Case o' The Week: Undone by a "moment of mental clarity" - Alvarez-Ulloa and Insanity Defenses

 “Still crazy after all these years,” is not enough.

 “Still crazy for all these years?” asks the Ninth, instead.

United States v. Alvarez-Ulloa, 2015 WL 1784183 (9th Cir. Apr. 21, 2015), decision available here.

Players: Decision by Judge Tashima, joined by Judges Paez and D.J. Block. Hard-fought appeal by AFPD Keith Hilzendeger, D. Az.  

Facts: Jesus Alvarez-Ulloa was a Mexican citizen and boxer. Id. at *1. Found in the U.S. after being removed, he was charged under 8 USC § 1326. Id. At trial, the defense presented evidence that Alvarez-Ulloa suffered from chronic traumatic encephalopathy, which – according to a defense expert – could have rendered him legally insane. Id. at *3. The court instructed the jury with the standard insanity instruction (“the defendant was unable to appreciate the nature and quality or the wrongfulness of his acts.”) Id. 

   After several hours of deliberation, the jury sent a note asking, “if the defendant had any moments of mental clarity during [the entire time he was here illegally] . . . does that negate the defense of insanity?” Id. The court referred back to the original instruction – and still no unanimous verdict. 

  The court then gave the following supplemental instruction: “The insanity defense would be negated if, after entering the United States, the Defendant ceased to be insane for a long enough time that he reasonably could have left the United States, and he then knowingly remained in the United States for that time.” Id. at *4. The jury returned a guilty verdict 37 minutes later. Id.

Issue(s): “Ulloa . . . contends that the district court’s supplemental instruction impermissibly coerced the jury’s verdict in violation of the Sixth Amendment.” Id. at *7.

Held: “To succeed in his defense, Ulloa . . . needed to prove that he was legally insane for virtually the entire duration of his illegal stay, such that he could not have reasonably left the United States. We therefore conclude that the district court’s supplemental instruction was substantively correct.” Id. at *7.

Of Note: Judge Tashima starts with the substantive holding above – that the supplemental instruction was correct. That holding appears to be decision of first impression: for the continuing offense of being "found in" the United States, the defendant must be insane for the entire duration of the crime. For illegal reentry – where the crime continues during that entire length of the time in the U.S. – that temporal requirement is a substantial obstacle to the insanity defense. Illegal reentry is probably the longest federal “continuing offense” crime – but it ain’t the only one. Escape from federal custody, and failure to appear, are both dust-gathering continuing crimes. See United States v. Gray, 876 F.2d. 1411, 1419 (9th Cir. 1989). Alvarez-Ulloa merits some thought, when contemplating an insanity offense for a continuing offense that can span over months (or years).

How to Use: The defense also characterized the court’s supplemental insanity instruction as unduly coercive. Id. at *8. The Ninth thought not:” “The supplemental instruction was brief, direct, and does not appear to have been directed at any particular juror. The district court did not err in giving the supplemental instruction.” Id.  Important to note, however, that Judge Tashima emphasizes the instruction allowed conviction if the mental defect relented – the instruction took no position on whether the defect had relented. Id. at *8. It is a fine read, but one that makes a difference for supplemental (“dynamite” or Allen-type) charges: verboten for the district court to “attempt to recast the evidence in a light more favorable to the prosecution.” Id. at *8.

                                               

For Further Reading: The long, expensive, and tiresome saga of the Bonds prosecution has (hopefully) come to a close. The en banc court’s brief opinion, and the much longer concurrences, can be found here. 

  What exactly is the full scope of 18 USC § 1503? “[H]ow many San Francisco lawyers [does the government plan] to throw in jail?” Id. at 2. (J. Fletcher, concurring). All superb questions, that must wait for another day and another case (and, one hopes, another district). 

  Congratulations to Dennis Riordan and Ted Sampsell Jones for their masterful appellate advocacy and a big hometown win.

Image of Paul Simon album cover from http://upload.wikimedia.org/wikipedia/en/archive/8/81/20150204033847!PaulSimonStillCrazyAfterAllTheseYearsCover.jpg

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

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Case o' The Week: No "Second Bite at Guilt Apple" - Evanston, Allen Charges, and Jury Questions

"Where the evidence has closed, the government has rested its case, and the jury has concluded that it cannot reach a verdict despite its earnest efforts, allowing supplemental arguments effectively allows the government a second bite at the guilty verdict apple. As one scholar has noted, procedures for breaking jury deadlock not only give the government a second chance but also provide the government specific input from the jury about what doubts it needs to overcome.” United States v. Evanston, 2011 WL 2619277, *9 (9th July 5, 2011) (footnote, quotation, and citation omitted), decision available here.

