Case o' The Week: The Angel Boogie -- Gasca-Ruiz and Standard of Review for Advisory Guideline Appeals

  Sometimes we anxiously await high-impact en banc decisions: decisions that affect hundreds of our clients -- controversial opinions that hit SCOTUS’s radar the moment they are delivered. See, e.g. Aguila Montes de Oca, blog entry here.

  And sometimes, not so much. See United States v. Gasca-Ruiz, 2017 LEXIS 5893 (9th Cir. April 5, 2017), decision available here. 

Players: Decision by Judge Watford, joined by Chief Judge Thomas and Judges O’Scannlain, McKeown, W. Fletcher, Gould, Bybee, Bea, N.R. Smith, Hurwitz, and Friedland. Concurrence by Judge Hurwitz joined by Judge W. Fletcher. Appeal by AFDs Vince Brunkow and Ryan Fraser, Federal Defenders of San Diego, Inc.

Facts: Gasca-Ruiz took agents on a high-speed chase with smuggled aliens in the truck. Id. at *3. The PSR reported that one alien had mild lacerations to his fingers and a minor burn from the heat of the car – the alien declined medical attention. Id. at *4.

  Probation recommended a two-level bump under § 2L1.1(b)(7) for “bodily injury,” a “significant injury that is . . . painful and obvious.” Id. at *5. Over defense objection, the district court imposed the two offense-level hit. Id.

  Gasca-Ruiz argued on appeal that the use of this guideline was erroneous, and that the review should be de novo. Id. at *6. The Ninth (had) an intra-circuit split on how to review a district court’s decision whether specific facts satisfies a Guideline: some cases had held de novo, others reviewed deferentially under abuse of discretion. Id. The three-judge panel in this case thought the standard of review would be dispositive: their (mysterious) sua sponte en banc call went up. Id. at *7; see “For Further Reading” here.

 

Issue(s): “We took this case en banc to resolve an intra-circuit conflict over the standard of review that applies when we review a district court’s application of the United States Sentencing Guidelines to the facts of a given case.” Id. at *2-*3.

Held: “We conclude that as a general rule such decisions should be reviewed for abuse of discretion.” Id. at *3. 

  “Under the standard of review we adopt today, this last component of the district court’s decision—deciding whether a specific set of facts satisfies the correctly identified legal standard—will generally be subject to review for abuse of discretion.” Id. at *11.

Of Note: A veteran appellate attorney wryly observed that the Ninth has now resolved precisely how many angels dance on the head of a pin. As Judge Watford concedes, “In most cases, the standard of review does not affect the outcome, which is why many three-judge panels in the past have been able to side-step this issue.” Id. at *7. For Judges Hurwitz and Fletcher, that would have been true here as well. See id. at *21 (Hurwitz, Jr., concurring in part and concurring in result). 

  How many of our client’s sentences will actually be affected by the standard-of-review holdings of Gasca-Ruiz? Not even Gasca-Ruiz’s, it appears.

How to Use: Note that Judge Watford discussed when de novo review is still appropriate (“for broad general rule[s]” on guideline interpretation), versus when the abuse of discretion standard applies (the factual application of a particular guideline to a given case.) Id. at *11.

  There’s another “proviso” as well: “crime of violence” determinations are subject to de novo review. Id. at *17.

  There may also be other “limited exceptions to the general rule” that guideline-application decisions are reviewed for abuse of discretion. Id. at *18.

  While the (deferential) abuse-of-discretion standard is likely the answer for guideline appeals, worth taking a close look at Gasca-Ruiz to see if your issue can be shoehorned into one of these de novo exceptions.

                                               

For Further Reading: “Smart on Crime” is “Soft on Crime.” So opines Stephen H. Cook, the former President of the National Association of Assistant U.S. Attorneys.

   Who cares?

   Attorney General Sessions, is who: he has brought Mr. Cook into the “inner circle” at the Justice Department. See How Jeff Sessions Wants to Bring Back the War on Drugs, available here.

   Our appeals of advisory guidelines may become nostalgic memories, if mand-mins become the go-to tool of the new administration.

