Case o' The Week: Bacon Fried Old Expert Rule - Bacon and Remedies for Daubert Expert Error

Barabin burned by Bacon.   

United States v. Bacon, 2020 WL 6498258 (9th Cir. Nov. 5, 2020) (en banc), decision available here.

 Players: Decision by CJ Thomas, joined by Judges Paez, Berzon, Rawlinson, Callahan, Murguia, Hurwitz, Owens, Miller, Bade and Lee.   

 Facts: Bacon and his co-D, Ray, were charged with assault in a federal prison. See blog entry on Ray, available here (describing facts in greater detail). Before trial Bacon gave notice of an insanity defense and a shrink. The district court barred the insanity defense, and the defense mental health expert.

  The three-judge panel held on appeal that the district court abused its discretion in excluding the expert testimony. See United States v. Ray, 956 F.3d 1154 (9th Cir. 2020). The panel (reluctantly) remanded for the DJ to consider the expert again and for a new trial – regardless of whether the district court found the expert admissible. Id. at 1161. In a concurrence, Judge Watford complained about this outcome and criticized the older Barabin rule. Id.

  The case went en banc.

 Issue(s): “We voted to rehear this case en banc to consider what the proper remedy is on appeal when we conclude that a district court has erred under Daubert . . . ., by admitting or excluding expert testimony on one ground, but when we cannot tell from the record whether the admission or exclusion was nevertheless correct on other grounds.” Bacon, 2020 WL 6498258 at *1.

 Held: “Recognizing that there are different circumstances involved in every case, we conclude that a bright-line rule requiring a specific remedy is inappropriate. Instead, each panel should fashion a remedy ‘as may be just under the circumstances.’ 28 U.S.C. § 2106. The remedy may include remanding for a new trial or remanding for the district court to first determine admissibility, then requiring a new trial only if that admissibility determination differs from that in the first trial. We remand this case to the three-judge panel so that the panel may, in its discretion, determine the appropriate remedy in this case.” Id.

   “[A]pplying section 2106, we hold that when a panel of this Court concludes that the district court has committed a non-harmless Daubert error, the panel has discretion to impose a remedy as may be just under the circumstances . . . . Circumstances may require a new trial in some instances; circumstances may dictate a limited remand in others. Of course, the discretion of a panel is not unfettered. The normal rules of appellate review of evidentiary decisions still apply. And nothing in our decision removes Daubert’s important gatekeeping function. But our holding today restores Daubert errors to the usual realm of appellate review and remedy, rather than keeping them in a separate, special category.” Id. at *4.

 Of Note: There’s no good spin: this new rule is bad for the defense. CJ Thomas recounts the history of the old automatic-retrial rule, and the en banc battles during the last decade to overrule it. See id. at *2-*3. This “retrial” rule, that had been created in the civil context, was extended to criminal cases in United States v. Christian, 749 F.3d 806, 813-814 & n.4 (9th Cir. 2014).

There were good reasons for the old rule: the new approach of post-verdict analysis “does not protect the purity of the trial, but instead creates an undue risk of post-hoc rationalization. This is hardly the gatekeeping role the Court envisioned in Daubert and its progeny.” Id. at *2, citing Mukhtar v. Cal. State Univ. Hayward, 319 F.d 1073, 1074 (9th Cir. 2003).

  Unfortunately, however, the tide has shifted in the Ninth: this new Bacon rule gained the support of a unanimous en banc court, with nary a dissent.

 How to Use: It is a brave new world, for Daubert error on appeal, and there’s precious little guidance in Bacon to Ninth three-judge panels, on which remedy is appropriate. Don’t give up on retrial after Bacon: CJ Thomas makes it clear that that option is still on the table. Id. at *4.                                             

For Further Reading: See any interesting news, this weekend? 

  As election results sink in, time to start wondering about Biden’s appointments – and specifically, on the A.G. to replace Barr at the DOJ. For an interesting discussion of this horse race, see Meet the Contenders for Biden’s Cabinet, available here. 

 

 

Image of bacon from https://www.thekitchn.com/archive/2018/02/15

 

 

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcal.fpd

 

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Case o' The Week: Of Trials and Tribulations - Lamar Johnson, Rehaif, and Review of Convictions After Trial

 The Ninth Circuit carefully limits its review to facts in the record, when considering a challenge to a conviction after trial.