In a great decision on an issue of first impression, Judge Hawkins refuses to let the government get a "second bite at the guilty verdict apple."

Players: Thoughtful new Ninth Circuit rule crafted by Judge Michael Hawkins.

Facts: Calvin Evanston was charged in federal court with an assault on his girlfriend, on a reservation in Arizona. Id. at *1. The trial took two days, then the jury deliberated for another two and advised it couldn’t reach a verdict. Id. The district court issued an Allen “or ‘dynamite charge,’” and asked for additional deliberations. Id. Three hours of additional deliberation didn’t help: the jury was still at a stalemate.

The trial judge then proposed to government and defense counsel a novel approach: questioning the jury, learning the issue upon which they were deadlocked, and permitting supplemental argument. Id. The AUSA (predictably) “welcomed the opportunity"; the defense (wisely) objected. Id. Over defense objection, the district court questioned the jury and allowed further argument anyway: two hours later the jury returned with a unanimous guilty verdict. Id. at *2.

Issue(s): “In a case of first impression, we examine whether a district court may, over defense objection and after the administration of an unsuccessful Allen charge, inquire into the reasons for a trial jury’s deadlock and then permit supplemental argument focused on those issues, where the issues in dispute are factual rather than legal.” Id. at *1 (footnote omitted). “Evanston appeals [the guilty] verdict, arguing that the district court’s actions in questioning the jurors as to the subject of their deadlock and allowing supplemental argument on those factual issues invaded the jury’s role a the sole fact-finder.” Id. at *2.

Held: “We conclude that allowing such a procedure in a criminal trial is an abuse of discretion accorded district courts in the management of jury deliberations.” Id. at *1.

Of Note: Evanston is a wonderful decision, lengthy and scholarly, with an exhaustive survey of the jury’s exclusive responsibility for fact-finding. It is thus miserly of us to complain about footnote 15 – but that note is worth a note.

In footnote fifteen Judge Hawkins carefully limits the decision’s holding as arising out of the Ninth’s supervisory powers over federal courts – and not (necessarily) out of any constitutional right. Id. at *10 & n.15. That’s an important distinction, because of the prejudice inquiry – this jury question issue is probably harmless error review instead of structural error and automatic reversal. Id. at *9. The origin of the rule is also important to our federal habeas comrades, who are always on the lookout for new § 2254 hooks. Judge Hawkins doesn’t eliminate the possibility that there’s a constitutional bar to this type of error – but the defense will have an uphill fight to constitutionalize this area of law in the future.

How to Use: Mine Evanston for two great veins of law: a welcome distrust of Allen charges, and hostility to the court’s and parties’ intrusion into the jury’s fact-finding domain.

The foundation of Judge Hawkin’s new rule is his emphasis on the dangers of Allen charges – he stresses with apparent approval that more-enlightened circuits than the Ninth have barred this “dynamite” charge altogether. Id. at *3 & n.7 (O.K., the “more-enlightened” comment is our addition).

Evanston also provides good language against that trend of permitting the government to beg for jury pointers on eliminating reasonable doubt, during a trial. For example, one innovative ND Cal judge has added to his standing criminal trial order, “The Court may permit the jury to pose written questions to the witnesses.” See standing order here. In Evanston, however, Judge Hawkins repeatedly warns, “the jury may not enlist the court as its partner in the fact-finding process.” Id. at *3. The spirit (and arguably the holding) of Evanston weigh heavily against permitting factual questions from the jury before and during deliberations in criminal trials.

For Further Reading: Defense folks don’t like jury questions during a criminal trial: an inquisitorial system that unfairly lets the prosecutor patch holes in reasonable doubt, and that quickly bleeds into discussions of inadmissible evidence. For a nice summary of the many, many arguments against this inadvisable approach, with citations, see, Questions by Jurors - Disadvantages, at 3 Crim. Prac. Manual § 94:10, Westlaw cite CRPMAN § 94:10.