Image of angels dancing on the head of a pin from http://www.ck12.org/book/CK-12-Earth-Science-Concepts-For-High-School/section/1.2/

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

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Case o' The Week: Voice ID "All Right" by Ninth - Ortiz, FRE 901, and (Cross-Language) Voice Identifications

  The kids are all right.

  Richard Ortiz – well, less so.

United States v. Ortiz, 2015 WL 294305 (9th Cir. Jan. 23, 2015), decision available here.

Players: Decision by Judge Tallman, joined by Judges McKeown and Owens.

Facts: Ortiz was charged with being part of a large Mexican drug trafficking organization. Id. at *1. Ortiz has been released on another federal charge, and was dealing for the organization while on supervised release. Id. 

   His probation officer – who spoke Spanish “a little” – had spoken with Ortiz six to ten times while he was on supervision, and had met him ten to fifteen times, but had only spoken to him in English. Id. 

   During the trial, and over defense objection, this P.O. was called to identify Ortiz’s voice on wiretaps, as he spoke Spanish. Id. The P.O. testified that she recognized English phrases in the call, like “all right” as a distinctive tendency of Ortiz. Id. 

  Ortiz was convicted and sentenced to fifteen years. Id.

Issue(s): “Ortiz contends the district court erred in admitting the opinion testimony of his United States probation officer, Angela McGlynn, identifying Ortiz’s voice speaking primarily Spanish on wiretapped calls because McGlynn does not speak Spanish and had only heard Ortiz speak English.” Id. at *1 (fn. omitted).

Held: “We have never before determined whether a person who has not heard the speaker in a specific language and speaks only “a little” of the language herself, but also recognized the voice from a handful of English words in the taped conversations plus multiple other English conversations, has the ‘requisite familiarity’ to authenticate a voice under [FRE] 901(b)(5). Id. at *2. Here, [the Probation Officer’s] familiarity with Ortiz’s voice was substantially more than the minimal familiarity Rule 902(b)(1)(5) requires for admission of lay identification testimony.” Id. at *3. “Since we hold the district court did not abuse its discretion in ruling on the authentication of his voice on the recordings, we affirm Ortiz’s conviction.” Id.

Of Note: The standard of review, for the Ninth's analysis, is “abuse of discretion.” Id. at *2. Judge Tallman quotes from the seminal ‘09 Hinkson en banc decision, explaining that the Ninth will uphold the evidentiary ruling unless it is “illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” Id. at *2. Hinkson's abuse-of-discretion test is a forgiving standard, with much deference afforded to the district judge. Of historical interest: the D.J. in Hinkson case was Judge Tallman, sitting by designation. See blog here. 

How to Use: The voice I.D. in Ortiz – well, it stinks. The prosecutor first specifically asked the Probation Officer if she could recognize Ortiz’s voice – then played the P.O. the calls. Not surprisingly, the P.O. identified Ortiz. Id. at *2 n.3 Why wasn’t this identification procedure unduly suggestive (thus violating due process) under Neil v. Biggers, 409 U.S. 188, 199 (1972)? Maybe it was – but Ortiz didn’t raise it before the district court or in his opening brief, and the Ninth finds the issue waived. Id. at *2 n.3. Beware of the suggestive ID issue lurking with voice-identification issues (and raise the early!)

                                               

For Further Reading: Eric McDavid was sentenced to twenty years on federal charges, despite a vigorous trial defense that he was entrapped by the FBI’s young female informant. 

  After he served years in federal prison, a slew of documents have now appeared revealing that the informant, Anna, exchanged love letters with her target (a romance denied and downplayed by prosecutors in the trial). It turns out that the FBI had in fact ordered a polygraph of Anna while she was working on McDavid– then mysteriously cancelled it. (The name of the AUSA who signed off on the polygraph has now been redacted). Brady / Giglio evidence, that went to the heart of a vigorous entrapment defense, never disclosed during a very high profile federal trial?

   For a compelling piece on a very troubling prosecution in the ED Cal, see Ben Rosenfeld, Eric McDavid Deserves Answers from Federal Officials Who Kept Information from Him at Trial, available here. 

Image of “The Kids are All Right” from http://www.listal.com/viewimage/4475458

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

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

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


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