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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A very important Fourth Amendment read.

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

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

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

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

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

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

 

 

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

 

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

 

 

 .

Case o' The Week: One Outta Three? May Earn the Full Three! - Acceptance of Responsibility and Relevant Conduct

Hon. Judge Marsha Berzon

  Ninth skeptical of "safe" sentencing . . . 

   United States v. Jeffrey Green, 2019 WL 3939348 (9th Cir. Aug. 21, 2019), decision available here.

Players: Decision by Judge Berzon, joined by Judges Tashima and W. Fletcher.  

Facts: While arresting Green cops found a gun in his pocket. Id. A later search produced two more pistols, locked inside a safe accessible from Green’s apartment. Id. The guns in the safe had been reported stolen. Id.

   Green plead open to the § 922(g) charge, admitting guilt for the gun in his pocket. Id. & n.1.

  [Ed. Note: Unlikely that the Rehaif knowledge element was charged, or admitted, in this open plea].

   Probation hit Green with higher guidelines for three guns, plus a “stolen weapon” guidelines bump for the guns in the safe. Id. The PSR denied Green acceptance, because he had not admitted to possessing the pistols in the safe. Id. Green objected, arguing the government had not proven that the firearms in the safe were in his possession. Id.

  At a sentencing evidentiary hearing, the district court heard Green express dismay in a post-arrest recorded call, when he learned a locksmith had been brought in to open the safe. Id. at *2. The court concluded Green was good for all of the guns, and for the stolen gun bump, and those higher associated guidelines. The district court left open the question of whether Green should get a reduction for acceptance of responsibility.

   At the second sentencing hearing, the court decided against the acceptance reduction -- before it heard the defendant’s allocution. Id. at *2.

Issue(s): “Must a district court decide on a defendant’s eligibility for an acceptance-of-responsibility reduction in his Guidelines level before listening to the defendant’s allocution?” Id. at *1.

Held: “Our answer is ‘No.’” Id.

   “A misapprehension of law occurred here. The district court believed that it had to determine whether Green had accepted responsibility before allowing Green his opportunity to allocute. That is not so.” Id. at *3.

   “We hold that the sentencing court erred by concluding that it could not first hear from the defendant before determining whether a reduction for acceptance of responsibility was warranted under the Sentencing Guidelines. We also conclude that this misapprehension was plain error and so vacate the sentence and remand for resentencing.” Id. at *7.

Of Note: Green’s counsel did not raise this issue on appeal – briefing was sought by the Ninth. Id. at *5. Judge Berzon gets to plain error review anyway, with a useful analysis of plain error factors. Id.

  Note the Ninth also rejects the government’s argument that Green waived the claim – a nice appellate-waiver distinction to tuck away for future use. Id. at 5 & n.4. 

  In an encouraging nod for Green, the Ninth concludes the plain error analysis by predicting he has a shot at a lower sentence on remand. Id. at *6.

   The Ninth’s “reasonable probability of a lower sentence” analysis is of particular interest – see “How to Use” below.

How to Use: Relying on the Ninth’s old Ginn case, the district court denied acceptance because Green only admitted guilt as to one gun.

  “Not so fast,” concludes Judge Berzon. Id. at *6 - *7.

  In Ginn, the defendant didn’t admit all charged counts. Here, by contrast, Green admitted the pocketed revolver in the charged count – he just didn’t admit additional “relevant conduct” guns. Id. Judge Berzon explains that a defendant doesn’t lose acceptance for not admitting relevant conduct (although acceptance may be at risk if a defendant falsely denies, or frivolously contests, relevant conduct. Id). at *6. Green, she muses, may thread the acceptance needle on remand. Id. at *7.

  Probation and AUSAs often want defendants to shoulder sins back to Adam’s apple to earn acceptance. This Green discussion on acceptance is thus the most intriguing part of this interesting decision. Read Green when navigating the “acceptance” labyrinth in the face of relevant conduct worries.

                                               

Hon. Judge Danielle Hunsaker

For Further Reading: Last week President Trump nominated Judge Danielle Hunsaker, an Oregonian appellate judge, to Judge O’Scannlain’s vacant Ninth seat. See article here.  