 

 (Facts in the appellate record, that is).

  United States v. Lamar Johnson, 2020 WL 6268027 (9th Cir. Oct. 26, 2020), decision available here.

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

  Hard-fought appeal by ND Cal AFPD Robin Packel.  

 Facts: The ND Cal. USAO refused Johnson a conditional plea, to preserve a suppression issue for appeal. See blog entry here, on first decision. 

At the stip-facts § 922(g)(1) bench trial, the government failed to prove that Johnson knew of his status of a convicted felon. 2020 WL 6268027, *2.

  The Ninth denied the appeal of the denial of the suppression motion.

  After Johnson filed a petition for cert., the Supreme Court G.V.R.’ed the case back to the Ninth on the Rehaif issue. Id.

 Issue(s): “[ ] Johnson’s argument is best understood not as a challenge to the sufficiency of the evidence, but rather as a claim that the district court applied the wrong legal standard in assessing his guilt —specifically, by omitting the knowledge of status element now required under Rehaif.” Id. at *3. “The central issue we must decide is whether, in assessing the fourth prong of the plain-error standard, we may consider the entire record on appeal or only the record developed at trial. If we are limited to considering the trial record alone, as Johnson urges, his case for reversal appears strong.” Id. at *4.

 Held: “[W]e think it is appropriate in this case to review the entire record on appeal—not just the record adduced at trial—in assessing whether Johnson has satisfied the fourth prong of plain-error review.” Id. 

  “[ ] [W]e see no basis for limiting our review under the fourth prong to the record adduced at trial. In a case like this one, in which the error under review involves omission of an element of the offense, the record on appeal will often not disclose what additional evidence the government would introduce to prove an element that it had no reason to prove during the first trial. But if the record on appeal does disclose what that evidence consists of, and the evidence is uncontroverted, we can think of no sound reason to ignore it when deciding whether refusal to correct an unpreserved error would result in a miscarriage of justice.” Id. at *5. “In this case, the record on appeal contains additional evidence the government would introduce to prove that Johnson knew of his status as a convicted felon. And given the overwhelming and uncontroverted nature of that evidence, Johnson cannot show that refusing to correct the district court's error would result in a miscarriage of justice.” Id.

  “We conclude that such evidence will ordinarily preclude a defendant from satisfying the fourth prong of plain-error review when challenging the district court's failure to require the government to prove that the defendant knew of his status as a convicted felon.” Id.

 Of Note: Amicus curiae flagged United States v. Atkinson, 990 F.2d 501 (9th Cir. 1993) (en banc). In Atkinson, the Ninth held that a defendant who proceeded to a bench trial did not need to move for a judgment of acquittal to preserve a challenge to the sufficiency of the evidence.

  Judge Watford avoid Atkinson by re-characterizing Johnson’s challenge, changing it from “sufficiency of the evidence”, to a “claim that the district court applied the wrong legal standard in assessing his guilt.” Id. at *3. 

  Whether convincing or not, this distinction will likely prove critical in future “missing element” challenges.

How to Use: Johnson salvages trial conviction based on facts outside of the trial record. That grim new approach does arguably have an internal limitation. Judge Watford writes that this approach applies in cases where the record on appeal reveals the necessary, and uncontroverted fact. Id. at *5 (emphasis added). If there’s any dispute over the fact fitting the missing element, this Plain Error Fourth Prong gambit should not save the conviction.                                

For Further Reading: Rehaif challenges suffered a double-whammy this week. In United States v. Singh, Judge Milan Smith rejected a mens rea Rehaif challenge – cementing “knowingly” as the mental state required for the prohibited-person status. See 2020 WL 6304898 (9th Cir. Oct. 28, 2020), decision available here.

 

  

Image of “Error” from https://www.padtinc.com/blog/windowsupdate/

 

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

 

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Case o' The Week: Mistakes Were Made - Minor Role Adjustments and Amendment 794

  Errors not cool, for cocaine mule.

United States v. Aguilar Diaz, 2018 WL 1220508 (9th Cir. Mar. 9, 2018), decision available here.

