Ninth Not Crazy for Limitations on Defense Shrink: Christian and Defense Experts

Hon. Raymond C. Fisher

  A shrink finds a defendant suffers from psychosis, has probable delusions, and a borderline personality disorder, but the psych can’t testify as a defense expert on diminished capacity.

  Crazy? The Ninth thinks so, too. United States v. Christian, 2014 WL 1491887 (9th Cir. Apr. 17, 2014), decision available here.

Players: Decision by Judge Fisher, joined by Judge Berzon. (Good) concurring and dissenting decision by Judge Alarcón. Id. at *10-*11.

Facts: When Christian’s car was repossessed he was displeased with the inability of the police department to help. Id. at *2. So displeased, in fact, that he emailed threats to a police officer and to a prosecutor. Id. He was tried before a jury for emailing threats, in violation of 18 USC § 875(c). Id. at *3. 

  Before this federal trial (near the time the emails were sent), Christian had been evaluated by a psychologist for competency in unrelated state proceedings. Id. That psych considered Christian incompetent, diagnosed him with a psychosis, and recommended that he be sent to a facility for therapeutic care and treatment. Id. 

  Federal defense counsel noticed this psych as an expert to testify on diminished capacity. Id. The district court refused to allow this testimony, because of the different legal standards for competency and dim cap. Id. 

  With no psych evidence, a dim cap instruction was denied, and Christian was convicted. Id. at *2, *3.

Issue(s): Christian “argues that the district court should have allowed his expert, a psychologist who had earlier examined him for competency to stand trial, to testify regarding his diminished capacity defense and that he was entitled to a jury instruction on diminished capacity even without such expert testimony.” Id. at *1.

Held: “[T]he district court abused its discretion by excluding Christian’s expert solely because he examined Christian for competency rather than for diminished capacity. Instead of focusing exclusively on the different legal standards governing the conclusions the expert was asked to draw, the district court should have evaluated whether the substance of the expert’s testimony would have helped the jury decide whether Christian could form the specific intent to threaten the recipients of his emails . . .” “[T]he court should not have excluded such testimony without conducting a voir dire or otherwise giving the expert an opportunity to explain how he could provide meaningful and relevant testimony on diminished capacity from the competency evaluation that he had conducted . . . We . . . vacate Christian’s conviction and remand. . .” Id. at *2.

Of Note: Judge Fisher provides a thoughtful analysis of the true focus of the inquiry in this case – the relevance of the omitted testimony. Id. at *5-*7. Christian is one of the best opinions on defense expert witnesses to come out of the Ninth: it is well worth a close read. In addition to the valuable core holding, Judge Fisher sets forth a great new rule for the Ninth: “We . . .  hold that the rule requiring a new trial when a district court erroneously admits prejudicial expert testimony in a civil trial, . . . also applies to the erroneous exclusion of expert testimony from a criminal trial.” Id. at *2. (internal citation and quotations omitted). There is, admittedly, a caveat or two to this new rule. See id. at *7 & n.3. Nonetheless, very welcome new law.

How to Use: There are few things more aggravating than a court who won’t allow a clean defense offer of proof. That happened here: “the district court several times interrupted defense counsel’s attempt to make a more complete offer of proof.” Id. at *4. 

  Fortunately, the Ninth dislikes this practice, too. In Christian, the interruptions helped the defense dodge the tough plain error standard on appeal. Id. This passage is a handy little trial tool to shoehorn in a defense offer of proof.

                                               

For Further Reading: What really determines a federal sentence? The offense? The judge? Or the largely unfettered power of AUSAs? Prosecutors “have immense discretion to decide which charges to prosecute and what charging concession to offer in the course of plea bargaining, yet a paucity of empirical research exists on these consequential decisions.” Assoc. Prof. Brian Johnson, “The Missing Link: Examining Prosecutorial Decision Making Across Federal Courts.” 

   This interesting new 150+ page empirical report, relying on data from the DOJ, is now available here. 

Image of the Hon. Raymond Fisher from http://www.swlaw.edu/swlawonline/winter04/bigchill.htm

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

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Case o' The Week: One Crime, Two Definitions - Stat Rape in Ninth, Zamorano-Ponce

The generic federal definition of statutory rape, used to determine whether a prior state conviction qualifies in a federal action, requires a mens rea of “knowingly” in the Ninth Circuit.