  Judge Hunsaker was jointly recommended by Oregon Senators Wyden and Merkley (D). See Ballotpedia entry here. 

  Like Ninth Circuit Judges Ikuta, Watford, and Owens, Judge Hunsaker was a Ninth Circuit clerk, having worked for Judge O’Scannlain early in her career. Id.

Image of the Hon. Judge Marsha Berzon from https://www.law.berkeley.edu/article/judicial-externs-debt-gratitude/ .

Image of the Hon. Danielle Hunsaker from https://pamplinmedia.com/ht/117-hillsboro-tribune-news/378183-264528-danielle-hunsaker-appointed-as-washington-county-judge 

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

.

Case o' The Week: "Discomfited" Will Do - Hernandez and Acceptance of Responsibility After Trial

  Trials aren’t tribulations.

United States v. Albert Hernandez, 2018 WL 3352608 (9th Cir. July 10, 2018), decision available here.

Players: Decision by Judge McKeown, joined by Judge Murguia. Dissent by Judge Rawlinson.

  Admirable win (on this issue) for D. Nev. AFPDs Amy B. Cleary and Alina Shell.

Facts: Hernandez, a coach, had a sexual relationship with a 17-year-old minor, and they exchanged sexually-explicit images. Id. at *1.

  The relationship was discovered and Hernandez was charged with a host of federal crimes. He was convicted after a jury trial. Id. at *2.

  The district court denied acceptance, and sentenced Hernandez to 284 months. Id.

Issue(s): “[Did] the district court . . . increase[ ] Hernandez’s sentence

or with[hold] a reduction for acceptance of responsibility based on Hernandez’s decision to go to trial[?]” Id. at *4.

Held: “[B]ecause the record suggests that the district court penalized Hernandez by increasing his sentence based on his decision to exercise his Sixth Amendment right to go to trial, we issue a limited remand for resentencing.” Id. at *1.

  “[O]ur review of the sentencing transcript leaves us discomfited that the district court penalized Hernandez for his assertion of protected Sixth Amendment rights. The district court emphasized Hernandez’s decision to go to trial five separate times during the sentencing hearing. The court first stated that ‘it would mean something if [Hernandez] took responsibility before the trial.’ The court then repeated that ‘contrition means something when it happens before trial.’ . . . . Still further, the court continued: ‘[W]hat I look for is somebody who feels remorse before the trial, before you put this young girl through the—through the agony of testifying, having to testify to what went on, and then identify pictures of herself, personal pictures. So, I don’t see—I don’t see much remorse there, Mr. Hernandez.’ This comment revealed the court’s dim view of Hernandez’s right ‘to be confronted with the witnesses against him.’ U.S. Const. amend. VI.” Id. at *5.

  “The district court’s statements run headlong into our precedent that a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment.” Id. at *6 (citation omitted).

Of Note: The principled analysis of this issue in Hernandez recognizes the reality of federal court: our clients are almost always forced to plea. The government surely has enough arrows to coerce guilty pleas, without also adding “acceptance of responsibility” to the quiver.

  As Judge McKeown thoughtfully explains, “Although most federal criminal cases result in guilty pleas, the Sixth Amendment right to trial remains an important safeguard to defendants who insist on their innocence. Permitting courts to impose harsher sentences on those few defendants who do go to trial could in practice restrict the exercise of the right to those with unusual risk tolerance—or uncommon courage.” Id. at *6.

  On this issue, Hernandez is a great opinion – use it to fight for the “acceptance” reduction, even after a trial.  

How to Use: Like a liturgy, the district court intoned an assurance that the Section 3553(a) factors had been considered before imposing this whopping sentence. “But reciting this boilerplate statement immediately after chastising Hernandez for going to trial, and without any explanation, does not cure the infirmities in the district court’s justification for the sentence imposed.” Id. at *6.

  Use Hernandez to battle the government’s attempts to use a district court’s vague Section 3553 assurances like sentencing sanitizer.

                                               

For Further Reading: Hernandez confirms what we know too well: systemic sentencing penalties have virtually eliminated the constitutional right to a trial.