Players: Decision by Judge Christen, joined by Judges Graber and Murguia. Welcome win for AFD Samuel Eilers, Federal Defenders of San Diego, Inc.  

Facts: Aguilar Diaz pleaded guilty to importing kilos of cocaine and heroin from Mexico. Id. at *1.

 At sentencing, the defense explained that he had only been involved in two prior crossings: trial runs for this offense. Id. He was only going to get paid a grand for his role as a courier. Id. at *2.

  Aguilar Diaz sought § 3B1.2(b) minor role adjustment articulating the five factors in the Commission’s clarifying Amendment 794. Id. The district court adopted the government’s argument “with little elaboration and denied the minor-role adjustment.” Id.

Issue(s): “[Aguilar Diaz] appeals the . . . denial of a minor role adjustment for his sentence pursuant to . . . § 3B1.2(b).” Id. at *1.

Held: “[W]e vacate and remand for resentencing.” Id. “Although the district court has considerable latitude in ruling on minor-role adjustments . . . on this record we must remand for re-sentencing because the decision to deny the adjustment rested on incorrect interpretations of the § 3B1.2 Guideline and Amendment 794. The difficulty is that the district court adopted the government’s argument with little elaboration, and the government’s argument included an incorrect interpretation of § 3B1.2 and Amendment 794. First, the government relied on the fact that Aguilar Diaz agreed to accept money in exchange for transporting drugs, but ignored that his compensation was relatively modest and fixed. There was no evidence that Aguilar Diaz had a proprietary interest in the outcome of the operation or otherwise stood to benefit more than minimally. Second, though the government correctly identified [two other participants in the smuggling] as the comparison group, it did not account for Aguilar Diaz’s limited understanding of the overall ‘scope and structure of the criminal operation.’” Id. at *6.  

Of Note: The old minor role adjustment guideline had created a circuit split. Id. at *3. Amendment 794, effective November 1, 2015, resolved that split by specifying the pool of folks to whom the defendant is to be compared: other participants in the same criminal scheme, not hypothetical typical offenders. Id. In a careful analysis, Judge Christen clearly lays out the history of the guideline and Amendment, and discusses the (non-exhaustive) list of five factors a district court is to consider when deciding whether to grant a minor-role adjustment. Id.

  Aguilar Diaz is worth a close read when arguing for minor role – particularly the Ninth’s favorable recitation of the Commission’s lament that “minor role adjustments had been applied inconsistently and more sparingly than the Commission intended.” Id. at *4 (quoting USSG § 3B1.2 cmt. n.3(C)) (emphasis added).

How to Use: Wait - how did this reversal happen, when it is black letter law that a district court doesn’t have to “tick off the factors on the record to show that it considered them?” Id. at *4. The defense got a significant assist from the AUSA in this appellate win. At sentencing, the government incorrectly characterized the guideline and amendment’s application. The sparse sentencing transcript didn’t make clear that the District Court understood those errors and rejected them. Id. at *6.

  This holding isn’t exactly a new rule, but it is welcome precedent that highlights a path to appellate victory. When the government bumbles the guidelines and the district court doesn’t expressly reject the mistake, use Aguilar Diaz as your hook for reversible appellate error.

                                               

For Further Reading: President Trump has nominated four Sentencing Commissioners. Like prisoners in a chain gang, the fates of these candidates are linked -- we are told that the full slate for this bipartisan commission will rise or fall together in their Senate confirmations.

  Judge “Hang ‘em High” Hudson and Adjunct Professor William Otis are two Commission candidates that have elicited strong views. The pair “could make it harder for the full slate of four to win swift U.S. Senate confirmation.” See article here. 

  Recall that it takes four Commissioners to dance the Guideline tango: we’re currently one Commissioner shy. See USSG Web Page here. 

  With a kipped quorum, and controversial candidates complicating confirmations, the Commission’s main work may be earnest studies and frequent Tweets, for awhile. See USSG Twitter page, available here.  

Image of mule from https://en.wikipedia.org/wiki/Mule#/media/File:Juancito.jpg, By w:User:Dario u / User:Dario urruty (Own work (w:User:Dario u / User:Dario urruty)) [Public domain], via Wikimedia Commons

Image from “O’ Brother Where Art Thou” from http://deepintomovies.blogspot.com/2011/05/o-brother-where-art-thou-2000.html

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

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Case o' The Week: A Great One - Pocklington and Juridisction to Revoke Probation

  Hiding assets from creditors -- not good, but the Ninth could still stomach a reversal.

