Case o' The Week: Viva the Apprendi Revolution! (Thirteen Years later . . . ) - Cortes and "Sentencing" Entrapment at Trial

 

Hon. Judge Barry Silverman

  In a welcome and important opinion, Judge Silverman explains the new term for “sentencing entrapment” after Apprendi.

   “Entrapment.”

   United States v. Cortes, 2013 WL 5539622 (9th Cir. Oct. 9, 2013), decision available here.

Players: Decision by Judge Silverman, joined by Judges Thomas and Fisher.

Facts: An undercover agent convinced Cortes to rob a (fake) stash house with “100 kilograms” of cocaine. Id. at *1. The agent bemoaned the (fictitious) cartel’s mistreatment of him, and explained that his drug boss had been sleeping with his wife. Id. at *2. Similarly cuckolded, and therefore sympathetic, Cortes allegedly coordinated a group of men to rob the stash house. Id. at *2. He was arrested, convicted, and sentenced to 20 years. Id. at *3. The district court denied Cortes’ request to instruct the jury on sentencing entrapment. Id. at *7.

Issue(s): “Cortes . . . argues that the district court erred in refusing to instruct the jury on sentencing entrapment, which is a separate affirmative defense to the quantity element of the drug charge under 21 U.S.C. § 841.” Id.

Held: “We have never held that sentencing entrapment is a jury question, but the Supreme Court’s precedent and our own make clear that it must be.” Id. at *8. “A criminal defendant is entitled to present his sentencing entrapment defense to the jury if the success of that defense would result in a lower statutory sentencing range. That is, if there is some foundation in the evidence that he would be subject to a lesser statutory minimum or maximum sentence if his sentencing entrapment defense were to succeed, the he is entitled to a jury instruction on that defense.” Id. at *9. “'Facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt.' Alleyne, 133 S. Ct. at 2158. Accordingly, we hold that sentencing entrapment must be tried to a jury where the defendant’s argument and the evidence raise the possibility of changing the applicable statutory maximum or minimum sentences.” Id. at *10.

Of Note: We in the defense bar have been arguing that “sentencing entrapment” should be a defense for the jury since Apprendi – and others felt similarly. (See United States v. Williams, 478 F.App’x 364, 366 (9th Cir. 2012)(Silverman, J., dissenting)). Two regrettable decisions – the Buckland en banc opinion in the Ninth, and the (now-overruled) Harris case in the Supremes – delayed what Judge Silverman now squarely holds is a righteous trial defense. Cortes is a must-read for those who defend federal drug crimes: by endorsing “sentencing entrapment” as a trial defense when mand-mins are involved, it opens up an entirely new realm of possibilities when defending these tough, high-exposure charges. Cortes is a good stash-house decision, but a seminal decision for the defense of federal drug cases.  

How to Use: Sparks from Cortes ignite two immediate and welcome changes. First, because confidential informants are so often central to the claim of sentencing entrapment, Cortes now pushes CI disclosure pretrial, to permit for adequate investigation and preparation for trial. Put differently, the Cortes sentencing entrapment defense now forces the government to deal cases on reasonable terms, or burn their snitches well before trial (while a defendant can still plead and snag two points for acceptance).  

  Cortes also now requires earlier Brady / Giglio disclosure. Dirt on the snitch is material impeachment evidence that goes to a trial defense: sentencing entrapment. Cortes instantly shifted the government’s Brady / Giglio disclosure burden far earlier, to the pretrial context. Modify discovery letters with a cite to Cortes and demands for early CI and Giglio disclosure: this brave new world of Apprendi defenses at trial presents new discovery frontiers ripe for exploration.

                                               

For Further Reading: In Cortes, Judge Silverman astutely observes that “following Apprendi, . . . ‘sentencing entrapment’ is a bit of a misnomer.” Id. at *7. Drug quantity is “an element of the offense,” “not a sentencing enhancement or factor,” so this variety of government coercion or enticement is now a straight-up entrapment theory cognizance at trial. Id. For a useful collection of authority on this defense, see the outline here.  