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


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Case o' The Week: Better to Lose than Tie -- Flores-Perez and Interlocutory Appeal of Rule 29 After Hung Jury

Cirilio Flores-Perez had the bad luck to hang his federal jury, 9-3 for acquittal.

If he wanted review of the denial of his Rule 29 motions, explains the Ninth, he should have gone for a conviction. United States v. Flores-Perez, 2011 WL 2450984 (9th Cir. June 21, 2011), decision available here.


Players: Hard-fought and clever appeal by San Diego Assistant Defender Devin Burstein. Decision by Senior District Judge Mills (C.D. Illinois).

Facts: Flores-Perez hung a federal jury on a one-count indictment alleging an attempt to transport an undocumented alien. Id. at *1. (Nine to three in favor of acquittal, by the way). Id. The district court denied his Rule 29 motions brought at the close of the government's case and after the jury hung. Id.

The government then re-indicted with four counts, including the "attempt count." Id. Flores moved the district court to dismiss the superseding indictment on double jeopardy grounds. Id. His motion was denied, and Flores-Perez appealed. Id.

The government challenged the appeal for lack of jurisdiction. Id.

Issue(s): [Ed. note: The ‘84 Supreme Court decision Richardson v. United States, 468 U.S. 317 (1984), effectively eliminated defense double jeopardy challenges on interlocutory appeal, after a mistrial or hung jury.]

“[U]nder Richardson, double jeopardy claims asserting termination of jeopardy due to a hung jury and associated mistrial are no longer colorable.” Id. at *2. "Flores argues that Richardson and its progeny are not controlling because he is appealing the denial of his motion to dismiss the superseding indictment, not his Rule 29 acquittal motion.” Id.

Held: “We hold that the filing of a superseding indictment after mistrial does not raise a colorable double jeopardy claim.” Id. at *3. “[W]e lack jurisdiction to review the district court’s denial of the motion for acquittal.” Id. at *4.

Of Note: Senior, out-of-circuit, district Judge Mills creates a new Ninth rule in this case. The San Diego Defender cleverly argued that it wasn’t challenging the Rule 29 motion (barred on interlocutory appeal); it was challenging the superseding indictment that followed the jury hang. Id. at *3-5. Judge Mills rejects the challenge and makes a new Ninth rule along the way: “the issuance of a superseding indictment does not nullify the original indictment, and . . the issuance of a superseding indictment does not terminate the original jeopardy.” Id. at *4.

This is one of those simple new rules that has complex ramifications. Judge Mills favorably quotes authority that explains that all a superseding indictment does is create another choice for the government to proceed upon a trial – the original indictment, or the superseding. Seems the prudent move for the defense (and the district courts) is to now insist that earlier indictments be dismissed by the government when a superseding indictment is obtained, to prevent prosecutors from leap-frogging among charges before trial.

How to Use: Consider this case in the context of Allen charges. The decision on whether to ask for an Allen charge is always a tough choice for the defense. Remember than an Allen charge is that “dynamite” jury instruction designed to push a hung jury towards unanimity. Flores-Perez reminds us why this is such a hard call. If you’ve lost a truly righteous Rule 29 motion in the district court and end up with a hung jury and mistrial, you can kiss your appeal good-bye.

Is it actually better, in that setting, to get the Allen charge, risk the conviction, and preserve the right to appeal the denial of the Rule 29 motion? Flores-Perez is a good cases to tuck next to the Allen instruction tab on your trial binder, as a reminder of the appellate issues at stake.

For Further Reading: The Supreme Court’s Richardson decision created a particularly galling rule. To see the Richardson rule in action, consider James: a case out of the ND of Cal.

In the first round of this bank robbery case, the government flat-out forgot to introduce proof of FDIC insurance. The district court erroneously denied the Rule 29 motion, and the jury convicted on three out of four counts – hanging on the fourth. Jeopardy attached, the bank robber appealed, the denial of the Rule 29 was reversed by the Ninth, the defense celebrated. United States v. James, 987 F.2d 648, 652 (9th Cir. 1993).

But, as noted above, on the fourth count the jury hung. Because jeopardy didn’t attach, no interlocutory appeal was available and the bank robber never got the FDIC / Rule 29 issue from the fourth count before the Ninth. See United States v. James, 109 F.3d 597 (9th Cir. 1997). James was tried again and convicted. Id. at 598. Hence, after Richardson, the clearly-guilty – who have the good fortune of getting convicted – enjoy appellate review of their Rule 29 motion. Defendants facing weaker proof, who hang their juries, are out of luck in the Ninth.