  For a compelling analysis documenting this problem, with recommendations for reform, see NACDL’s recent report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, available here. 

Image of jury from http://www.amalaw.org/2018/02/03/is-it-possible-for-a-client-to-win-a-dui-jury-trial/

Image of “The Trial Penalty” Report from https://www.nacdl.org/trialpenaltyreport/

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

.

Case o' The Week: The First and the Ninth - Osinger, First Amendment, and Internet Stalking

   The First Amendment protects offensive and, at times, reprehensible speech.

  (But, as Judge Rawlinson explains, not all offensive and reprehensible speech is protected.)

United States v. Osinger, 2014 WL 2498131 (9th Cir. June 4, 2014), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges Graber and Watford. Concurrence by Judge Watford.

Facts: Christopher Osinger was indicted for “engaging in a course of harassing conduct,” in violation of 18 USC §§ 2261A(2)(A) and 2261(b)(5). Id. at *1. Before trial he unsuccessfully moved to dismiss the indictment, arguing that Section 2261A(2)(A) was unconstitutionally vague. Id. Trial testimony revealed that Osinger and the female victim, V.B., had a romantic relationship that ended badly. Id. Osinger texted V.B., showed up at her house un-invited in the early morning, and ultimately created a Facebook page in a name close to V.B.’s, with nude photographs of her and offensive text. Id. at *1-*2. Osinger also sent disturbing emails to V.B.’s co-workers. Id. He was convicted and sentenced to 46 months. Id. at *3.

Issue(s): “Osinger . . . contends that 18 USC § 2261A(2)(A) was unconstitutionally applied to his protected speech.” Id. at *5.

Held: “Any expressive aspects of Osinger’s speech were not protected under the First Amendment because they were ‘integral to criminal conduct’ in intentionally harassing, intimidating, or causing substantial emotional distress to V.B. . . . . In the limited context of 18 USC § 2261A, Osinger’s speech is not afforded First Amendment protection for the additional reason that it involved sexually explicit publications concerning a private individual.” Id. at *7.

Of Note: Hidden amongst the big constitutional fight is a troubling holding of broad application: a denial of acceptance of responsibility. Id. at *7. Osinger was denied two-offense levels off for acceptance, even though he argued he went to trial only to preserve his constitutional challenge to the statute. Id. at *7. In upholding that denial, the Court relies heavily on defense counsel’s characterization of the evidence at trial. Id. at *7. The Court also emphasizes Osinger’s lack of contriteness, quoting equivocal acceptance of responsibility from his counsel (it appears). Id. at *8 (“Here, Mr. Osinger said and did things out of anger.”) 

   If you want to navigate those narrow straits of preserving an appellate issue through trial, while claiming acceptance, read Osinger. It is a sobering reminder that counsel’s actions can jeopardize acceptance eligibility.

How to Use: Concurring, Judge Watford would also uphold the statute against the as-applied challenge. Id. at *9 (Watford, J., concurring). His First Amendment analysis is nuanced, however, and emphasizes that this case involved both speech and unprotected non-speech conduct. Id. at *12. It is a thoughtful discussion, carefully tailored to the facts before the Court. 

  Judge Watford ends with an observation that may be helpful in future challenges: “It’s unclear whether this [more rigorous First Amendment] standard, [that applies when a defendant is doing nothing but exercising the right of free speech] would apply in a § 2261A prosecution in which the defendant caused someone substantial emotional distress by engaging only in otherwise protected speech. That is a question whose resolution we wisely leave for another day.” Id. at *13 (emphasis added).

                                               

For Further Reading: More than crack resentencing, probably more than commutation, the retroactive application of the minus-two level reduction in drug cases could have a profound impact for our incarcerated clients. In the recent Commission hearing, DOJ offered a disappointing “compromise” position that would limit retroactive application. For two critiques of DOJ’s position, see Prof Berman's blog here. 

  And for ED Penn. AFPD Sarah Gannet’s compelling testimony, see here.  Sarah did us all proud - make sure to thank her and the Sentencing Resource Counsel for their hard work on a righteous cause.

First Amendment logo from http://cojmc.unl.edu/firstamendment/funfacts.php

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

 .

.

Case o' The Week: Hammer & Nail - Johnson and Sex Offender Conditions of Supervision

When all you’ve got is a hammer, the whole world looks like a nail.

Probation is getting resources for hammering sex-offender supervision (and our clients are getting nailed). United States v. Johnson, 2012 WL 5328597 (9th Cir. Oct. 30, 2012), decision available here.

Players: Decision by Judge Clifton. Hard-fought appeal litigated by C. Reneé Manes, AFPD D.Or.

Facts: In 1980, Johnson raped a woman at knifepoint and was sentenced to nine years. Id. at *1. In 1990, he raped a fourteen-year old girl at gunpoint and was sentenced to thirteen years. Id. 

  In March of 2010, Johnson had a gun; he was convicted of being a felon in possession and sentenced in May 2011. See Docket #23, 3:10-cr-240 MO (D. Or.). 

  Months later, Probation convinced the district court to issue a summons, bring the defendant back in, and face a new a special condition requiring that Johnson participate in a “sex offense assessment and treatment program.” Id. at Docket # 29. After briefing, the district court ordered that Johnson “submit to a sex offender assessment as directed by the probation officer.” Id.      

Issue(s): “This appeal presents the question of whether a district court may require a sexual offender assessment—not treatment, just an assessment—as a condition of supervised release when the defendant has two decades-old prior sexual offense convictions involving weapons, when the current offense also involves a weapon, and when the defendant's prior completion of sex offender treatment cannot be confirmed.” Johnson, 2012 WL 5328597, *1.

Held: “We conclude that it may require such an assessment and affirm the condition imposed in this case.” Id. at *1. “The district court did not abuse its discretion in ordering the sexual offender assessment condition. Johnson was twice convicted of serious and violent sexual offenses. In addition, Johnson's current offense involved possession of a gun, the same sort of weapon he used as a sexual offender. Johnson's history as a sexual offender, old as it may be, justified the district court's decision to order a sexual offender assessment. After the district court receives the results of the assessment, it will be better able to determine if additional conditions are necessary to protect the public and rehabilitate Johnson.” Id. at *2.

Of Note: The Ninth has held that twenty-year old and forty-one year old sex offenses were too stale to support supervised release conditions that included sex offender treatment and testing. Id. at *2 (quoting United States v. T.M., 330 F.3d 1235 (9th Cir. 2003)). How does the Ninth in Johnson distinguish T.M.? First, Johnson involved an assessment, and not sex offender treatment and testing. Id. In T.M., the defender had also demonstrated progress in sex offender treatment – here, there was no such record. Id. It bears emphasis that Johnson didn’t overrule T.M.: beware of rather narrow Johnson holding when battling these sex conditions on supervision.

How to Use: Why does Probation have sex on its mind? Long after sentencing, Probation Officers are now tromping back to court and seeking sex “assessment and treatment” conditions. These “assessments” involve polygraphs with questions about sex crimes, with no Miranda protections or immunity agreements. In a particular offensive gambit, Probation now pushes our clients to “voluntarily” sign these supervision modifications without alerting counsel. 

  Why the sex fixation? Maybe it’s the aftermath of the Phillip Garrido tragedy. Or maybe it is the resources and staffing that a Probation Office can snag if it supervises sex offenders. If a client has any sex offense in his past (even, apparently, one many decades old), warn them not to voluntarily sign new conditions of supervised release without speaking first to you.

                                               

For Further Reading: If you plead open to preserve an appeal, and the government denies you the third acceptance offense level, object!

   The Ninth is on the wrong side of a circuit split on this issue, and a compelling amicus brief from the Federal and Community Defenders and NACDL was filed last week supporting an en banc call. Poach freely from this beautiful brief for your sentencing objections – you can find it here.

Image of hammer and nail from https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjNtIZeg5ycskXt4nMzUAfqAdp2xkan4bWkETqg54ZEzpxLf4-i8Ig6swpExLgCrWt0qNC41UAoyf29yb5SpMlPUTv9n5-FA6zM9QsVHRn_4KOLOPPAkByJAYGb7a0SPQ3jr_h3/s1600/hammer-and-nail.jpg

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

.