:00.002-07:00

Don't lie. Or, at the very least, don't lie in a civil deposition when the feds have an investigation underway. If you do, obstruction of justice awaits (even if you don't know of the federal investigation at the time of the lie!) United States v. Gilchrist, 2011 WL 4537789 (9th Cir. Oct. 3, 2011), decision available here.

Players: Hard-fought appeal by our ND Cal CJA colleague Bob Waggener. Appeal from sentencing imposed by D.J. Susan Illston, ND Cal. Decision by Judge Carlos Bea (above left).

Facts: Gilchrist had a check–kiting and fraud scheme running with Wells Fargo. Id. at *1. When caught, he made a fraud claim against Wells Fargo – and civilly sued the bank! Id. at *2. Unbeknownst to Gilchrist, the FBI picked up the referral from Wells Fargo and began an investigation. Id. at *2. Gilchrist then perjured himself in depositions related to the civil suit. Id. at *2.

Gilchrist was ultimately charged federally and pleaded guilty to federal embezzlement and bank fraud. Id. at *1-*2. At sentencing Judge Illston imposed the “obstruction of justice” enhancement under USSG § 3C1.1, adding two levels for Gilchrist’s lies during the civil depositions. Id. at *3.

Issue(s): “[Gilchrist’s] primary contention is that because he did not know he was the subject of a pending criminal investigation at the time he committed perjury in a civil suit concerning the very same conduct later charged in the criminal Indictment, the district court erred in applying U.S.S.C. § 3C1.1 to enhance his sentence for willfully obstructing justice.” Id. at *1.

Held: “We agree with our sister circuits that ‘willful means only that the defendant have engaged in intentional or deliberate acts designed to obstruct any potential investigation, at the time an investigation was in fact pending; it does not mean the defendant had to know for certain that the investigation was pending.” Id. at *9.

Of Note: When the challenge is that a district court abused her discretion at sentencing, what is the standard of review? Hinkson, it turns out. We’ve bellyached about the regrettable new Hinkson standard for abuse of discretion from 2009, concocted in the context of evidentiary rulings for a federal conviction. See blog entry here. In Gilchrist, Judge Bea expressly relies upon that hugely deferential standard while reviewing Judge Illston’s sentence. See id. at *6.

Hinkson is a formidable hurdle if you are a defendant alleging an abuse of discretion at sentencing. If you are a defendant defending a sentence against government attack, however, be sure to tuck up under Hinkson’s remarkably deferential wings (the Ressam en banc case is a great example, where the government is challenging the substantive reasonableness of a sentence).

How to Use: Gilchrist adopts a new and unwelcome rule in the Ninth Circuit: you can get hit with obstruction for lying during civil depositions, even if you weren’t aware of a federal investigation when you lied. In an era where banks and Silicon Valley firms have shouldered the bulk of the FBI’s white collar investigation responsibilities, this new rule is yet another thing to worry about in civil depositions – and is a new basis for asserting the Fifth during a depo.

The one solace is that Judge Bea emphasizes a distinction between the Ninth’s rule and the rule in (some) other circuits: the federal investigation must actually be underway when the civil perjury takes place.

For Further Reading: Have you been watching Ken Burns’ great new documentary, Prohibition, on PBS? (You should). Sentence guru Professor Berman has, and has written a terrific post on the series here. The good Prof muses on the parallels between the prohibition of booze a century ago, and the federal prohibition of pot today. It’s a particularly timely analogy, as the Obama administration flip-flops on its earlier position and is now sending target letters to marijuana dispensaries – clinics that are in full compliance with state regulations. See Associated Press article, here .

Image of the Honorable Carlos Bea from http://www.hispanicallyspeakingnews.com/notitas-de-noticias/details/sb-1070-judge-was-once-almost-deported/ Image of Medical Marijuana from http://infohemp.com/wp-content/uploads/2011/01/California-Medical-Marijuana-150x150.jpg Image of Prohibition promo from http://www.thefastertimes.com/crime/2011/10/02/ken-burns-prohibition-a-documentary-about-the-promise-of-america/

Steven Kalar, Senior Litigator ND Cal FPD. Website at www.ndcalfpd.org

.

2011-10-04T14:43:00.000-07:00

Carreras v. Ayers, No. 08-99007 (10-4-11) (Bea with O'Scannlain; dissent by Tashima).

The 9th considers whether defense counsel's failure in a 1983 California capital trial to object to a prosecutor's allegedly group bias-based preemptory strikes was IAC. The 9th held it was not IAC. The prosecutor struck six Hispanic venirepersons. Two Hispanics did sit as jurors, with one as an alternate. The defendant had a high bar to prove ineffectiveness, and he did not clear it. The reasons for striking the prospective jurors seemed strategic and tactical, and the record supported reasons to want them removed. Tasima dissents, arguing that a prosecutor's striking of 75% of Hispanic jurors should have rang an alarm. The reasons for such strikes seem flimsy.

2011-10-04T09:24:00.000-07:00

U.S. v. Gilchrist, No. 09-10250 (10-3-11) (Bea with Schroeder and Rawlinson).

A defendant who perjures himself in an attempt to impede a civil administrative investigation conducted by a governmental investigative body that eventually results in related criminal charges can be subject to a 3C1.1 Guideline enhancement for obstruction, even if he is not aware of the pending or ongoing criminal investigation. "Wilful" obstruction means that the defendant engaged in intentional obstruction at the time of a pending investigation; it does not mean that the defendant had to know for certain that the investigation was pending. This aligns with other circuits, which go even further, such as the 11th, which does not even require a criminal investigation be underway at the time.

U.S. v. King, No. 09-30442 (10-3-11) (W. Fletcher with Aldisert and Fisher).

The 9th upholds the Safe Drinking Water Act, 42 U.S.C. 300h-2(b)(2) against a constitutional challenge that the Act violates commerce clause jurisdiction. Congress has the power to regulate interstate commerce, and safe underground water affects interstate commerce. The 9th also affirms the counts of conviction against statutory challenges that the government failed to prove that an injection of water adversely affected well water; the government need only show that the defendant failed to get a permit to inject water. The 9th also affirms the false statement conviction. The false statement need not be made to a federal agent; it must be, and was, made to an agency that has the power to exercise authority over the subject matter.

Case o' The Week: The Sixth Glitch in Fitch -- Upward Variances on Judge-Found Facts

2011-10-02T09:53:00.000-07:00

How does one manage to get a twenty-one year sentence for murder, when:

● No body is ever found;

● No murder charges are ever filed;

● No jury ever hears the charge; and,

● There is insufficient evidence to prove the suspected crime beyond a reasonable doubt?

Easy -- just get convicted of fraud in federal court. United States v. Fitch, 2011 WL 4430809 (9th Cir. Sept. 23, 2011), decision available here.

Players: Decision by Senior District Judge Block (ED NY), joined by Judge NR Smith. Dissent by Judge Goodwin.

Facts: David Fitch dated Ms. Molano and went to visit her in England. While there, and while still romantically involved with Molano, Fitch met and married a different woman: Ms. Bozi. Id. Bozi came to the US and lived with Fitch in his Nevada mobile home. Soon after, Ms. Bozi stopped calling family and friends abroad. Id. at *2.

For weeks after Bozi’s last call, Fitch withdrew money from her bank account (one time wearing a fake mustache). He also withdrew a $8,000 cashiers check from Bozi’s account, made payable to Molano. Id. A search of Fitch’s trash produced a receipt for chloroform sold to, “Dr. David.” Fitch later tried to sell used women’s clothing and shoes, explaining his wife had “left him.” Id.

Under investigation, Fitch made a false ID and passport, flew the England, and married Molano using an assumed identity. Id. at *3. He was arrested when he returned to the U.S.; later searches revealed guns, Bozi’s passport, and a number of books in Fitch’s briefcase. Id. at *3 & n.4.

Ms. Bozi has not been heard of since her last calls to her friends and family.

Issue(s): “[ ] Fitch was convicted by a jury of . . .bank fraud, . . . fraudulent use of an access device, . . . attempted fraudulent use of an access device, . . . laundering monetary instruments, and . . .money laundering. The applicable Sentencing Guidelines range was 41–51 months. At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means he used to commit his crimes. Relying on that finding, he imposed a sentence of 262 months.

Fitch appeals his sentence, arguing that the district court committed procedural error and that, in any event, its sentence was substantively unreasonable. Because Fitch has never been charged with his wife's murder, his sentence is a poignant example of a drastic upward departure from the Guidelines range – albeit below the statutory maximum – based on uncharged criminal conduct. We have not had occasion to address a scenario quite like this . . .” Id. at *1 (emphases added) (footnote omitted).

Held: “. . . but are constrained to affirm.” Id.

Of Note: The unfortunate books in Fitch’s briefcase? “The Modern Identity Changer; How to Make a Silencer for a .45;. . . The Revenge Encyclopedia; 100 Ways to Disappear and Live Free; . . . Hit Man, A Technical Manual for Independent Contractors; . . . The Death Dealer's Manual; . . . How To Make a Silencer for a .22; Methods of Disguise; . . . New ID in America; and Kill Without Joy! The Complete How to Kill Book.” Id. at *3 & n.4.