"Hung jury" logo from http://www.hungjurytheband.com/


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

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Case o' The Week: Ninth Holds Out for Holdout, Williams and Allen Charges

"Wait, wait: don't tell me!" A witty and satiric news quiz found on NPR? Or the plaintive cry of a district judge as a hold-out juror is about to reveal her identity? Both, it turns out.

In United States v. Williams, __ F.3d __, 2008 WL 4812012 (9th Cir. Nov. 6, 2008), Judge Bybee reverses when a district court gave a watered-down Allen charge after the identity of a holdout juror was disclosed. Opinion available here. An important case for the Allen analysis framework, and an opinion that provides some handy new rules for the defense.

Players: Another win for former San Diego AFPD Ben Coleman.

Facts: Williams, et al., were charged with conspiracies to interfere with commerce by robbery and to sell cocaine, and § 924(c)’s. Id. at *1. Williams and his crew agreed to rob a cocaine “stash” house that was, in reality, a sting operation set up by a government snitch. Id. at *1.

The jury deliberated for 2 ½ hours, then the foreman sent a note asking if a juror could send the judge a note – without the foreman seeing it. Id. at *10. A half-hour later, the foreman sent another: “Your Honor, the juror refuses to proceed until you have responded to her note.” Id. at *10. The note said (verbatim):

Judge Gonzales, I disagree with my fellow jurers of (a) entrapment, (b) conspiracy of possession to distribution of drugs, concerning David Williams, Steele, & Brown. I can't get pass this issue, & feel the other jurers have already convicted the three defendants on all accounts. As it stands, my headache is worst and will not be bombarded to change my opinion. May I please be excused from this case, as I feel very strong about my decision & could not face the defendants with the charges the other jurers are hard on declaring. P.S. I hate to use the word prejudice, but feel its presence strong in the room above the law.

Id. at *10.

The judge gave a supplemental instruction, the jury came back with guilty verdicts five hours later. Id. at *11.

Issue(s): “Williams, Brown, and Steel challenge the district court's decision to give a supplemental jury instruction in response to a juror’s note. They argue that the district court was required to declare a mistrial because the juror’s note revealed that she was a holdout.” Id. at *10 (footnote omitted).

Held: “We agree.” Id. at *10. “Because the district court gave an Allen charge after a juror disclosed that she was a holdout, we reverse and remand for a new trial.” Id. at *1.

Of Note: “An Allen charge is the generic name for a class of supplemental jury instructions given when jurors are apparently deadlocked.” Id. at *11 (quotation omitted). In its model instruction set, the Ninth has a pretty forceful Allen charge – Model Instruction 7.7, “Deadlocked Jury.” The instruction given here was not that Allen charge: it was more considerably more tame. Thus, the threshold question was whether this fact pattern even falls into the Allen charge analysis?

It does.

Even though the district court didn’t intend for its supplemental instruction to be an Allen charge, and even though this was a “neutral” instruction that had been previously given to the jury, Judge Bybee still used the Allen framework for the Ninth's analysis. Id. at *13. “So long as the defendant has offered facts that fairly support an inference that jurors who did not agree with the majority felt pressure from the court to give up their conscientiously held beliefs in order to secure a verdict, we must proceed to the Allen charge analysis.” Id. at *11.

This is an interesting rule, and one worth remembering at trial: an impermissibly coercive charge can become an issue even before the jury formally gives notice of deadlock, and even though the full “dynamite” Allen Model Instruction 7.7. is not given.

How to Use: Williams is a useful primer on Allen charges -- it collects and compares many of the Ninth's Allen cases. Id. at *14. Williams also flags a key fact for Allen analyses: was the identity of the holdout juror disclosed? If so, that’s pretty close to the silver bullet – time for a mistrial, and not for an Allen charge. Doesn’t matter if the jury had taken a vote, doesn’t matter that the foreman had not opined on whether further deliberations would be productive: when the holdout juror is identified, the district court cannot give an instruction to keep deliberating. Id. at *15.

For Further Reading: The Ninth distributes handy little jury instruction manuals. Or rather, they were handy – a year before Obama gave his first speech at the Boston DNC. Things change, in five years.