The generic federal definition of statutory rape, used to determine whether a prior state conviction qualifies in a federal action, does not require a mens rea of “knowingly” in the Ninth Circuit.

United States v. Raul Zamorano-Ponce, 2012 WL 5395159 (9th Cir. Nov. 6, 2012), decision available here.

Players: Decision by Judge Graber, joined by Judges Alarcón and Berzon.

Facts: Zamora-Ponce pleaded guilty to illegal reentry. Id. at *1. In 2003, he pleaded guilty to “rape of a child in the third degree,” in violation of Revised Code of Wash. § 9A.44.079. Id. He was removed after his sentence, reentered, and was caught. Id. He pleaded guilty to illegal reentry pursuant to a written plea agreement. Id. Over defense objection, the district court treated the rape prior as a + 16 offense level, categorical “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Issue(s): “The question before us is whether a prior conviction for ‘rape of a child in the third degree,’ in violation of [Washington state law], qualifies as a ‘crime of violence’ for the purpose of the sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).” Id.

Held: “Reviewing de novo, United States v. Espinoza-Morales, 621 F.3d 1141, 1144 (9th Cir. 2010), we answer ‘yes’ and, therefore, affirm the sentence.” Id.

Of Note: This is short, but unfortunately potent, opinion. In Zamora-Ponce, Judge Graber distinguishes and thereby limits the Ninth’s en banc decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc). You’ll recall that in the terrific (unanimous!) Estrada-Espinoza opinion, Judge Thomas logically looked towards federal statutes for a definition of the “generic” crime of statutory rape. See blog here. The definition that came out of Estrada-Espinoza required a mens rea of “knowingly” for “generic” statutory rape. 546 F.3d at 1152. 

Not so here, explains Judge Graber. Estrada-Espinoza does not control this appeal, because Estrada-Espinoza discussed stat rape in the context of an agg felony in immigration law. By contrast, at issue in Zamora-Ponce was “crime of violence” in the context of the illegal reentry guideline. 2012 WL 5395159, *3.

Why does that make a difference to the generic federal definition of statutory rape? This is conspicuously not explained, in Zamora-Ponce’s lonely paragraph distinguishing Estrada-Espinoza. Id. 

So what is the Taylor generic definition of statutory rape in the Ninth? Turns out that it depends on whether an immigration agg felony is at issue, or a guideline “crime of violence” is under attack. Two generic definitions for one crime, two different mental states required for one generic offense, two conflicting lines of law, all within one Circuit – an interestingly chaotic state of affairs.

How to Use: The Ninth has also toyed with a four-year age-difference requirement for the definition of statutory rape. See United States v. Gonzalez-Aparcio, 663 F.3d 410, 431 (9th Cir. 2011). Is that age difference part of the generic stat rape definition? Still an unresolved question after Zamora-Ponce. 2012 WL 5395159, *2. The Washington state statute at issue here required the four-year age difference, so that question wasn’t reached by this panel. This means that the age-difference component of the federal definition is still fair game for the defense challenging “crime of violence” guideline enhancements in illegal reentry sentencing.  

                                               

Steven Hubachek

For Further Reading: Sad to report that our friend and colleague Steve Hubachek is leaving the San Diego Federal Defender’s office to go into private practice.

 “Huba” has been in the thick of dozens interesting and novel defense challenge over past couple of decades – from Apprendi and the drug statutes (Buckland), to grand jury instructions (Navarro-Vargas), to the timing of Giglio disclosures (Ruiz), to the formidable Aguila-Montes de Oca litigation now destined for the Supremes. 

Passionate, aggressive, wicked smart and enormously creative, Hubachek has been a great friend of the defense bar and an unflagging champion of our indigent clients. We’ll miss his loud Hawaiian shirts, loud punk music, and loud opinions, and wish him much luck in his new gig. 

For a small taste of the big mischief Steve has wrought, visit the collection of blog postings here.