How to Use: Fitch is a Big Deal. It tolerates a skyrocketing sentence, based solely on facts (a suspected murder) not found by a jury, and not proved beyond a reasonable doubt. In short, the opinion eviscerates the intent of Apprendi and fully implicates Justice Scalia’s Sixth Amendment concerns. See id. at *6. (To be fair, visiting Judge Block concedes many of these concerns -- and gives the impression he'd welcome further review in light of the Sixth Amendment issues).

Fitch cries out for Supreme Court review.

Moreover, Fitch hits us just as the Ninth struggles with the meaning of “substantive reasonableness” review. In Fitch the guideline range was just one fifth of the ultimate sentence imposed, yet the panel upholds this whopping upward variance. (The sentence imposed is five times the guideline range). Fitch came out just days after the Ressam en banc argument (argument available here), while "substantive reasonableness review" is very much on everyone's minds.

In Ressam, a downward variance resulted in a sentence 1/3 of the guideline range – yet it is Ressam that is getting the close look on substantive reasonableness review. Fitch is far-and-away the greater variance from the guidelines (a variance upward), but it is Ressam (a variance downward) that is now undergoing substantive reasonableness review by an en banc court of the Ninth Circuit.

Put differently, will the Ninth's new rule be that an upward variance five times the guideline range is OK, but a downward variance to one third of the guideline range is not?

(We know, we know -- in Gall the Supreme Court "reject[ed] the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence." 522 U.S. at 47. Still, we're in "rough justice" territory here - and if you listen to the Ressam en banc argument, the jurists are rightly concerned how any new substantive reasonableness rule will resonate against other cases).

Will Fitch and Ressam together mean that, practically speaking, substantive reasonableness review is just for government appeals, for sentences that are too low? Continue to make and preserve objections to the substantive reasonableness of sentences: Fitch and Ressam are a developing duo of cases that could have a big impact on federal sentencing law in the Ninth.

For Further Reading: Because Section 3553(a)’s parsimony provision is mandatory, Fitch affirms an unconstitutional sentence based on facts not proved to a jury beyond a reasonable doubt. For an elegant explanation of why this is so, see Steven Hubachek, The Undiscovered Apprendi Revolution: The Sixth Amendment Consequences of an Ascendant Parsimony Provision, 33 Am. J. Trial Advoc. 521 (2010).

(The California Evening Primrose (above right), it turns out, is a lot like Section 3553. To find out why, hit Huba's article).

Image of the Sixth Amendment from http://www.richardkruse.com/products/6th_Amendment_T-Shirt.jpg

Ultraviolet image of the California Evening Primrose from http://www.dailymail.co.uk/sciencetech/article-473897/A-bees-eye-view-How-insects-flowers-differently-us.html

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

.

2011-09-30T12:14:00.000-07:00

U.S. v. Krupa, No. 09-10396 (9-30-11) (Callahan with Wolle, Sr. D.J.; dissent by Berzon).

This is a computer search case redux. The 9th withdrew the original opinion, and reissued this. The 9th holds there was probable cause to support the issuance of a search warrant, albeit a close case. The defendant was watching the children of a serviceman, who was abroad. The military police were asked by an ex to check out the situation, and they were concerned with the conditions when they arrived at the home. In looking, an investigator saw what he believed was a suspicious photo. The 9th upheld the search because of the totality of circumstances, and the deference to the facts and qualifications known at the time. In dissent, Berzon argues that the seeing of a photo of a teen female was not sufficient probable cause.

U.S. v. The Business of the Custer Battlefield Museum and Store, No. 10-30222 (9-30-11) (Fisher with Gould and Paez).

The 9th holds that there is a qualified common law right of access to access materials filed in support of search warrants after the investigation has ended. There may be restrictions, but the government has to show a compelling reason.

2011-09-28T14:52:00.001-07:00

U.S. v. Barraza-Lopez, No. 10-50280 (9-28-11) (Fisher with Pregerson and Berzon).

When is the Speedy Trial Act clock rewound with a dismissal without prejudice? This is a 1326 case where the charges against a defendant are dismissed without prejudice, only to be later refiled. The Act's time ran out if the first filing date is used; not if it was the latter. On appeal, the 9th holds that the Speedy Trial Act's 3161(b)'s 30-day clocks start ticking anew from the filing of the new charge. Recognizing the possibility in the statutory language for another interpretation (relate back), this interpretation comports with the interpretation of the other circuits, harmonizes the provisions of the Act, harmonizes the Sixth Amendment jurisprudence, conforms to the 70-day requirement for trial, and is supported by legislative history. If there are abuses by the government, or sloppiness, the court can curb with a dismissal with prejudice or through other means.

2011-09-27T16:01:00.000-07:00

Stokley v. Ryan, No. 09-99004 (9-26-11) (McKeown with Paez and Bea).

The 9th affirms the denial of a capital habeas asking for an evidentiary hearing on IAC. The panel sidestepped Pinhoslter. Whether Pinholster limited review to the record before the state courts on post-conviction, or whether the new evidence that was developed and presented to the federal courts, did not matter. The high standard of Strickland would bar relief under either analysis.

U.S. v. Sykes, No. 10-50399 (9-26-11) (Alarcon with O'Scannlain and Silverman).

The defendant received a resentencing under the crack guidelines. However, retroactive relief only applied to the Guidelines and not to the mandatory minimum sentence of 10 years. His sentence of 120 months (down from 121 months) stood because he had been informed of the mandatory minimum when he plead, and the mandatory minimum, even without an Apprendi amount listed, still controlled.

U.S. v. Perelman, No. 10-10571 (9-26-11) (Graber with Hug and Silverman).

The defendant fraudulently obtained and wore a Purple Heart. He also managed to bilk the Veterans Administration out of $180,000 in disability payments. Charged with 18 USC 704(a), the unauthorized wearing of military medals, defendant raises a broad First Amendment challenge. The 9th reads into the statute the requirement that the medal is worn with an intent to deceive, and thus limits the statute's reach from applying to actors, widows, and protestors and so forth.

U.S. v. Chung, No. 10-50074 (9-26-11) (Graber with Goodwin and Kleinfeld).

The defendant stole economic secrets from Boeing and sold them to China. He was charged with violating the Economic Espionage Act, false statements, and failing to register as a foreign agent. The 9th found sufficient evidence to affirm the convictions. The 9th also found no Brady violation, as the exculpatory evidence disclosed late could still be used. The 9th rejected numerous evidentiary challenges. Finally, the 9th upheld the use of the sentencing guideline for "national defense information" as the most analogous. The information stolen need not be held by the government.

2011-09-26T09:14:00.000-07:00

U.S. v. Fitch, 97-10607 (9-23-11) (Block, Sr. D.J., with N. Smith; dissent by Goodwin).

Can a court sentence for a murder proved by clear and convincing evidence when the convicted offenses were fraud and money laundering? Yes, holds the 9th. The defendant here fell in love with a Colombian woman, and followed her to England. There, they continued seeing one another. By the way, he marries another woman, who agrees to follow him to Nevada. Money is transferred, and a trailer park home purchased (we all have our dreams). She and defendant go on a trip, and she is never seen again. Her money starts disappearing, family and friends do not hear from her, and even the bank starts calling. The defendant then steals an identity and marries his Colombian girlfriend. Prosecuted and convicted for numerous fraud offenses, he faces guidelines of 41 to 51 months. The court sentences him to 262 months. The 9th is troubled by the increase of sentence for an offense for which the defendant was not charged, much less convicted. The court found facts beyond clear and convincing and tied it to the fraud by stating that the murder provided the means for the fraud. The sentence was not at the top of the statutory max if all the counts ran consecutively nor was the sentence as long as murder. The 9th recognized that a court could consider all sorts of information, and so affirmed. There were no procedural errors, nor was the sentence substantively unreasonable. The 9th did seem uneasy, but deferred to the court. Goodwin, dissenting, argued that facts were found by the judge that increased the sentence and so ran afoul of the Sixth Amendment. This sentence went beyond because the murder was not charged, nor proved, and the sentence was for a crime for which he was not charged.

U.S. v. Rivera, No. 10-50313 (9-23-11) (Korman, Sr. D.J., with Noonan and Wardlaw).

The 9th held that petty thefts can be aggravated felonies for 1326 purposes because they act as recidivist enhancements that raise the sentence of theft to more than a year. Petty theft in the California code is not a generic theft, but a modified categorical approach. Looking at the charging document, plea, and judgment, supports such a finding.

Orel wits v. Sisto, No. 09-16142 (9-22-11) (Graber with Bea; O'Scannlain concurring).