The manual is from ‘03. The most recent on-line instruction pack is from August ‘08. Thirty-five instructions have changed in the five years since the book was published. PDF and Wordperfect versions of the Ninth’s most-recent Model Criminal Jury Instructions can be found here.

The Allen charge discussed in this memo -- Ninth Circuit Model Criminal Jury Instruction 7.7 (deadlocked jury) -- can be found at page 130 of this on-line packet.



Image of the "Wait, wait" panelists from http://www.npr.org/programs/waitwait/


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

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Case o' The Week: McKeown Makes Like Trebek, Gives Big Jeopardy Win --- Brazzel

Jeopardy attaches after an implied acquittal, preventing retrial on a lesser, writes Judge McKeown in the great Brazzel habeas decision. Brazzel v. Washington, __ F.3d __, No. 05-36145, Slip. Op. at 4217 (9th Cir. April 12, 2007), decision available here. A dense read, but worth it for its explanation of implied acquittals, mistrials and Double Jeopardy.

Players: Admirable win by Tacoma AFPD Russell Leonard; written by Judge McKeown.

Facts: Brazzel was charged with attempted murder or, in the alternative, first degree assault, and two counts of second degree assault. Id. at 4221. The first jury convicted him of first degree assault on Count 1, and on both second degree counts. The jury remained silent on the attempted murder charge, leaving the verdict form blank. Id. Brazzel was sentenced to 456 months, but won on a new trial on appeal. Id. at 4222. On retrial, he faced the same alternative attempted murder charge and moved to dismiss on Double Jeopardy grounds. Id. That was denied, he was convicted again of the same counts, and again the jury left the jury form blank on the attempted murder charge. Id. at 4223. He was sentenced to 240 months.

Issue(s): “In this . . . habeas appeal . . . Brazzel challenges, as a violation of the Double Jeopardy Clause, his retrial on an attempted murder charge, after his first jury remained silent on that charge, and convicted him of a lesser alternative offense.” Id. at 4220.

Held: “Where, as here, the defendant’s conviction is overturned due to a jury instruction error, the government may retry the defendant as to the charge of conviction, but not for other charges of which the first jury impliedly or expressly acquitted him.” Id. at 4225-26 (emphasis added). “In contrast to an implied acquittal, retrial is permitted where there is a mistrial declared due to the ‘manifest necessity’ presented by a hung jury.” Id. at 4226. [F]or double jeopardy to attach, there is no explicit requirement that the charged offenses be greater and lesser included offenses . . . . The defining fact is that it is a distinct and different offense.” Id. at 4227 (quotations omitted). “The state court did not clearly err when it treated the first jury’s silence as an implied acquittal.” Id. at 4229. “Brazzel was twice put in jeopardy for attempted murder. The circumstance of a retrial on the murder charge should not have been characterized as moot.” Id. at 4234. “Reversed . . . and remanded to the state to determine what non-jeopardy barred retrial, if any, is to be had.” Id. at 4235.

Of Note: The rule of Brazzel is this: unless it is very clear that the jury has hung, a lack of a conviction is an implied acquittal and jeopardy attaches. Even better, if there’s an implied acquittal on a greater offense it can bar retrial of the lesser (though the law is pretty complicated on this, and it was an unusual fact pattern here that produced this result).

How to Use: Brazzel is an interesting case to add to a trial binder, particularly when there are complicated jury instructions and verdict forms. It could also add a twist to strategies about Allen charges (the “dynamite” charge for a deadlocked jury). While it’s hard to puzzle through all the ramifications when faced with an unclear verdict, at least in this case the jury’s ambiguity about a greater charge worked in the defendant’s favor – it may mean that he won’t face a retrial on the lesser, first degree assault allegation. Clarity, in this case, probably wouldn’t have helped the defendant – if the jury clearly said that it had hung on the attempted murder charge (instead of leaving the verdict form blank), Brazzel would have lost this habeas.

For Further Reading: We’ve touted the opinions of Judge McKeown here before. See blog here. She is the only federal judge to attend both the Universities of Wyoming and Madrid (at least, that’s a safe bet). See article here. Of course, even the best judges have bad days – McKeown recently authored Hector, which held that failure to serve a search warrant didn’t trigger the Fourth Amendment exclusionary rule. See United States v. Hector, 474 F.3d 1150 (9th Cir. 2007).


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

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