Image of Janus from http://www.redstate.com/2012/02/27/with-obama-endorsement-machinists%E2%80%99-union-bosses-declare-love-for-janus%E2%80%A6/

Image of Steve Hubachek from http://www.oyez.org/sites/default/files/imagecache/300px_wide_profile_image_v2/advocates/h/s/steven_f_hubachek/steven_f_hubachek.jpg

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

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

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


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

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


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Case o' The Week: Not the "End of story as far as" Ninth is Concerned - Andrews and Restitution

Judge Alarcón (left) gives us a good restitution holding within a well-written decision; a useful primer for litigating the restitution issues. United States v. Andrews,__ F.3d __, 2009 WL 1338138 (9th Cir. April 7, 2010), decision available here.

Players: Nice win for ED Wa. & Idaho AFPD Matthew Campbell.

Facts: Andrews pleaded guilty to assault resulting in serious bodily injury. Id. at *1. By the time of sentencing the victim had already been reimbursed for medical expenses and lost income by a state victim-compensation agency. Id. at *1. At the restitution hearing the district court ordered Andrews to reimburse this state agency over $54,000 for its payments. Id.

The defense objected, arguing that the victim’s disabilities were not, in fact, proximately caused by the injuries from the assault. Id. at *2. In support of this argument, the defense attempted to call an expert to testify regarding the actual reason for the victim’s cognitive disorder: was it the head injury from the assault, or another pre-existing condition? Id.

The district court refused to permit the expert testimony, concluding that the state agency had already made that determination about the causal link and had paid the bills: “End of story as far as I am concerned.” Id. at *3. Andrews appealed the restitution order.

Issue(s): “Andrews . . . maintains that the district court erred in not allowing him to present an expert witness at the restitution proceeding in an effort to demonstrate that his actions were not the proximate cause of [the victim’s] disability.” Id. at *2 (internal quotations and citation omitted).

Held: “[The hearing transcript] demonstrate that the district court apparently found that Andrew’s conduct was the sole cause of [the victim’s] mental and physical condition without considering contrary evidence proffered by Andrews. The district court’s finding violated the court’s duty to resolve any dispute concerning the cause of [the victim’s] ailments by a preponderance of the evidence . . . . Thus, the district court abused its discretion in rejecting the expert witness’s testimony. Upon remand, the district court should permit Andrews to present any evidence indicating that his criminal conduct did not cause [the victim’s] mental and physical condition.” Id. at *3 (citation omitted).

Of Note: There is an interesting side issue in Andrews: can a federal district court order that restitution be paid directly to a third party – in this case, the state victim-agency? Id. at *4. Judges Clifton and Fernandez think so – they specially joined to argue that the controlling federal statutes permit such payment. Id. The defendant and dissenting Judge Alarcón disagreed with the majority. Id. at *9-*10. The panel’s decision has now created a circuit split on this issue. Id. at *10 (Alarcón , J., dissenting) (discussing United States v. Speakman, 594 F.3d 1165, 1174-77 (10th Cir. 2010)).

The majority rejects this whole dispute as an ‘angels on the head of a pin’ argument - after all, if the victim directly received the restitution he’d just have to cough it up to reimburse the state agency anyway. That argument, however, ignores the reality that a district court will tend to explicitly (as here in Andrews) or implicitly defer to the findings of a third party (like a state agency) who is already out-of-pocket to reimburse a victim. Judge Alarcón has the better argument - preserve this challenge with an eye towards some future en banc action on the brewing circuit split.

How to Use: Andrews is a clean, well-written opinion on restitution - Judge Alarcón recites the standards for determining restitution, explains the burden of proof, and recites the degree of causation required for a victim to obtain restitution. Id. at *2. It is a good “primer” case for how to determination restitution in the Ninth Circuit and is a useful starting point for restitution briefing and litigation.

For Further Reading: Attorney James Marsh, of the Marsh firm, has made a cottage industry out of suing for restitution on behalf of child pornography victims. See New York Times article here. The firm has replicated filings in many federal districts, seeking restitution claims for the same victim. Federal courts, the DOJ, and the defense bar have taken notice: there are some very good orders regarding the litigation that question the causation link. See order here. Andrews could be a welcome case for the defense in the Marsh restitution litigation.


Picture of the Honorable Arthur L. Alarcón from http://www.uscourts.gov/ttb/2007-08/first/index.html


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

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