The district court ordered the state to conduct a new parole hearing. The warden appealed. Maybe the court erred in ordering the hearing; after all, the Supremes in Swarthout subsequently held that the analysis was whether some due process was followed, not the decision itself. However, the ordering of a new hearing is not a release of the petitioner. Hence, it is not a final order. There were other claims unresolved. The appeal, therefore, was dismissed for lack of jurisdiction. O'Scannlain argues that the lack of jurisdiction should be characterized as mootness in light of the fact that the hearing was held, and the petitioner received relief. O'Scannlain worries that a state could not appeal an erroneous order that stops short of ordering release.

U.S. v. Baker, No. 10-10223 (9-20-11) (Graber with Silverman and Lynn, D.J.).

The 9th affirms the sentence on a misdemeanor possession conviction (a lesser included), and the condition of suspicionless searches, but reverses the condition for DNA collection. The district court exceeded its statutory authority in ordering it. In a concurrence, Graber notes the distinction in treatment of defendants on parole and probation. Defendants on probation have slightly greater expectations of privacy than parolees. The Supremes recognize this but the 9th continues to treat the two sentences the same. A probationer may not be subject to a suspicionless search as would a parolee under Knights. Grabber calls for an en banc to recognize the distinction.

U.S. v. Dugan, No. 08-10579 (9-20-11) (Graber with O'Scannlain and Bea).

The 9th rejects a Second Amendment challenge under Heller to the offense prohibiting an unlawful user or addict of controlled substances from possessing a firearm under 922(g)(3).

Case o' The Week: Baker Effort Undercooked, Needs Trip to En Banc Oven -- Fourth Amendment and Probation Conditions

2011-09-25T13:17:00.000-07:00

Judge Susan Graber (right) is often a tough draw for a criminal defendant on appeal. See blog collections involving Judge Graber here.

She is also no radical when it comes to the Fourth Amendment. See generally, United States v. Crapser, 472 F.3d 1141 (9th Cir. 2007) (Graber, J., affirming warrantless hotel search over Judge Reinhardt's vigorous dissent).

So, when Judge Graber worries that "suspicionless" search conditions for probationers have finally crossed the Fourth Amendment line, and warns that the Ninth should go en banc to review its authority in light of Supreme Court jurisprudence, her call to action should sound alarm bells. Baker, the subject of this "Case o' The Week" post, should go en banc. United States v. Baker, 2011 WL 4359923 (9th Cir. Sept. 20, 2011), decision available here.

Players: Hard-fought case by Bay Area private counsel Jay Nelson and Ethan Balogh. Decision and concurrence by Judge Graber.

Facts: Baker was a passenger in a car during a high-speed chase. Id. at *1. When ultimately stopped, cops found 10 grams of meth in the car. Id. Baker was nonetheless charged with over fifty grams of meth, a mand-min felony. Id. At trial, cops testified that they saw a “snowstorm” of meth thrown out of the car as it fled. Id.

In a great trial victory, Mssrs. Nelson and Balogh beat the felonies and Baker was convicted of misdemeanor possession. Id. Over defense objection, ND Cal DJ Breyer imposed a “suspicionless search” condition on Baker’s term of probation. Id. at *2.

Issue(s): “Defendant challenges the probation condition that permits a suspicionless search:

The defendant shall submit his person, property, place of residence, vehicle and personal effects to search at any time of the day or night, with or without a warrant, with or without probable cause, and with or without reasonable suspicion, by a probation officer or any federal, state, or local law enforcement officer. Failure to submit to a search may be grounds for revocation. The defendant shall warn any residents that the premises may be subject to search.

Id. at *3.

“The government argues that it has a strong interest in protecting the public and that, as a probationer, Defendant has a reduced expectation of privacy and an increased risk of recidivism. Accordingly, the government argues, a suspicionless search condition does not violate the Fourth Amendment. Defendant counters that, although he has a reduced expectation of privacy, it is not reduced so much that a warrantless search, on the basis of no suspicion whatsoever, is reasonable. Defendant points out that he was convicted of a relatively minor misdemeanor drug offense and that the government's interest in protecting the public is therefore less than, for instance, the government’s interest in supervising a convicted violent felon.” Id. at *4.

Held: “We are bound by precedent to agree with the government. In Samson, . . . the Supreme Court held that a suspicionless search of a parolee does not violate the Fourth Amendment. Since that case was decided, we have applied our rule that there is no constitutional difference between probation and parole for purposes of the fourth amendment. . . . Because a suspicionless search of a parolee does not violate the Fourth Amendment, . . . and because our precedent dictates that there is no constitutional difference between probation and parole for purposes of the fourth amendment, we must conclude that a suspicionless search of a probationer does not violate the Fourth Amendment.” Id. at *4 (quotations and internal citations omitted).

Of Note: In a persuasive concurrence, Judge Graber urges that this case should go en banc. As she correctly explains, a parolee is not identical to a probationer for the Fourth Amendment analysis.“The Supreme Court has not addressed the question left open in Knights and raised here: whether a suspicionless search condition imposed on a probationer violates the Fourth Amendment.” Id. at *8 (Graber, J., concurring).

As noted above, Judge Graber is not traditionally viewed as a defense ally and her en banc suggestion should carry particular weight. See id. at *9 (“[T]his court’s continued reliance on the proposition that there is no difference between parolees and probationers in this context directly contravenes the Supreme Court’s clear statements in Samson and, critically, forecloses our ability to resolve that significant question on its merits. We should convene en banc so that we can correct our mistaken continued application of the Motley rule.”)

How to Use: Preserve the objection conditions of probation that impose suspicionless searches: an en banc petition is certain – review, likely.

For Further Reading: For the first time in a long time, the Ninth has lost an active judge: the Honorable Pamela Ann Rymer (left) passed away last week. See article here.

Judge Rymer was appointed to the Ninth by President H.W. Bush in ‘89, after being bandied against Justice Kennedy for the Supremes. For a retrospective of Judge Rymer’s criminal law decisions, see collection here.

While the defense often disagreed with Judge Rymer's positions, she was an engaged jurist and an elegant legal writer. As we observed in our '08 summary of the Zavala/Carty en banc decision, "Judge Rymer’s concise, bullet-point distillations of the Supreme Court’s sentencing morass are clear and well-written; they will be the Ninth’s hornbook for post-Booker sentencing practice. . . . If a Ninth Circuit defense counsel reads only one thing on federal sentencing, it should be Carty." See blog here.

Image of the Honorable Susan Graber from http://www.id.uscourts.gov/distconf08/photos/slides/Judge%20Susan%20Graber%20.JPG Image of the Honorable Pamela Rymer from http://nh.tributes.com/show/Pamela-Rymer-92390242

Steven Kalar, Senior Litigator N.D. Cal. FPD Website at www.ndcalfpd.org

.

2011-09-21T08:46:00.000-07:00

U.S. v. Baker, No. 10-10223 (9-20-11) (Graber with Silverman and Lynn, D.J.).

U.S. v. Dugan, No. 08-10579 (9-20-11) (Graber with O'Scannlain and Bea).

The 9th rejects a Second Amendment challenge under Heller to the offense prohibiting an unlawful user or addict of controlled substances from possessing a firearm under 922(g)(3).

U.S. v. Ibarra-Pinot, No. 10-50341 (9-20-11) (Bolton, D.J., with Ikuta; concurrence by Kozinski).

The defendant argued that he should have gotten a duress defense instruction. He presented evidence of threats to him and his family that unless he drove drugs across the border, he or they would be hurt or killed. He also presented evidence that the threat would be carried out. However, the trial court found that he did not present evidence on the third element, that he did not have a reasonable opportunity to escape the harm. The 9th affirmed the court. In a comprehensive opinion on the duress defense, the 9th parses the evidence, and explains that the defendant was allowed to present evidence, but he failed to show that he could not reasonably have sought help from the police, or authorities. In a concurrence, Kozinski would have sidestepped the discussion whether the court could have precluded the defense before trial, which he finds a difficult issue.

Habibi: Civil “Aggravated Felony” Definition Clashes With Supreme Court Rules Interpreting The Same Statute

2011-09-20T17:40:00.000-07:00

On September 14, 2011, the Ninth Circuit decided in Habibi how long it takes for a year to elapse, holding that “one year” in the “aggravated felony” statute takes less time than an astronomical year. Even though the decision was made in a civil context, defenders will need to be aware of the ways in which this decision, which potentially increases the punishment for our § 1326 clients, clashes with the Supreme Court’s rules for construing the “aggravated felony” statute in Leocal and Lopez. The Ninth Circuit appears to be recapitulating its analytical error – eventually reversed by the Supreme Court – of giving different treatment to prior convictions in civil and criminal settings. Governing Supreme Court authority should foreclose application of Habibi in the criminal context.

In Habibi, Judge Bybee determined that the alien’s 365-day misdemeanor sentence, in the civil deportation context, met the definition of “aggravated felony” under 8 U.S.C. § 1101(a)(43). The statute designates as an “aggravated felony” “a crime of violence....for which the term of imprisonment is at least one year.” The Habibi panel established that, as a matter of scientific fact, a year elapses in about 365.2524 days. Relying on pre-Leocal Ninth Circuit authority – and never mentioning Leocal at all – the court deferred to the immigration agency’s informal reading of the statute. Science just seemed too inconvenient: “Because taking the intricacies of astronomy into account would needlessly complicate this area of law, we adopt the [Board of Immigration Appeals]’s definition.”