Image of the Honorable Judge Barry Silverman from http://www.law.asu.edu/News/CollegeofLawNews.aspx?NewsId=2482

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

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Case o' The Week: Novocaine OK, Cocaine Not So Much - Mancuso, Continuing Offenses, and Drug Distribution

“Mancuso was a dentist who distributed a lot more than free

toothbrushes to his friends and acquaintances in Billings, Montana.”

Great first line in a good new case on federal drug distribution. United States v. Mancuso, 2010 WL 1811276 (9th Cir. May 1, 2013), decision available here.

Players: Decision by Judge Bea, joined by Judge Clifton and DJ Mahan.

Facts: Mancuso was a dentist in Billings, Montana. Id. at *1. He was charged in one count (Count II) with distributing over 500 grams of cocaine, beginning in 2002 through 2009. Id. He was also charged with using his home and office as places maintained to distribute cocaine. Id. “Friends” and suppliers testified at trial about Mancuso buying and sharing cocaine over the seven years, in his home, office, and at bars and ski resorts Id. at *2. “I’ll buy and you fly,” was Mancuso’s motto: he would bankroll the cocaine and share it with those who purchased it for him. Id. at *2. Mancuso was convicted after trial, after having made an unsuccessful duplicity challenge to the distribution charges in Count II.

Issue(s): “Mancuso’s duplicity claim with respect to Count II, which charged him with a single continuing offense of distributing cocaine between . . .  2002 and . . .  2009 is much stronger. Unlike possession of controlled substances with intent to distribute, it is unclear whether actual distribution may be charged as a continuing offense. This circuit has never addressed directly whether distribution is a continuing offense, although other circuits have held that it is not.” Id. at *7.

Held: “We agree with the reasoning of the Second Circuit: separate acts of distribution of controlled substances are distinct offenses under 21 U.S.C. §b841(a), as opposed to a continuing crime, and must therefore be charged in separate counts. The government argues that charging all of the acts of distribution in a single count was permissible because these acts ‘could be characterized as part of a single continuing scheme.’ We disagree. Mancuso’s various acts of distribution to random friends and acquaintances, unassociated with each other in any venture or pursuit, over the course of several years and in various locations are not sufficiently related to justify charging him with one count alleging a continuing distribution offense, as opposed with distinct counts for each act of distribution. For these reasons, we vacate Mancuso’s conviction on Count II on the grounds that it was duplicitous.” Id. at *8.

Of Note: There’s a surprising number of issues in this sole-defendant case (and not all are as nicely resolved as this “continuing offense” claim). One good result is Judge Bea’s reversal for plain error when the jury wasn’t instructed that they must find a primary purpose of Mancuso’s residence and dentist office was to distribute drugs. Id. at *8-*9. It is an honest and robust reading of the requirements for a “maintaining a place to distribute cocaine” charge (21 U.S.C. § 856(a)(1)). Worth a close read in § 856(a) cases.  

How to Use: Judge Bea’s new rule is welcome. Most obviously, it prevents the government from insulating old distribution charges from a statute of limitation challenge by lumping the offenses together as a single-count “continuing offense.” In some cases, it may also permit the defense to “throw” a hopeless distribution count at trial, focus the fight on another distribution charge, hope for a compromise verdict, and try to get under a mandatory-minimum triggering amount. Of course, the new rule doesn’t apply to conspiracy charges, or RICO, or “possession with intent to distribute,” id. at *7, but any win in the drug context is a victory worth trumpeting.   

                                               

Steven Nolder, FPD SD Ohio

For Further Reading: Former SD Ohio Fed. Public Defender Steve Nolder recently fired himself to save staff from furloughs or lay-offs. Steve was recently featured on the Daily Show, as an example of the impact of sequestration. See video here.  Last week, another Federal Defender joined the ranks of the departed. Respected Missouri Defender Ray Conrad retired years early, to lessen the financial impact of sequestration on his staff. See article here. 

   Meanwhile, no federal prosecutor in the country will be furloughed. See article here. And Justice is spending $165 million to purchase a new federal prison (so more federal inmates can be incarcerated). Id. 