  But making the Great One cry? Lucky this case isn’t in a Canadian court.

United States v. Pocklington, 2015 WL 4038740 (9th Cir. July 2, 2015), decision available here.

Players: Decision by Judge McKeown, joined by Judges Kleinfeld and M. Smith.

Facts: Among other crimes, Pocklington traded away Wayne Gretzky while he was a very successful Canadian businessman who owned the Edmonton Oilers. Id. at *1. His fortunes turned, he moved to California from Canada, and he filed for bankruptcy. Id. In his bankruptcy petition, he certified he didn’t hold or control property controlled by another. Id. In reality, however, he controlled storage units and a bank account that had his wife’s property and funds. Id. He pleaded to perjury to avoid bankruptcy fraud charges, and was sentenced to two years of probation. Id. 

  Near the end of his probation term, his P.O. got a letter for the creditors’ attorney alleging Pocklington had failed to disclose millions of dollars in various assets. Id. Probation notified the court, the court was – concerned – Probation got an FBI agent involved, and (five days after probation expired) the court extended his probation term to investigate further. Ultimately the district court revoked his probation (after probation was over). Id. He was sentenced to six months custody and two years of supervised release. Id.

Issue(s): The central issue in this appeal is whether the requirements for extending probation under 18 U.S.C. § 3565 are jurisdictional.” Id. at *2. “In this appeal, we consider the court’s authority to retroactively revoke probation and impose a criminal sentence after the period of probation has expired.” Id. at *1.

Held: “We hold that § 3565 is jurisdictional and that when Congress used the words ‘warrant or summons,’ it mean them. Close enough doesn’t fly under the statute. If the government suspects wrongdoing and wants to extend the probation period, § 3565 provides easy-to-follow instructions: get a warrant and summons before probation expires. Because the government did not do so, the district court lacked jurisdiction to extend Peter Pocklington’s probation beyond its termination date. We reverse and vacate the district court’s post-termination order revoking Pocklington’s probation and imposing penalties for purported probation violations.” Id. at

Of Note: Here’s an appellate quiz. Pocklington didn’t raise this challenge in the district court. Plain error? Nope. “We review subject matter jurisdiction de novo despite any failure to object . . . in the trial court.” Id. at *2 (internal quotations and citation omitted). A welcome appellate review standard – though beware, perhaps unique to the Ninth. Id. (noting Sixth Circuit pain-error review of jurisdiction inquiry under 18 U.S.C. § 3583(i).” Id.

How to Use: Pocklington’s value to stave off late Probation (and by extension, supervised release) violations is obvious. The decision has broader import, however, for its thoughtful discussion of jurisdiction. Judge McKeown explains how the Court determines whether Congress wants statutory provisions to be jurisdictional. She flags the magic statutory phrase – “the power of the court” – as an awfully strong indication that jurisdiction is in play. Id. at *2-*3. It’s a useful analysis, because winning on jurisdiction has many benefits (the aforementioned de novo review, for example). Moreover, the Court has “no authority to create equitable exceptions to jurisdictional requirements.” Id. at *3 (quotation and citation omitted). As Judge McKeown explains, “[t]hat wiggle room falls within Congress’s province.” Id. Good stuff for j/x fights – the Ninth refuses to “fudge the plain language” to get around this jurisdictional bar. Id. at *4.

                                               

For Further Reading: Johnson is rolling like a slow quake through the system, as Defenders grapple with the impact for ACCA and Career Offender clients. 

   For a very interesting scholarly take (with a worrisome “why categorical?” kicker), see Prof. Rory Little’s piece, Opinion analysis: The Court strikes down the ACCA’s residual clause as vague. But is the real problem the “categorical” approach?, SCOTUSblog (Jun. 29, 2015, 10:55 AM), available here.

Image of Wayne Gretzky from http://www.edmontonjournal.com/sports/hockey/edmonton-oilers/gretzky-trade/assets/img/gretzky-front-page.jpg

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

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Case o' The Week: Of teenagers and terrorists - Gardenhire and Guideline "recklessness"

  Q: What possibly could be more stupid than aiming a laser at a plane? 