Not so fast: doesn’t this analysis run directly contrary to the Supreme Court’s construction of “aggravated felony” in Leocal and Lopez? In Leocal, Chief Justice Rehnquist analyzed § 1101(a)(43) in deciding whether drunk driving constituted an “aggravated felony.” In holding that the statute did not extend to drunk driving, the Court appears to have provided three reasons that Habibi’s reasoning is fundamentally flawed and that earlier precedent based on immigration agency convenience has been superseded by intervening Supreme Court authority.

First and most basically, the Supreme Court in Leocal’s footnote 8 articulated the principle that, because “aggravated felony” has criminal consequences also, any ambiguity must be resolved based on the rule of lenity: “Because we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.” Given the reality-based length of a year, any ambiguity the Habibi court faced should have been resolved with a finding the 365 days is less than a year. A year may be only .2524 days more, but 365 days is not a year.

Second, the Leocal opinion emphasized that construction of the statute should be informed by the term ultimately being defined, in that case “crime of violence.” Just as the natural meaning of that term would not encompass drunk driving, the term “aggravated felony” does not naturally include Mr. Habibi’s misdemeanor conviction. Although the Habibi court noted that the federal standard could trump the state description of the offense, at the very least, the term being defined militates against treatment of a 365-day misdemeanor sentence as an “aggravated felony.”

Third, the Leocal opinion is notable for providing no deference to the immigration agency’s position. Quite properly, the Court treated the matter strictly as judicial interpretation of the statutory term. Given the potential criminal consequences, basic separation of powers values militate against deference to the Executive in a manner that expands the punishment for criminal conduct. Instead of narrowly construing a penal statute, the Habibi panel decided the case as if administrative convenience is the deciding factor. And what’s so inconvenient about defining a year as 365.2524 days?

For those who remember the Ninth Circuit’s internal split over treatment of simple drug possession as an “aggravated felony,” Habibi is like deja vu all over again. In Ibarra-Galindo, back in 2000, the court through Judge O’Scannlain held that, in a criminal case, simple possession constituted “illicit trafficking,” which included “drug trafficking offenses” if the state treated possession as a felony. Judge Canby dissented, facing down the majority and six other circuits, in reliance on a common sense reading of the statute and, in the alternative, the rule of lenity. Six years later, in Cazarez-Gutierrez, Judge Betty Fletcher wrote for the court that, in the civil deportation context, simple possession was not an aggravated felony. As a result, the same statutory words meant different things depending on their use in criminal or civil context, and, oddly enough, the harsher interpretation applied to criminal punishment.

Finally in late 2006, the Supreme Court in Lopez resolved the nationwide conflicts by holding that simple drug possession was not included as an “aggravated felony,” largely for reasons foreshadowed in Judge Canby’s Ibarra-Galindo dissent. Justice Souter, writing for all but Justice Thomas, started the opinion by describing the “aggravated felony” provision as involving both criminal and civil consequences. In contrast, the court in Habibi refers only to the consequence of removal – there is no reference to the effect on criminal sentencing. The Habibi court’s failure to recognize that there can be only one statutory definition, and that definition applies in both civil and criminal contexts, appears to be inconsistent with the Lopez methodology. The omission is also inconsistent with Figueroa-Ocampo, in which the Ninth Circuit recognized that Lopez necessarily overruled Ibarra-Galindo’s different interpretation in the criminal context: “Given the Supreme Court's discussion of the shared definition of ‘aggravated felony’ under the [Immigration and Nationality Act] and the Sentencing Guidelines, the Court's reference to Ibarra-Galindo and Cazarez-Gutierrez, and the Court's interpretation of the INA term ‘aggravated felony’ adopted by the Guidelines, it is beyond dispute that Lopez applies in both criminal sentencing and immigration matters.”

Justice Souter also followed the Leocal lead in focusing on the “commonsense conception of ‘illicit trafficking,’ the term ultimately being defined.” In Lopez, the Court cited to Leocal in objecting to turning “simple possession into trafficking, just what the English language tells us not to expect.” Again in Lopez, as in Leocal, the Court indicated no reliance on the agency interpretation of the statute. In Habibi, the natural reading of “aggravated felony,” unmediated through the Executive agency, militates against treating a 365-day misdemeanor sentence as a qualifying conviction.

While the Lopez and Leocal litigation involved large numbers of clients who suffered years of over-incarceration, the number of defendants potentially affected by Habibi is undoubtedly much smaller. But for clients facing sharp increases in sentencing exposure based on 365-day sentences, we should be prepared to litigate the position that a year means a real year in the criminal context, asserting that Habibi’s failure to address Leocal and Lopez invalidates its precedential effect under the criminal statute and guidelines. And we should be vigilant in looking critically at all civil immigration cases that, while failing to apply the narrowing rules of construction for penal statutes, construe immigration statutes broadly, thereby increasing the potential level of criminal punishment.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Case o' The Week: Tinker, Taylor, Soldier, Spy -- Tafoya-Montelongo and Sex Crimes as "Crimes of Violence"

2011-09-17T06:09:00.000-07:00

If a prior sex state conviction does not qualify as a guideline "crime of violence," an illegal reentry defendant could be looking at less than two years of custody. If the prior does qualify, however, the guideline range trebles and the alien could be looking at over six years.

That's exactly what happened in Tafoya-Montelongo, a new Ninth Circuit decision that undertakes a modified categorical analysis and holds that a Utah attempted sex offense qualifies as a "crime of violence." United States v. Tafoya-Montelongo, 2011 WL 4060586 (9th Cir. Sept. 14, 2011), decision available here.

A disappointing decision for our skyrocketing number of federal illegal reentry defendants (see chart of Section 1326 prosecutions as a function of administration, above).

Players: Decision by Sr. DJ Mills, joined by Judges W. Fletcher and N. Smith.

Facts: Tafoya-Montelongo pleaded guilty to illegal reentry after a preliminary PSR put his range at 15-21 months. Id. at *2. The final PSR came back at 63-78 months, after Probation came up with a 16- level specific offense adjustment for a prior Utah conviction for attempted sexual abuse of a child. Id. Tafoya-Montelongo was sentenced (after a variance) to 52 months. Id. at *2.

Issue(s): “Tafoya-Montelongo . . . only challenges the 16-level enhancement, arguing that his conviction for attempted sexual abuse of a minor is not a ‘crime of violence.’” Id. at *2.

Held: “Tafoya–Montelongo’s assertion that his conduct was ‘not abuse under the federal generic definition,’ but merely ‘self-gratification,’ is without merit because of the age of the victim. Because he attempted to engage in sexual conduct with a girl under the age of 14, his conduct was per se abusive under one of the generic federal definitions of ‘sexual abuse of a minor.’ Having determined that the conviction satisfies one of the definitions, we need not address whether it also meets the other . . . After considering the state court records, we conclude that Tafoya–Montelongo’s conviction for attempted sexual abuse of a child qualified as a ‘crime of violence’ under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district court committed no error, plain or otherwise, in applying a 16–level enhancement. . . in calculating [the] guideline range.” Id. at *5 (footnote omitted) (citations omitted).

Of Note: The narrow issue before the en banc court in the recent Aguila Montes de Oca (“AMdO”) case was whether California burglaries qualify as “crimes of violence” under the illegal reentry guideline. See AMdO blog entry here. The big-ticket issue, however, was whether the district court are permitted to rummage about and find facts to patch state convictions that were missing elements of generic federal crimes. The (formerly great) Navarro-Lopez rule prohibited that approach.

When the recent Aguila en banc decision eliminated Navarro-Lopez, federal defense folks quickly began worrying about sex priors. Many state sex statutes are missing elements of the generic federal definition; under the old Navarro-Lopez rule those state crimes didn’t count as “crimes of violence.” See generally Castro blog entry here.

(Interestingly, Judge W. Fletcher’s was on both the Tafoya-Montelongo panel and the AMdO en banc court. Prophetically, his only question at the Aguila en banc argument was how eliminating Navarro-Lopez would affect sex crimes).

Tafoya-Montelongo is an aftershock of the Aguila Montes de Oca quake, is laced with Aguila cites, and recites the modified categorical approach described in Aguila to find that this Utah sex-with-a-minor offense qualifies as a crime of violence. While it isn’t clear from this terse opinion whether this Utah sex statute was missing an element of the generic federal offense, or that the case would have been decided differently if Navarro-Lopez still existed, Tafoya-Montelongo and AMdO generally bode ill for our efforts to fight state sex convictions as federal generic crimes of violence.