Image of cocaine toothache drops from http://www.npbdentist.com/blog/post/and-you-think-you-hate-going-to-the-dentist-now.html

Image of Steve Nolder from http://www.youtube.com/watch?v=dMQQgLtnWOQ

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

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

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


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Case o' The Week: Failed Conspiracy Good Enough for Successful Prosecution, Mincoff

Is a defendant guilty of conspiring to distribute cocaine when he never actually possessed the cocaine - indeed, when the cocaine sought was never actually delivered?

Yep. United States v. Mincoff, No. 08-50058, 2009 WL 2342031 (9th Cir. July 31, 2009), decision available here.

Players: Decision by Judge Johnnie B. Rawlinson (above left), joined by Judges Canby and N. Randy Smith.

Facts: James Mincoff called Munoz in 2004 to ask if Munoz had access to cocaine, and then ordered eight kilos. Id. at *1. Munoz delivered, Mincoff took it and delivered it to his customer, then returned and paid Munoz’s accomplice for the drug. Id. In 2005, the government got a wiretap and caught Mincoff ordering six or seven kilos from Munoz. Id. at *1-*2. The delivery was delayed, the buyers got antsy, and this order gradually dropped down from 6, to 3, and then to 1 kilo. Id. at *2. Ultimately, Munoz never delivered so Mincoff never actually possessed cocaine for the 2005 (attempted) transactions. Id. at *2.

Both men were charged federally, Munoz flipped, and Mincoff was convicted at trial of conspiracy to distribute cocaine, attempt to distribute cocaine, and unlawful use of a communication facility. Id. at *1. The government had alleged in an information Mincoff’s prior conviction for possession of ephedrine with intent to manufacture meth; at sentencing the district court dubbed that prior a “felony drug offense” and doubled the mandatory minimum to twenty years. Id. at *8.

Issue(s): (Among many): 1. Fronting: Can the practice of “fronting” drugs without immediate payment be evidence of a conspiracy? Id. at *3-*4.

2. Conspiracy: Does “conspiracy to distribute cocaine require proof that one possessed that cocaine?” Id. at *8 (emphasis added).

Held: 1. Fronting: “We are persuaded by precedent from our sister circuits that evidence of fronting may support a conviction for conspiracy to distribute a controlled substance.” Id. at *4.

2. Conspiracy: “We adopt the rule articulated by our sister circuits that a narcotics distribution charge may be proven without proof of possession.” Id. at *9.

Of Note: The above are but two of the handful of new Ninth Circuit rules created in Mincoff. Judge Rawlinson holds that Mincoff’s ephedrine conviction qualifies as a § 841 prior that can double the mandatory-minimum sentence. Id. at *11. The Court also holds that § 841 isn’t void for vagueness as to the ephedrine prior. Id. at *12-*13.

Admittedly, none of these new rules are radical breaks from existing conspiracy or § 841 law in other circuits. Nonetheless, given the amount of new Ninth Circuit precedent forged in the case there is surprisingly little discussion of countervailing arguments. See, e.g., id. at *13 (rejecting in two sentences “rule of lenity” argument in support of constitutional vagueness challenge).

How to Use: For better or worse, Mincoff is a mandatory read for those defending federal drug and conspiracy cases. The decision discusses “fronting” in depth, and describes how fronting evidence can undermine “buy-sell” law for conspiracies. Id. at *4. It explains why there was enough evidence in the case to show that Mincoff and Munoz had agreed to the “essential terms of the planned transaction” with enough certainty to support a conspiracy conviction (although the pair never agreed on an amount of cocaine that was actually delivered). Id. at *5. The case explains that there was a “substantial step” taken towards an attempt to distribute a controlled substance: “[t]he only thing missing was the drugs . . .” Id. at *6. It discusses (and rejects) Mincoff’s arguments on a multiple conspiracies instruction. Id. at *7. Finally, it marches through the definition of “felony drug offense” for Section 841 priors, then rejects Mincoff’s challenge to the doubling of his mandatory minimum sentence. Id. at *11-*12.

In short, a drug defense must dodge many Mincoff minefields.

For Further Reading: For an excellent outline on how to discipline Conspiracy, that spoiled brat of the prosecutor’s nursery, see Jon Sands’ masterpiece here.




Image of the Hon. J. Rawlinson from http://levellers.wordpress.com/2009/05/07/supreme-court-possibilities-i-the-women/

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

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