  A: Aiming a laser at the police helicopter dispatched to find the fool with the laser.

  Stupid, however, does not reckless make. United States v. Gardenhire, 2015 WL 1934493 (9th Cir. Apr. 30, 2015), decision available here.

Players: Decision by Judge Wardlaw, joined by Judges Paez and D.J. Ponsor. Big victory for AFPD Matt Larsen, from the Federal Defender's Office for the Central District of California.

Facts: Gardenhire, an eighteen-year old high school student, pointed a laser at a plane. Id. at *1. It momentarily blinded the pilot, although the pilot was able to safely land the plane. Id. Gardenhire then pointed the laser at a police helicopter dispatched to find the laser. Id. He admitted to police that he had been playing with the laser, that he aimed it towards the aircraft, but that he didn’t see it reach it. Id. He didn’t think about the dangers and said he was simply bored. Id. He was charged with knowingly pointing a laser at an aircraft, and pleaded guilty with a plea agreement. Id. Although the parties jointly recommended referral to the Conviction and Sentence Alternatives (CASA) program (a post-plea diversionary program), the court denied a referral. Id. Instead, the court followed Probation’s recommendation that there be a “recklessness” enhancement, and doubled the offense level to eighteen. Id. The court then went above Probation’s recommended guideline range and imposed a sentence of thirty months of custody. Id. at *2.

Issue(s): “We must decide whether the district court correctly found that Adam Gardenhire recklessly endangered an aircraft within the meaning of U.S.S.G. § 2A5.2(a)(2)(A) when he pointed a laser beam at a Cessna Citation jet, in violation of 18 U.S.C. § 39A.” Id. at *1.

Held: “[T]he district court erred in concluding that Gardenhire acted recklessly when he aimed his laser beam at the aircraft. The record is devoid of evidence, let alone clear and convincing evidence, that Gardenhire was aware of the risk created by his conduct.” Id. at *2. “[T]he district court here made the unsupported leap from deliberate and intentional action to consciousness of risk. In concluding Gardenhire was aware of the risk caused by his actions simply because he deliberately aimed at the aircraft, and purportedly knew the beam could reach the aircraft, the district court significantly and erroneously diluted the mens rea requirement for application of the recklessness enhancement.” Id. at *3.

Of Note: Judge Wardlaw questions the scope of this guideline, that scoops in a teenage prank with serious terrorism offenses and then funnels everything through the amplifying impact of a recklessness enhancement. Id. at *7. The Court drops a heavy hint to the Sentencing Commission that this guideline needs fixing. Id. at *7 & n.6. 

  Of broader interest, Judge Wardlaw reports the huge range the stat maxes for crimes covered by this guideline, and emphasizes that it is thus “particularly important that the government be held to its burden of proof.” Id. A compelling argument -- big guideline impacts for a low stat max case in an overbroad guideline merits a particularly demanding burden for the government. An analysis worth exploring with other guidelines.

How to Use: Ever endure a district judge trying to immunize a harsh sentence from appellate review by threatening an identical Section 3553(a) result if reversed? 

  The Ninth ain’t keen on it, either. 

  Here, the district court denied bail pending appeal, finding no “substantial question,” and indicated it would likely impose the same sentence if reversed. Id. at *6. Judge Wardlaw was unimpressed: “These statements, indicating the district court’s reasoning for denying bail, do not render its procedural error harmless.” Id. Moreover, the Ninth “tak[es] the court at its word” “that it would likely impose the same sentence on remand, regardless of [its] ruling.” Id. The Ninth thus directs the case be reassigned to a different judge on remand. Id. 

  Gardenhire is a potent opinion when confronted by a “belt and suspenders” sentencing judge: not only does this ploy not protect a sentence, but it may earn reassignment on remand as well.

                                               

For Further Reading: Young Gardenhire was only the second person federally prosecuted for pointing a laser beam at a plane. See LA Weekly article here.

FBI image from http://www.fbi.gov/charlotte/press-releases/2014/image/charlotte-laser-strike-campaign-6-12/@@images/38453486-853a-4c72-8fce-af37dbafe6e0.jpeg

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

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