How to Use: Tafoya-Montelongo teaches the importance of specific PSR objections to dodge plain error review. In the district court Tafoya-Montelongo objected to the PSR’s sixteen level specific adjustment for the sex prior. Id. at *3. The objection, however, wasn’t to whether the prior actually qualified, but to the shifting calculations between the preliminary and final PSRs. Id. This wasn’t specific enough: “Because Tafoya-Montelongo did not argue below that his conviction for the attempted sexual abuse of a minor did not qualify as a crime of violence, we review the issue for plain error.” Id.

For Further Reading: Last year we reported on a dias infaustus - the regrettable Ressam decision reversing a twenty-two year sentence because it was "unreasonable" (i.e., "too short!") See Ressam blog entry here.

Next week the case gets another look en banc – with a panel of CJ Kozinski, and Judges Schroeder, Reinhardt, Graber, McKeown, Wardlaw, Paez, Berzon, Clifton, Bybee, and Murguia. See Ninth Circuit en banc report here.

Graph of illegal reentry prosecutions as a function of Presidential administration from http://trac.syr.edu/immigration/reports/251/

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

.
.

2011-09-14T11:40:00.000-07:00

U.S. v. Ruiz-Apolonio, No. 10-50306 (9-14-11) (Wardlaw with B. Fletcher and Kavanaugh, Cir.).

In a 1326 appeal, the 9th holds that forcible rape under California Penal Code 261(a)(2) is categorically a "crime of violence" under the Guidelines.

U.S. v. Ayala-Nicanor, No. 10-50069 (9-14-11) (Wardlaw with Goodwin and Cogan, D.J.).

In a 1326 appeal, the 9th holds that willful infliction of corporal injury of a spouse under California Penal Code 273 is a categorical "crime of violence" under the Guidelines.

U.S. v. Tafoya-Montelongo, No. 10-10177 (9-14-11) (Mill, D.J., with W. Fletcher and N. Smith).

In a 1326 appeal, the 9th considered whether the defendant's conviction for attempted sexual abuse of a child under Utah Code 76-5-404.1 is a" crime of violence" under the Guidelines. The 9th finds that the Utah Code is overbroad, but using a modified categorical approach, and examining the plea agreement, finds that the acts constitute a crime of violence. The +16 adjustment is affirmed.

Trigueros v. Adams, No. 08-56484 (9-14-11) (M. Smith with D. Nelson and Bybee).

The 9th reverses a denial of a habeas petition for untimeliness. The 9th finds that the California Supreme Court's consideration of the petitioner's pro se writ, request for informal briefing by the state, and the subsequent denial of the petitioner's writ, can be considered a finding of timeliness by the state.

2011-09-13T11:55:00.000-07:00

Reina-Rodriguez v. U.S., No. 08-16676 (9-13-11) (Thomas with B. Fletcher and Gertner, D.J.).

The 9th remands for re-sentencing through the lens of U.S. v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc). In Grisel, courts must use a modified categorical approach to determine whether a "dwelling" in a Utah burglary statute meets the Guidelines' definition of a dwelling. Here, Grisel applies retroactively, and the court must use the information and judgment to see whether the defendant's Utah burglary conviction qualifies as a burglary of a dwelling. The court cannot conduct its own sua sponte investigation into public documents.

U.S. v. Alvarez-Moreno, No. 10-10045 (9-13-11) (Berzon with Paez and Bea).

In this interesting, albeit rare, double jeopardy issue, the 9th considers whether a court after a bench trial can order a new trial absent a defendant's motion under Fed. R. Crim. P. 33 where the defendant had not properly waived his right to a jury trial in the first place. The defendant and the government set this case for a bench trial (alien smuggling) and the trial proceeded before it was recognized, after verdict, that the defendant had not formally waived his right to a jury trial. Defense counsel moved to vacate but did not ask for a new trial. The district court recognized the error and cut to the chase with a new trial order. Alas, cutting to the chase meant clearing procedural and constitutional hurdles which trips up the order. Double jeopardy attached with the verdict. It is up to the defendant to move for a new trial, or he can appeal (in which case the case will likely be remanded for a new trial). Alternatively, the defendant can decide to just accept the verdict. It is up to the defendant. The case is remanded.

Rossum v. Patrick, No. 09-55666 (9-13-11) (Per curiam opinion with D. Nelson and Reinhardt; dissent by Gertner, D.J.).

The 9th finds that the Supremes' decision in Pinholster, 131 S. Ct 1388 (2011) controls. Gertner dissents, arguing that Strickland's IAC test, and the evidence before the state court, supported the prior opinion's remand for an evidentiary hearing.

Case o' The Week: The Great Santini - Evidentiary Limitations on Gov't Experts

2011-09-11T08:07:00.000-07:00

There's many reasons to hate government experts in criminal trials. Close to the top of the list is the old trick of smuggling radically-inadmissible evidence into trial, disguised as a "basis" for the government expert's opinion. Federal defense attorneys hate this gambit.

Turns out the Great Santini is no fan, either. United States v. Santini, 2011 WL 3930078 (9th Cir. Sept. 8, 2011), decision available here.

Players: Big win by San Diego Ass’t Fed. Defender Zandra Lopez. Per curiam decision by Judges B. Fletcher, N. Smith, and District Judge James Gwin.

Facts: Santini was caught crossing the Mexican border with 28 kilos of marijuana hidden in his car. Id. at *1. At trial Santini argued that he’d been tricked: someone else had hidden the drug in his car without his knowledge. Id. The defense argued that Santini was easy to manipulate because he had suffered a traumatic brain injury in ‘05 – a defense shrink explained that this type of injury can cause difficulty with “social perception of other people.” Id. at *1.

The government’s shrink, Dr. Mark Kalish, disagreed, asserting that Santini’s rap sheet showed “extensive prior contacts with law enforcement” before 2005. Id. Dr. Kalish opined that if the current charges were related to the ‘05 brain injury, one wouldn’t expect to see this “similar behavior” before the accident. Id. “The defense objected to the admission of Dr. Kalish’s testimony regarding the rap sheet” and challenged “that testimony on appeal.” Id.

Issue(s): “The government argues that Santini’s criminal history was either admissible as evidence of his ‘state of mind’ under [FRE] 404(b) or could be introduced as the basis for Dr. Kalish’s opinion under [FRE] 703.” Id.

Held: 1. FRE 404(b): “We conclude that the testimony of a psychiatrist relating disputed information contained in a rap sheet, which was neither admitted into the record nor examined by the district court, was not evidence that could support a finding by the jury that Santini had ‘extensive’ law enforcement contacts. Dr. Kalish’s testimony on this matter was, thus, not admissible under Rule 404(b).” Id. at *2.

2. FRE 702 and 703: “[The government’s] argument fails for two reasons. First, expert testimony must satisfy the requirements of Rule 702, which provides that an expert’s opinion must be ‘based upon sufficient facts or data.’ Fed.R.Evid. 702. For the reasons outlines above, the rap sheet was not sufficient to form the basis of Dr. Kalish’s opinion that Santini had engaged in ‘similar’ criminal behavior prior to his brain injury . . . . Second, the statement that Santini had ‘extensive’ prior law enforcement contact was far more prejudicial than it was probative in assisting the jury to evaluate Dr. Kalish’s opinion . . . . It was an abuse of discretion for the district court to allow this testimony.” Id. at *3.

Of Note: This brief opinion is rich and dense, and deserves a close read whenever an expert appears on the government’s witness list. Of particular note is its FRE 404(b) analysis. Id. at *1-*2.

Too often, government experts are backdoor conduits to the wholesale admission of otherwise inadmissible testimony. “I relied on the information for my expert opinion,” has become the miracle sanitizer that redeems cruddy evidence and means evidentiary anarchy when a government expert takes the stand. In the great Santini, the panel rejects this trend of blind deference and scrutinizes the bases for Dr. Kalish’s expert opinion with the same vigorous FRE 404(b) analysis leveled against other, mere mortal witnesses.

“Abuse of discretion” reversals in government-expert cases are rare birds indeed: Santini should feature prominently our in limine filings and trial objections to government experts.

How to Use: Santini teaches that a government expert can’t be used to smuggle in inadmissible FRE 404(b) evidence. Another valuable lesson bears on FRE 702 and 703. Santini takes seriously the requirement that “otherwise inadmissible evidence” relied upon by a government expert must have a “probative value in assisting the jury to assess the expert’s opinion” that “substantially outweighs” the “prejudicial effect.” Id. at *2 (quoting FRE 703) (emphasis added).

This is a different, and more rigorous test than the vanilla FRE 401 and 403 requirements: remember to level this additional challenge when confronted by a government expert.

For Further Reading: There’s a big brouhaha brewing between Crawford and gang “experts.” For an interesting, practical, and recent article on this hot new issue, see Hon. Jack Nevin (left), Conviction, Confrontation, and Crawford: Gang Expert Testimony as Testimonial Hearsay, 34 SEATTLE U. L. REV. 857 (2011), available here.

Image of "The Great Santini" picture from http://www.impawards.com/1979/posters/great_santini.jpg

Image of the Honorable District Judge Jack Nevin from http://advocacytraining.blogspot.com/2011/04/confrontation-clause-and-gang-expert.html

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

.

2011-09-09T08:38:00.000-07:00

U.S. v. Santini, No. 10-50391 (9-8-11) (Per curiam with B. Fletcher, N. Smith, and Gwin, D.J.) The 9th reverses importation and possession with intent convictions and remands for a new trial. The defendant at trial argued that a traumatic brain injury made him easy to manipulate and he was unaware of the marijuana placed in his car. The government mental health expert opined that the defendant knew what he was doing, and that his prior "extensive contacts" with the police showed a similar behavior and behavior that predated the injury. On appeal, the 9th found that this was FRE 404(b) and 702 error. The prior contacts were not similar (simple possession, indecent exposure) and the reliability is questionable. Moreover, the expert strayed from his expertise in opining on a rap sheet, which he admitted was confusing. This testimony was also more prejudicial than probative. The error was prejudicial.

Congratulations to Zandra Lopez of the Federal Defenders of San Diego.

2011-09-07T13:05:00.000-07:00

U.S. v. Rodgers, No. 10-30254 (9-7-11) (McKeown with Schroeder; dissent by Callahan).

In this automobile search case, a warrantless search was invalid because it was premised simply on probable cause to arrest a passenger or because the passenger could not provide identification. The defendant here was stopped in a high crime area driving a car with a different paint color than was stated on the car's registration. The driver (soon to be defendant) explained he painted the car, but did not yet have the money to change the registration. This was not an offense. His driver's license was in order. His passenger, though, appeared very young -- 11 to 12 -- and not the 19 she said. She also gave a name that resulted in an outstanding warrant. However, there was nothing she said or did that indicated there was contraband in the car, or she was hiding something, or that there was a danger. The police searched anyway, and found drugs and guns. The 9th considered it a close question whether the car could even be stopped for reasonable suspicion, but sidestepped that issue to reverse denial of the suppression motion because there was nothing in the record to support a particularized search of the car for any contraband or evidence related to the reason to arrest the young female passenger. The 9th brushed aside the explanation that if the girl was 19, as she said, of course she would have had identification with her. Dissenting, Callahan argues that it was reasonable to assume that some identification was in the car. The identification could support prosecution for false statement to the officer or obstruction.

Sivak v. Hardison, No. 08-99006 (M. Smith with Kozinski and Thomas).

In this capital habeas arising from a felony-murder conviction of a store clerk, the 9th grants sentencing relief. The petitioner's due process rights were violated when the state used jailhouse informants who lied. One admitted he was a habitual liar on the stand; the other committed perjury as to the benefits he received for testifying. Each informant said that the petitioner was the triggerman and had been involved with the murder (there was a co-defendant). There was overwhelming evidence of the petitioner's involvement at the guilt phase, but the testimony was prejudicial at the sentencing stage. The 9th also held that the claim was not procedurally barred, and that the petitioner had raised the issue.

Congratulations to Bruce Livingston and Colleen Ward of Federal Defender Services of Idaho.

2011-09-07T08:45:00.000-07:00

U.S. v. Cisneros-Resendiz, No. 10-50521 (9-6-11) (Ikuta with Rymer and Tallman).

The 9th considers again prejudice from an IJ failing to provide information about potentially available discretionary relief from an entry of a removal order. This comes in the wake of U.S. v. Barajas-Alvarado, No. 10-50134, 2011 WL 3689244 (9th Cir. Aug. 24, 2011). The 9th focuses on the withdrawal of an application of admission. The 9th holds that there was no prejudice because the calibration on such discretion does not weigh equities, such as family or cultural ties, but "interests of justice" as to the causes of inadmissibility.

Ybarra v. McDaniel, No. 07-99019 (9-6-11) (Tallman with Silverman and Clifton).

The 9th affirms the denial of a petition seeking capital relief. The 9th finds error in dismissing a claim raising the issue of impartial jury because of failure to exhaust, but still does not grant relief. The 9th also finds error in finding a claim raising prosecutorial misconduct unexhausted. It was exhausted, but still no relief was forthcoming. The 9th denies relief on various IAC claims.

2011-09-06T09:09:00.000-07:00

Payton v. Cullen, No. 07-99020 (9-2-11) (Rymer with Gould and Rawlinson).

Relief was granted, and then taken away by the Supremes. Back to the district court for claims not addressed. The district court denied the claims. On appeal, the 9th dismissed the challenge to California's lethal injection protocol as premature. It affirmed denial of IAC, Brady, and cumulative error claims.

Case o' The Week: That (Apprendi) Dog Don't Hunt -- Harmless Error for Apprendi cases, Hunt

2011-09-04T16:24:00.000-07:00

Think "harmless error" analysis is the dry, technical domain of appellate wonks? Compare these two quotes:

"Today, a defendant who has consistently evaded responsibility for his criminal conduct is once again rewarded for his labors. And today, the public sees a criminal who has shown nothing but cruelty to his fellow citizens and contempt for the law escape a richly deserved sentence based on an irrelevant technicality."

United States v. Hunt, 2011 WL 3850555, *17 (O'Scannlain, J., dissenting) (9th Cir. Sept. 1, 2011).

"We are aware that Hunt has a less than stellar criminal record, but we reject the dissent's implicit suggestion that Hunt's criminal record should somehow influence our harmless error analysis."

Id. at *9 (majority decision, written by Judge Paez).

You'll have to Hunt hard if you Neder better example of how abstract legal principles can have a real-world impact. United States v. Hunt, 2011 WL 3850555 9th Cir. Sept. 1, 2011), decision available here.

Players: Decision by Judge Paez (above right), joined by Judge Beezer. Dissent by Judge O’Scannlain.

Facts: After cops discovered a FedEx package with a over kilo of cocaine they did a controlled delivery. Id. at *1. Hunt ended up with the package; he confessed when he was stopped. Id. at *2. Hunt was indicted for attempting to possess with intent to distribute over 500 grams of cocaine. Id.

At a later guilty plea, Hunt conceded that he tried to possess a controlled substance – with the caveat that he had no specific knowledge “of what [the package] contained.” Id. At sentencing Hunt argued that he had not conceded at his plea the type or amount of drug. Id. at *3. A detective then testified as to the amount in the box and opined that a buyer of large amounts of cocaine (such as a kilo) would specify the amount he wanted to purchase. Id.

Over defense objection, the district court found Hunt responsible for more than 500 grams of cocaine and sentenced him to 180 months (with an obstruction adjustment, an upward departure, and an upward variance thrown in). Id. at *4.

Issue(s): “Hunt appeals his sentence but not his conviction. He alleges that the district court erred under Apprendi v. New Jersey, 530 U.S. 466 . . . (2000), by sentencing him for attempted possession with intent to distribute an unspecified amount of cocaine even though he never admitted that he attempted to possess cocaine.” Id.

Held: “The district court erred under Apprendi in sentencing Hunt under section 841(b)(1)(C) because his maximum penalty increased from one year to 20 years in prison based on a fact – Hunt’s possession of cocaine – that Hunt never admitted and the government never proved beyond a reasonable doubt.” Id. at *6.

“[B]ecause Hunt contested the fact that the drug he intended to possess was cocaine and because the record evidence is far from overwhelming, we conclude that the Apprendi error in this case was not harmless . . . . Due to the Apprendi error, we are required to vacate Hunt’s sentence and remand for resentencing. We recognize that our ruling will result in a substantial reduction in Hunt’s sentence. On remand, the district court must resentence Hunt within the statutory range applicable given the facts that were admitted at the original change of plea hearing. . . . Without an admission to the type of drug involved in the offense or a waiver of his rights under Buckland and Apprendi, Hunt faces a maximum of one year in prison under 21 U.S.C. § 841(b)(3) . . .” Id. at *9.

Of Note: While defense folks were excited for a new Apprendi / Buckland / Thomas decision from the Ninth, Hunt is actually far more important for its second layer of analysis: harmless error. You’ll recall that Neder harmless error was the kryptonite to our Apprendi efforts back in the heady early days of this Sixth Amendment litigation. See, generally, United States v. Zepeda-Martinez, 470 F.3d 909, 913 (2006). In Hunt, Judge Paez undertakes a lengthy and rigorous review of harmless error – and after addressing each proffer of evidence, concludes that the government ultimately comes up short. Id. at *6-*9.

Judge O’Scannlain (above left) is (thoroughly) unpersuaded, and grumbles in dissent that the majority “promulgates a new rule for this circuit, essentially eliminating harmless error review of Apprendi violations.” Id. at *10 (O'Scannlain, J., dissenting).

Hunt-ing for en banc votes, Judge O’Scannlain probably exaggerates when he describes Judge Paez’s fact-specific holding as a “new rule” for the Ninth. Nonetheless, his point bears much emphasis: Hunt is now one of the precious few harmless error cases that favor the defense, and deserves a close read and heavy citation.

How to Use: This defendant was sentenced to 15 years; he’ll serve one after appeal. How do we replicate that outcome? There are, sadly, some caveats.

As Judge Paez observes, the judge and AUSA could have simply been more precise during the plea colloquy and secured Hunt’s explicit admission of the type of drug he intended to possess. Id. at *9. And, if Hunt balked (as he did here), the AUSA could have demanded a Thomas bench trial to try to prove it. Id. (Though Judge Paez, intriguingly, discusses “proof beyond a reasonable doubt” “to a jury” in Hunt.) Id. at *6.

In sum, Hunt’s gambit is an interesting needle, but one that can be a tad tricky to thread.

For Further Reading: Hunt came down the same day as another Apprendi decision in the Eight Circuit. The good Prof Berman highlights the very different outcomes in these two cases, in his blog here.

Image of the Honorable Richard Paez from http://lawweb.usc.edu/news/article.cfm?newsID=1121

Image of the Honorable Diarmuid O’Scannlain from http://www.timesofmalta.com/articles/view/20110411/local/american-judge-invites-maltese-lawyers-to-view-speedy-trial-act.359282

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndaclfpd.org

.

2011-09-01T16:45:00.000-07:00

U.S. v. Hunt, No. 09-30334 (9-1-11) (Paez and Beezer; dissent by O'Scannlain).

The defendant plead guilty to attempt to possess a controlled substance with intent. At the plea colloquy, the amount or type was not made clear; neither was the specific knowledge required for attempt. This resulted in Apprendi error. It was not harmless because the defendant had always disputed the amount supposedly involved. His sentence is reduced from 15 years to 1 year. Dissenting, O'Scannlain scoffs at the result, complaining that the majority has effectively gutted any harmlessness in an Apprendi analysis. He argues that evdience overwhelmingly shows that the defendant intended to possess cocaine and distribute it.

U.S. v. Lafley, No. 10-30132 (9-1-11) (Thomas with D. Nelson and Graber).

The 9th upholds a SR restriction barring use of marijuana against a challenge under the Religious Freedom Restoration Act. The government had a compelling interest.

Jackson v. Ryan, No. 10-15067 (9-1-11) (Gertner, D.J., with B. Fletcher and Thomas).

The 9th finds error in a felony murder instruction. The matter is remanded for the court to consider AEDPA and IAC issues in light of the finding.

2011-08-30T13:50:00.000-07:00

U.S. v. Crowder, No. 10-30125 (8-30-11)(Ikuta with Tashima and Bea).

The 9th holds that the government need not prove that a defendant knew that SORNA itself imposed a sex offender registration requirement. The government still must prove that the defendant knew of a registration requirement and knowingly failed to register, but not that he specifically knew of SORNA's "as required by" language. The 9th joins all the other circuits in this interpretation.

Case o' The Week: The Pursuit of Prejudice - Barajas-Alvarado and Due Process Challenges to Expedited Removals

2011-08-28T12:40:00.000-07:00

What's not to like about Judge Ikuta's important new decision for illegal reentry prosecutions? In a question of first impression, she holds in Barajas-Alvarado that when used as a basis for a Section 1326 prosecutions "expedited removals" must be subject to due process attack to pass constitutional muster. Given this great new rule, nothing now stands between us and winning motions to dismiss illegal reentry indictments.

(Nothing, that is, save "prejudice.")

United States v. Barajas-Alvarado, 2011 WL 3689244 (9th Cir. Aug. 24, 2011), decision available here.

Players: Big win for Ass't Federal Defender James Chavez, Federal Defenders of San Diego.

Facts: Barajas-Alvarado, an alien, was removed from the U.S. to Mexico several times via “expedited removal.” Id. “Expedited removal proceedings provide a streamlined process by which U.S. officers an remove aliens who attempt to gain entry to the United States but are not admissible.” Id. at *1 & n.1.

After he was later caught trying to enter again, with fake immigration docs, Barajas-Alvarado was charged with attempted illegal reentry. Id. The defense challenged the government’s reliance on the expedited removal orders as a basis for the §1326 charge; the district court rejected that challenge. Id. at *2. Barajas-Alvarado entered a conditional plea.

Issue(s): “Barajas–Alvarado claims that: (1) the Immigration and Naturalization Act . . . precludes any meaningful judicial review of an expedited removal order, including review of a collateral challenge to such an order in a § 1326 action; (2) under Mendoza–Lopez, some meaningful review of the order is constitutionally required before the order can be used as a predicate to a criminal proceeding; and therefore (3) because the statute precludes review, expedited removal orders cannot be used as predicates in § 1326 prosecutions.” Id. at *2 (citation omitted).

Held: “To convict an alien criminal defendant of illegal reentry under 8 U.S.C. § 1326, the government must prove that the alien left the United States under order of exclusion, deportation, or removal, and then illegally reentered. In . . . Mendoza–Lopez, the Supreme Court held that a criminal defendant has a Fifth Amendment right to 'some meaningful review' of a prior administrative proceeding that resulted in the exclusion, deportation, or removal order used as a predicate to a § 1326 offense. . . . Here, we conclude that Barajas–Alvarado was entitled to judicial review of the predicate expedited removal orders underlying his § 1326 prosecution but failed to show any prejudice resulting from the alleged procedural flaws in the proceedings that resulted in those orders. We therefore affirm the district court’s denial of Barajas–Alvarado’s motion to dismiss his indictment . . . .” Id. at *1 (footnote omitted) (citation omitted).

Of Note: U.S. citizens have due process rights. Aliens lawfully admitted to the U.S. have due process rights. Do non-admitted aliens have due process rights, when charged with a criminal case here in the U.S.? Seems like a no-brainer: if we’re going to incarcerate someone, lawful alien or no, surely that defendant should be afforded the due process of law?

Remarkably, this seems to be an unresolved issue. The author of this opinion, Judge Ikuta, does a little riff on this question; she notes that the government doesn’t argue the point so the Court does “not address this question.” Id. at 4 & n.8. Thankfully, for over a decade the Ninth has consistently assumed that non-admitted aliens should be afforded full due process rights – an assumption that continues in this Barajas-Alvardo decision. Id.

How to Use: The new rule of Barajas-Alvarado is that expedited removals can be used as a basis for § 1326 prosecutions, but are now subject to due process attack. Id. at *8-*9. Indeed, in this case there was a glaring due process problem: the removal proceedings were not fully translated into Spanish! Id. at *8. There is, sadly, a hitch: prejudice. Like “traditional” challenges to removals in illegal reentry prosecutions, an alien subjected to expedited removal must show that he suffered prejudice from the due process violation. Id. at *9.

Here, Barajas-Alvarado stumbles because he could not show that he was entitled to withdraw his application for admission (“withdrawal relief”); he did not, therefore, suffer prejudice. Id. For § 1326 cases based on expedited removals, take a close look at Judge Ikuta’s grappling with the defendant’s prejudice showing in this case. Id. at *8-*11. On slightly different facts, an alien might have a shot of making a “plausible showing” that he was entitled to “withdrawal relief.”

For Further Reading: For a useful summary of expedited removals see David Isaacson, Can Some Returning Nonimmigrants Challenge An Expedited Removal Order in Court? How Recent Case Law May Provide a Window of Opportunity, available here.

Image of U.S. Flag and fence from http://www.acslaw.org/acsblog/node/15775

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

.

2011-08-26T11:45:00.000-07:00

U.S. v. Barajas-Alvarado, No. 10-50134 (8-24-11) (Ikuta with Rymer and Tallman).

The 9th holds that courts must conduct some "some meaningful review" of an expedited removal order being used as a predicate for a 1326 criminal prosecution. The defendant here was facing a 1326 charge, with the expedited removal order being used to show that he had been removed. He sought to challenge, alleging its unconstitutionality for lack of a court being able to assess its fairness. The 9th wrestles with the issue, especially because Congress barred judicial review. The 9th holds that there has to be some review, and adopting the Mendoza-Lopez standard, requires some meaningful review, although limits the review to determining whether the removal proceeding was "fundamentally unfair because it violated the alien's due process rights and resulted in prejudice." On the facts here, the defendant comes up short, since the immigration officers, the 9th finds, would not have exercised discretion to allow him to withdraw his admissibility application.

A "meaningful" congratulations to James Chavez of the Federal Defenders of San Diego for securing the principle of "some meaningful review."

U.S. v. Matus-Zayas, No. 09-10294 (8-24-11) (Rawlinson with B. Fletcher and Tallman).

If a court is going to let the government admit a witnesses' deposition at trial, the government must offer some evidence of the witnesses' unavailability. Here, in this alien smuggling case, the government introduced material witnesses' depositions but failed to show why they were unavailable. This was error. However, the defendant did not show that the witnesses were available; nor did the defendant object or raise a confrontation challenge. The error was without prejudice.

2011-08-22T12:05:00.000-07:00

U.S. v. Parker, No. 10-50248 (8-22-11) (Per curiam with B. Fletcher, Wardlaw and Kavanaugh, D.J.).

Why did the defendant cross the road? To protest, of course. The military on Vandenburg Air Force Base issued a "barment" letter when the defendant refused to relocate his protests from Ocean Avenue, a public road that crosses the base, to an area outside the base's main gate. This did not stop the defendant, who continued his protests. These 18 USC 1382 misdemeanors followed. On appeal, the 9th reversed, holding that 18 USC 1382, prohibiting entry onto a base, requires that the government have absolute ownership or exclusive possession of the property. The road here, Ocean Avenue, is a public one, with the county and the military each having concurrent jurisdiction. The government argues that such exclusive ownership is not required, but the circuit precedent bars such a position. Since the defendant was always on the public road's easement, his protest activities cannot violate 1328.

Congratulations to AFPD Jim Locklin of the FPD Central District of Calif. (Los Angeles).

U.S. v. Clements, No. 09-10034 (8-22-11) (Per curiam with O'Scannlain, Rawlinson, and Bea; dissent by O'Scannlain).

The defendant was convicted of a SORNA violation for failing to register as a sex offender on February 15, 2008. The 9th reverses and remands for dismissal of the indictment because of U.S. v. Valverde, 628 F.3d 1159 (9th Cir. 2010). In Valverde, the 9th held that SORNA's registration requirements did not become effective until August 1, 2008, because the AG's interim regulations failed to comply with the APA. O'Scannlain acknowledges the precedent, but points out that the Supreme Court had taken cert in Reynolds v. U.S., 131 S. Ct 1043 (2011), to resolve this circuit split as to retroactivity. The government moved to stay this appeal until the decision, but its motion was denied. O'Scannlain therefore dissents from the denial, arguing that the Court will settle the issue.

Case o' The Week: The Past Isn't Prologue - Dougherty and Probable Cause for Child Porn Searches

2011-08-19T15:51:00.000-07:00

You could predict exactly how Judge N.R. Smith would vote on an issue of first impression -- involving probable cause to search for child porn -- based solely upon the knowledge that his background is in civil law, and knowing that he was a prominent Republican appointed to the Ninth by President W. Bush.

You would, however, be wrong. Dougherty v. City of Covina, 2011 WL 3583404 (9th Cir. Aug. 16, 2011), decision available here.

Players: Well-written decision by Judge N.R. Smith (above right), joined by Judge B. Fletcher. Dissent by District Judge Brewster.

Facts: Teacher Doughery was accused of inappropriately touching several students. Id. at *1. This prompted a cop to seek a search warrant; in the application, the cop described his own experience working on sex crimes. Id. The cop then opined, “based upon my training and experience . . . I know subjects involved in this type of criminal behavior have in their possession child pornography.” Id.

The search warrant issued, Dougherty’s computer was searched, nothing was found, and Dougherty filed a § 1983 claim. Id. at *2. The district court dismissed his complaint, finding the warrant supported by probable cause. Id.

Issue(s): “[W]hether evidence of child molestation, alone, creates probably cause for a search warrant for child pornography.” Id. at *4.

Held: “Under the totality of the circumstances, a search warrant issued to search a suspect’s home computer and electronic equipment lacks probable cause when (1) no evidence of possession or attempt to possess child pornography was submitted to the issuing magistrate; (2) no evidence was submitted to the magistrate regarding computer or electronics used by the suspect; and (3) the only evidence linking the suspect’s attempted child molestation to possess of child pornography is the experience of the requesting police officer, with no further explanation.” Id. at *1.

“If probable cause did not exist in [the Ninth Circuit's decisions in] Weber, it cannot exist here. In Weber, the affidavit included at least some direct evidence of the defendant’s possible possession of child pornography, including a two-year-old delivery of a catalog containing child pornography, an order from a fake catalog with image names suggesting child pornography, and general information regarding collectors, pedophiles, and molesters . . . . Here, by contrast, the affidavit includes only a three-year-old allegation of attempted molestation by one student and current allegations of inappropriate touching of and looking at students.” Id. at *4.

Of Note: In a question of first impression, Judge N.R. Smith guides the Ninth onto the right side of a circuit split. Id. at *4-*5. The Second, Sixth, and now the Ninth Circuits all reject molestation – without more – as PC for a search for child porn on electronic devices. The Eighth stands alone in tolerating this weak PC showing.

Knock wood that the Supreme Court lets this split percolate a bit – we don’t want to sweat the Fifth Vote on this Fourth issue.

How to Use: Be careful; this isn’t a bright line rule. Judge Smith hedges a bit at the end of the case, observing that “while the 'totality of circumstances' could, in some instances, allow us to find probable cause to search for child pornography, Officer Bobkiewicz’s conclusory statement tying this ‘subject,’ alleged to have molested two children and looked inappropriately at others, to ‘having in [his] possession child pornography’ is insufficient to create probable cause here.” Id. at *5 (emphasis added).

Mark well this “in some instances” caveat - this will be our next battlefield in the child porn, Fourth Amendment war.

For Further Reading: We’ve a brace of Smiths in the Ninth: Judge N. Randy, and Judge Milan (below left). Both men were civil attorneys with little exposure to federal criminal law before their Ninth gigs (though Judge N.R. Smith had been a state judge with criminal experience).

Both Smiths had deep ties to the Republican party before taking the bench.

Both Smiths were nominated by President W. Bush. See, e.g., article here.

And, both Smiths have been consistently open-minded to defense arguments on appeal. For example, both Smiths recently parted ways from Judge Bybee’s majority and joined Judge Berzon’s (effective) “dissent” in the recent Aguila Montes de Oca en banc case.

(Indeed, it was Judge Milan Smith who, in an earlier burglary case, planted the seed of doubt for California burglary that later grew into Judge Berzon’s opinion). See also, Rodriguez; see generally M. Smith blog entries here.

Those Aguila votes, and Judge N.R. Smith’s admirable Dougherty decision discussed in this post, illustrate the truth of our oft-repeated adage: 'tis always foolish to judge a judge by his or her cover.

Image of the Honorable N.R. Smith from http://georgewbush-whitehouse.archives.gov/infocus/judicialnominees/n-smith.html
Image of the Honorable Judge Milan Smith from: http://www.pasadenanow.com/_ArticleManager/publish/printer_5008.shtml

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

.

2011-08-19T11:34:00.000-07:00

U.S. v. Waters, No. 10-50256 (8-19-11) (Fisher with Pregerson and Berzon).

This concerns the interplay between retroactivity of the Guidelines crack reduction and career offender. "Interplay" may not be the right word; career offender "bullying" is more like it. The defendant was sentenced for crack cocaine. The court found he was a career offender, but his Guidelines were higher (what does that say about the crack/cocaine disparity?). Once the Commission reduced the crack offense level, and permitted retroactivity, the defendant argued that he should get the benefit. The district court did not grant it because the career offender was higher, and the retroactivity notes do not affect other operations of the Guidelines. The 9th agreed, and dismissed the appeal for jurisdiction. The 9th stressed that the district court had found previously he was a career offender, and that the application of the drug guidelines was really an application of the career offender guidelines because the greater sentence.

A Defender’s Guide To Sentencing And Habeas Advocacy Regarding Bureau Of Prisons Issues

2011-08-18T11:50:00.000-07:00

Based on years of litigation with the Bureau of Prisons, we have prepared a Guide posted here aimed at helping federal defenders provide the best representation for their clients both before and after sentencing. The tangle of sentencing statutes and BOP policies and practices can be daunting, but we need to be on top of the issues – including their history and litigation status – to advocate appropriately for the best presentence report, the best sentence, and – if all else fails – the best shot at successful habeas litigation.

The Guide reviews programs well known to all such as the Second Chance Act, the Residential Drug Abuse Program, and boot camp. We hope to provide another level of understanding of these areas for effective advocacy. For example: How do we use the BOP’s refusal to implement the Second Chance Act’s expansion of pre-release community corrections from six to twelve months at sentencing? What are the types of decisions at sentencing that might make a difference for RDAP eligibility? What is the current status of gun possession and prior conviction RDAP litigation? How can we use the BOP’s unilateral abolition of its once-great boot camp program to argue for a lower sentence based on the “kinds” of available sentences?

We also discuss the current litigation status and suggested practices for that most screwed up of federal sentencing areas, state and federal concurrent and consecutive sentences. For those facing the nightmare of the BOP’s unlawful “death rattle rule” for prisoners who have extraordinary and compelling reasons for second look resentencing, we have some ideas for legal challenges to the BOP’s rules. We have also updated information related to classification issues and habeas corpus procedures.

We hope the information in the Guide can provide a baseline for our federal advocacy related to BOP policies and practices. The Guide is easily searchable and can be linked as a Favorite right next to the BOP’s site. For those interested in the cost to taxpayers from the BOP’s failure to implement ameliorative statutes, the written testimony in 2009 to the House subcommittee on crime referenced in footnote 1 of the Guide is linked here.

The Guide can always be improved based on experience in the field. For defenders with ideas to add, please email us and let us know how we can make it better.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon