Case o' The Week: Ninth Not Laughing at Mall Cops - Mora-Alcaraz and "Custody" for Miranda

“This is what has become a relatively rare interlocutory appeal by the United States from a district court order suppression evidence in a criminal prosecution.”

United States v. Mora-Alcaraz, 2021 WL 209168, *1 (9th Cir. Jan. 21, 2021) (emphasis added), decision available here.

Players: Decision by Judge Schroeder, joined by Judge Berzon and DJ Mendoza, Jr. Admirable win for D. Nev. AFPD Aarin Kevorkian.  

Facts: Mora-Alcaraz’s estranged wife called the after he brandished a gun. Id. at *2. The next day, Mora-Alcaraz was at the mall with his seven-year old stepson. Four armed cops confronted him, escorted the boy away, and interrogated Mora-Alcaraz without Miranda warnings. Id. He admitted to being an undocumented alien, and having a gun in his truck. He was driven in a patrol car with flashing lights across a parking lot, to his own truck. Id. Mora-Alcaraz then consented to a search that produced the gun. Id. After he was charged with being an alien-in-possession, he moved to suppress. The district court suppressed the statements, and also suppressed the gun as the fruit of a Miranda violation. Id. The government moved for reconsideration. When that was denied, the government filed an interlocutory appeal. Id. at *3.

Hon. Judge Mary Schroeder

Issue(s): “The district court ordered Mora-Alcaraz’s incriminating statements concerning his citizenship status and his ownership of the gun suppressed because they were the product of a custodial interrogation that required Miranda warnings. The parties agree that the key issue is whether the district court erred in holding that persons in Mora-Alcaraz’s position would have felt, under a totality of the circumstances, that they were not at liberty to terminate the interrogation and leave.” Id. at *4 (internal quotations and citation omitted).

Held: “In sum, the totality of circumstances, including the Kim factors, supports the district court’s conclusion that a reasonable person in Mora-Alcaraz's position would not have felt free to end the questioning and leave the mall. The district court properly ordered the statements suppressed because they were the product of a custodial interrogation in which Mora-Alcaraz was not advised of his rights pursuant to Miranda. The order suppressing Mora-Alcaraz’s inculpatory statements to Officer Jackins must be affirmed.” Id. at *5.

Of Note: The defense argued that the government’s interlocutory appeal was untimely, because it was filed thirty days after the denial of the motion for reconsideration ( instead of thirty days after the original order suppressing evidence_. Id. at *3. Rule 4(b) of the Rules of Appellate Procedure lists motions that toll the time for appeal, and government motions for reconsideration are not on that list. Id. In a decision of first impression, the Ninth disagrees. Judge Schroeder holds that Rule 4(b)(b)(3)(A) refers to appeals by criminal defendants, not to by the government. Id. The effective rule: a motion to reconsider tolls time for a government appeal.

How to Use: Most Miranda cases involve police stations. How should the Court evaluate “custodial” interrogations in public places (like a mall?) Judge Schroeder does a thorough job carefully working through the “Kim” factors that guide these types of “public places” Miranda cases. See id. at *4-*5. 

Note that the cops’ separation of the boy from Mora-Alcaraz was an important factor in the “custodial” analysis. Id. at *5. As the Court explained, “No physical restraint of Mora-Alcaraz was necessary so long as the police kept him separated from his son. He could not leave.” Id. at *5. 

Turn to Mora-Alcaraz when cops interrogate your client in a public place.        

For Further Reading: The heart of this victory rests upon the Ninth Circuit's great decision in United States v. Kim, 292 F.3d 969 (9th Cir. 2002). Kim was written by Judge Berzon . . . who by happy coincidence was the second Circuit judge on this Mora-Alcaraz panel. For an interesting discussion on Kim’s role in other Miranda jurisprudence, see Daniel C. Isaacs, Miranda’s Application to the Expanding Terry Stop, 18 J.L. & Pol’y 383 (2009), available here.

 

Picture of the Mall Cop from https://www.sonypictures.com/movies/paulblartmallcop 

Picture of the Honorable Judge Mary Schroeder from https://www.ali.org/members/member/100673/

 

 

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

 

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Case o' The Week: Convictions Fine, Though Cops Opine - Perez, law enforcement opinion testimony, and FRE 701

No disagreement to report, between Judges Tallman and Berzon.

Hon. Judges Tallman and Berzon

 (Unfortunately).

  United States v. Perez, 2020 WL 3089261 (9th Cir. June 11, 2020), decision available here.

Players: Decision by Judge Tallman, joined by Judges Berzon and R. Nelson.  

Facts: Perez and his co-defendants went to trial on charges arising out of their alleged participation in a violent gang. Id. at *1. The government called four law enforcement witnesses: a BOP investigator, two FBI agents, and a L.A. detective. Id. at *6. The BOP investigator analyzed tattoos, associations, visitations, fund deposits in prison, and communications with incarcerated gang members. Id. He also opined as to the “Mayan roots” of the gang. Id. at *7. The FBI agents matched gang members to monikers, translated gang jargon, and identified indicia of drug trafficking. Id. The agents also interpreted the meaning of graffiti, and opined on the interpretation of wiretaps. Id. The detective went as far as paraphrasing a gang member’s conversation in a way that “made their incriminating nature more clear.” Id. at *8. None of these witnesses were designated as Federal Rule of Evidence 702 experts.

Issue(s): “The four officers opined on a variety of subjects. Appellants claim that some of this testimony, including their opinions on ‘code words, phone calls, graffiti, and tattoos,’ was not permissible lay-opinion testimony.” Id. at *6.

Held: “The district court diligently patrolled the line between lay and expert testimony. In those few instances in which admission of these four witnesses’ testimony was error, Appellants suffered no prejudice. We decline to disturb Appellants’ convictions on this basis.” Id. at *9.

Of Note: The clash between non-expert cop testimony and FRE 701 is a hot area of federal law. Notably, one of the three judges on this panel, Judge Berzon, has raised serious concerns about this dangerous practice. See United States v. Gadson, 763 F.3d 1189, 1223 (9th Cir. 2014) (Berzon, J., concurring and dissenting); see also Ninth Circuit Blog, on Gadson, here. 

  In Gadson, Judge Berzon surveyed the Ninth Circuit’s authority and warned, “These cases well identify the dangers of allowing a police officer—who is not an ordinary lay person—to testify based on masses of information not described in any detail to the jury. When our circuit held in Kevin Freeman that an agent’s ‘interpret[ation of] ambiguous statements based on his general knowledge of the investigation’ was permissible lay opinion testimony, it did not address these risks at all.” Id. at 1226. Despite Gadson, you’ll search in vain for Judge Berzon’s dissent in Perez. An unfortunate silence in the FRE 701 debate.

How to Use: How did Perez differ from Gadson? More pointedly, why did Judge Berzon dissent in the latter but not in the former? Maybe plain error review. Judge Tallman concedes in Perez that some of the testimony “approaches the line that Judge Berzon warned about in her partial concurrence in Gadson . . . .” Id. at *8. Judge Tallman concludes, however, that “A thorough examination of the transcripts of . . . phone conversations reveals they do not so much as mention any Appellant’s name or moniker, nor do they pertain in any way to [the defendants’] roles in [the gang]. There was no plain error in allowing this testimony.” Id. at *8. Judge Tallman concedes times that admission of the testimony might have been erroneous -- but the Court avoids the issue and decides the case on plain error (or, at times, harmless error) review. See e.g. id. (“Even granting, for sake of argument, that any error in admitting [the detective’s] opinions should have been plain to the district court, [the Appellants] cannot show that allowing the jury to hear those opinions affected their substantial rights or the fairness of the proceedings.”)

  Fight to limit Perez as a FRE 701 opinion that we should be cabined to its error analysis, and reject it as a broad endorsement cop psuedo-expert testimony.

                                               

For Further Reading: Gut tell you that our criminal justice system is racist?
  Trust your instincts. 
  For a compelling article gathering statistical proof, see, Radley Balko, There’s overwhelming evidence that the criminal justice system is racist. Here’s the proof.,” available here. (“A 2013 study found that after adjusting for numerous other variables, federal prosecutors were almost twice as likely to bring charges carrying mandatory minimums against black defendants as against white defendants accused of similar crimes.”)

Image of the Honorable Judges Tallman and Berzon from https://www.youtube.com/watch?v=VIkCqoDMZV4

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

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Case o' The Week: Red Flags for the SCOTUS Bull - Cooley and En Banc Order Opinions

 Much Ado about Nothing, or a Comedy of Errors?

United States v. Cooley, 2020 WL 399390 (9th Cir. Jan. 24, 2020) (Ord. denying reh’g en banc), order available here.

 Players: Judges Berzon and Hurwitz, concurring in the denial of rehearing en banc. Judges Collins, Bea, Bennett, and Bress dissent.  

Hon. Judge Marsha Berzon

Hon. Judge Daniel Collins

Facts: In an opinion filed in 2019, a three-judge panel considered a district court’s grant of a motion to suppress. United States v. Cooley, 919 F.3d 1135 (9th Cir. 2019). The Court unanimously held that an officer who made an arrest in Indian Country acted “outside of his jurisdiction as a tribal officer when he detained . . . Cooley, a non-Indian, and searched his vehicle without first making any attempt to determine whether Cooley was in fact an Indian.” Id. at 1141. In June of 2019, the government sought rehearing en banc.  

Issue(s): Should the Ninth Circuit rehear this case en banc?

Held: No. United States. Cooley, 2020 WL 399390 (9th Cir. Jan. 2020) (Ord.), at *1.

Of Note: Cooley is a defense win, and welcome Fourth Amendment (ish) protection. With all respect, however, it isn’t the case of the century. It certainly is not a decision with broad application: it is primarily an opinion of interest to Ninth Defenders with non-Indian clients who are searched in Indian Country by tribal officers who are not cross-designated by federal magistrates. The Cooley e.b. order is notable not for the outcome of the case, but for the heated opinions around the order denying rehearing en banc.

  First, Judges Berzon and Hurwitz concurred in the denial of rehearing en banc. They characterize the dissent from the order denying rehearing en banc as “an outlier:” “Even within the questionable genre of dissents from denial of rehearing en banc, see Martin v. City of Boise, 920 F.3d 584, 588 (9th Cir. 2019) (Berzon, J., concurring in denial of rehearing en banc), Judge Collins’s dissent to the denial of rehearing . . . is an outlier. It misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion.” Id. at *1 (Berzon, J. concurring in the denial of rehearing en banc).

   Judge Collins, by contrast, has a different view, in his dissent from the denial of rehearing en banc: “The panel’s extraordinary decision in this case directly contravenes long-established Ninth Circuit and Supreme Court precedent, disregards contrary authority from other state and federal appellate courts, and threatens to seriously undermine the ability of Indian tribes to ensure public safety for the hundreds of thousands of persons who live on reservations within the Ninth Circuit. I respectfully dissent from our failure to rehear this case en banc.” Id. at *5 (Collins, J., dissenting from denial of rehearing en banc). Judge Collins characterizes the concurrence of Judges Berzon and Hurwitz as a “belated” attempt to defend a “stealth overruling” of Ninth Circuit authority. Id. at *6. The majority decision, contends Judge Collins, is “plagued” by a “critical legal error,” is “deeply flawed,” and he quips about one legal issue that “only thing that is astonishing is that the concurrence finds this astonishing.” Id. at *19 & n.10.

  Quite the fight, ‘twixt left and right.

How to Use: An interesting article summarizes the impact thus far of President Trump’s appointees on the Circuit courts. See Law360 article here. 

   The piece ends with good advice: “There’s a lesson there for lawyers as well: Know your audience. Trump’s appointees will only grow in numbers, and influence, as his presidency progresses. And as recent cases have demonstrated, it pays to be in tune with how they think. ‘Insofar as there is fervent debate on the academic right about a particular question that’s relevant to your case, you probably want to be aware of it because there’s a good chance these judges are going to be aware of it,’ Adler said.” Id.

  Consider Cooley and these ten new Ninth jurists – maybe some Second Amendment authority, or administrative law regs, or EPA rulings with criminal ramifications, deserve another look?

                                               

For Further Reading: All 29 Ninth Circuit judicial spots are filled –while 26 await in the Ninth’s district courts. For a tally of where appointments stand, see the Ninth Circuit overview, here. 

Image of Judge Berzon from https://www.spokesman.com/blogs/boise/2014/sep/08/judge-berzon-train-has-left-station/

Image of Judge Collins from https://www.youtube.com/watch?v=1YIjmaDqQzc

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

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Case o' The Week: Headings and Shoulders Above the Crowd - "Exploitation" predicates for federal child porn offenses

 Brave case of first impression brings intellectually-rigorous analysis to – challenging – sentencing fact pattern.

United States v. Schopp, 938 F.3d 1053 (2019), decision available here.

 

The Hon. Judge Marsha Berzon

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

  Big win on issue of first impression for former CD Cal AFPD Myra Sun.  

Facts: Schopp pleaded guilty to production of child porn, pursuant to a plea agreement. Id. at 1057.

  The agreement had an appellate waiver. Id.

  Schopp admitted in the agreement that he had two Alaska state priors relating to the sexual assault and abuse of a minor. Id. (Note that neither state offense involved the production of child porn).

  At sentencing, the parties both urged a sentence of thirty-five years (the mand-min if one of the priors counted as federal “sexual exploitation of children.”) The district court rejected the recommendations and instead sentenced Schopp to life. Id.

  Had the multiple-prior enhancement not been applied (based on the state convictions), Schopp’s range would have been 25 to 50 years. Id.

  Schopp appealed, challenging whether his prior state convictions qualified as federal sexual exploitation predicates.

Issue(s): “Our question is whether the meaning of the term ‘relating to the sexual exploitation of children’ in § 2251’s enhancement provision should reflect the elements of the substantive crimes described in the same “[s]exual exploitation of children” statute.” Id. at 1056. “Under the Taylor categorical approach, we begin by defining the generic federal offense — “sexual exploitation of children.” We have yet to define the offense in a precedential opinion, so this is a matter of first impression.” Id. at 1059.

Held: “We hold that Schopp’s prior Alaska convictions are not offenses ‘relating to the sexual exploitation of children’ under § 2251(e), so the district court improperly applied the sentencing enhancement.” Id. at 1056-57.

  “All of the offenses described in § 2251 concern visual depictions of children engaging in sexually explicit conduct, with ‘sexually explicit conduct’ defined in a separate statute . . . . We accordingly hold that the federal generic definition of ‘sexual exploitation of children’ is defined within § 2251 as the production of visual depictions of children engaging in sexually explicit conduct, or put simply, the production of child pornography.” Id. at 1061.

  “[W]e hold that Schopp’s prior Alaska convictions are not a categorical match to the generic federal offense of ‘sexual exploitation of children’ and cannot serve as predicate offenses for purposes of the multiple-conviction enhancement under § 2251(e).” Id. at 1063. “[W]e REVERSE Schopp’s sentence and REMAND for resentencing.” Id. at 1069.

Of Note: Schopp is a characteristically thoughtful Berzon opinion. The Judge carefully explains the statutory interpretation that leads the panel to reject the government’s (expansive) “priors” theory. The analysis relies heavily on the section heading for the Section 2251 statute: “sexual exploitation of children.” Id. at 1059.

  Add the Schopp arrow to your “statutory analysis” quiver: if a statute’s section heading is in play, Schopp is the case to consult. See id. at 1060 & n.3.  

How to Use: Schopp is a must-read for any porn-production case with potential priors in play. It is also an intriguing decision for its rejection of the appellate waiver. See id. at 1058. As Judge Berzon explains, “Because Shopp’s appeal goes to the legality of his sentence, it is permitted despite his appeal waiver.” Id.

The Hon. Sentencing Commissioner and
District Judge Charles Breyer

  In NorCal, District Judge (and Sentencing Commissioner) Charles Breyer is (correctly) reading this “illegal sentence” exception into every plea agreement. Really, shouldn’t all plea agreements contain this (required) exception to appellate waivers?

                                               

For Further Reading: Last week Judge Danielle Hunsaker, of Oregon, cleared the Senate Judiciary Committee (with relatively little opposition from Democrats). See article here.  Her nomination by President Trump to the Ninth Circuit now awaits a Senate floor vote.

  After her likely confirmation, Judge Hunsaker will hold the seat vacated by Judge O’Scannlain. See article here. 

Image of the Honorable Judge Marsha Berzon from  https://www.youtube.com/watch?v=i39zEPuZr7c

Image of the Honorable Charles Breyer from https://twitter.com/LADailyJournal/status/972173100220538881

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

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Case o' The Week: Read 'Em or Weep - Becerra and Structural Error

Prominent crim-law jurists tangle over knotty Weaver.

United States v. Becerra, 2019 WL 4582835 (9th Cir. Sept. 23, 2019), decision available here.

Players: Decision by Judge Berzon, joined by ED PA DJ Robreno.

  Dissent by Judge Graber.

Facts: Becerra was tried on drug charges. Id. at *1. At the pretrial conference, the district court explained that it would give the jury written instructions, would confirm that the jury read them, but the DJ would not actually read the instructions aloud unless the instructions later changed. Id. Neither party objected. Id.

  The district court read preliminary instructions to the jurors, but did not read the substantive instructions or explain the elements. Id. at *2. The court later confirmed with each juror that they had read the draft instructions, and – for a few new or modified instructions – the judge read the instructions aloud. Id. at *2. “The district court did not after the close of evidence read aloud any of the remaining twenty-seven instructions, or otherwise orally instruct the jurors as to the substantive law.” Id.

  Becerra was convicted of all counts. Id.

Issue(s): “Becerra [argues] . . . that the district court erred by not reading the jury instructions aloud to the jury. Becerra did not object in the district court . . . . We therefore review the failure to provide an oral jury charge for plain error.” Id. at *3.

  “[The government] recognizes that, as [Guam v. Marquez, 963 F.2d 1311 (9th Cir. 1992)] makes clear, the district court in this case erred by not reading the essential jury instructions aloud. Rather, the government’s central contention is that Marquez is not here binding as to its second holding—that the failure of the district court to read jury instructions aloud to the jurors in open court is structural error and so not subject to harmless error analysis.” Id. at *5.

Held: “[ ] Marquez is binding on us not only with regard to its substantive holding as to the necessity of oral jury instructions but also as to its second holding—that the district court committed structural error by failing to read an oral charge to the jurors.” Id. at *5.

   “A trial court does not satisfy its duty to instruct jurors in a criminal case just by providing those jurors with a set of written instructions to use during deliberations. . . . [A] trial court abdicates its responsibility to charge the jury orally as to the elements of the charged crimes, it commits structural error. . . . We . . . reverse the conviction . . .” Id. at *1 (internal citations omitted).

Of Note: So, District Judges have to read instructions to the jury. To be honest, that’s yesterday’s news – that’s been the clear rule for three decades.

 Far more interesting in Becerra is Judge Berzon’s thoughtful analysis of how to approach structural error.

  Structural error is critically important to protect, well, structural constitutional rights, but has been under increasing attack from the Supreme Court.

  Judge Graber presses this attack, arguing in dissent that this plain error was not structural, and was harmless. Id. at *8 (Graber, J., dissenting, citing Weaver, 137 S.Ct. 1899 (2017)).

  The core issue in Becerra, therefore, is whether SCOTUS decisions after the Ninth’s ’92 Marquez opinion undermined the Ninth’s rule that failure to orally advise the jury is structural error? Id. at *8.

  “Nope,” concludes the majority. Id. at *5.

  Writing for the Court, Judge Berzon carefully describes the case-by-case analysis necessary for structural error – an approach that jives with SCOTUS dictates.

   Appellate folks, this battle is worth a close read: the Berzon v. Graber debate over Weaver sets the stage for future structural error battles to come.

How to Use: Remember Becerra and object when a frazzled DJ wants to skip reading a new jury instruction at the end of a long trial. It is a rare, bright-line rule: written instructions alone won’t cut it.

                                               

For Further Reading: Weaver is referenced thirteen times, in Judge Berzon's and Judge Graber's debate. What does that Supreme Court decision mean? 

   For an interesting overview of Justice Kennedy’s opinion, see Prof. Rory Little’s piece here.  

Image of Weaver from https://www.artic.edu/artworks/151363/the-weaver

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

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Case o' The Week: Hoping Ninth Gets Conjunctive-itus - E.B. Grant on Drug Conspiracy Jury Instructions

 “Or” no more, urge fans of “and.”

United States v. Robert Collazo, No. 15-50509, (9th Cir. Sept. 19, 2019), Ord. granting rehearing e.b., available here.

Players: Court-ordered brief for initial en banc consideration by former Federal Defender of San Diego, Inc. AFD, John Lemon.    

Facts: Appellants in Collazo were co-conspirators convicted of drug man-mins. They also suffered guideline enhancements, based on drugs distributed by co-conspirators in prison. See United States v. Rodriguez, Appellants’ Brief for E.B. Consideration, 2019 WL 3947844 at *1. 

  Defendant Rodriguez argued at trial that he did not distribute over 100 grams of heroin: he was an addict, and explained that he consumed “copious amounts” of the drug smuggled to him in prison. Id. at *4-*5. Rodriguez argued for a jury instruction that required that the heroin attributable to him must have been both jointly undertaken in furtherance of the conspirators’ agreement and reasonably foreseeable (i.e., the “conjunctive formulation.”) Id. at *2. 

  The district court refused. 

  The district court instead instructed in the disjunctive: the amounts of drugs must have either been jointly undertaken or reasonably foreseeable. Id. Using this disjunctive instruction, the jury found Rodriguez guilty of conspiracy, and that 100 grams or more of heroin was attributable to him. Id. at *7. 

  Rodriguez was sentenced to a whopping high-end sentence of 175 months, when the court relied on the jury’s findings on the amounts of heroin attributable to him. Id. 

  After briefing on appeal and oral argument, the Ninth issued an order and asked the parties to “address the proper jury instruction under 21 U.S.C. § 841(b) for determining the drug type and quantity involved in a conspiracy offense.” Id. at *2.

 On September 19, the consolidated Collazo cases went en banc.

Issue(s): How is the Ninth going to “sort the whole mess out”? United States v. Torres, 869 F.3d 1089, 1106 (9th Cir. 2017) (Clifton, J. concurring).

Held: T.B.D.

Of Note: Judge Clifton was right in Torres: the Ninth’s law on drug conspiracy is a “mess.” 

  The most straightforward path to victory is for the Ninth to follow its own (and the Supreme Court’s) clear precedent: guidelines and statutes are supposed to be interpreted consistently. See United States v. Becerra, 992 F.3d 960, 967 (1990); see also Dorsey v. United States, 567 U.S. 260, 264 (2012).

   The Ninth got off track because old guidelines handled drug-attribution in the disjunctive. See Becerra, 992 F.3d at 966. In 1992, however, the guidelines were amended to require the conjunctive. Torres, 869 F.3d at 1097 (“[T]he Sentencing Commission . . . amended the Guidelines in 1992 and adopted a conjunctive approach.”) 

  Despite that amendment, the Ninth never corrected its own law and jury instructions – that will change (we hope) with this en banc decision.

How to Use: Object, obviously, in a drug conspiracy trial, and demand the conjunctive formulation. The current problematic disjunctive language is in the “Special Verdicts” section of Ninth Model Instruction 9.19, available here. 

   Query, moreover, what grand juries have been told, as they’ve returned federal drug conspiracy indictments? Fed. Rule Crim. Proc. 6 disclosures of grand jury transcripts may be in order, for drug conspiracy cases heading for trial.

                                               

For Further Reading: The sure win is always the best defense approach: anticipate that Rodriguez will be hammering on the guideline and instruction dissonance in the argument to the en banc court.

  A more interesting argument, however, is Judge Berzon’s very thoughtful concurrence, and compelling conspiracy analysis, in Jauregui, 918 F.3d 1050, 1060 (9th Cir. 2019). Judge Berzon carefully explains how the Ninth’s mélange of conspiracy intent requirements have “muddied an already-confusing area of law.” Id. at 1063.

  For a description of Judge Berzon’s clarion call for en banc action on the Ninth’s conspiracy jurisprudence, see COTW blog entry here.  

Image of man with conflicting arrows from https://www.practiceportuguese.com/learning-notes/disjunctive-coordinating-conjunctions/

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

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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

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Case o' The Week: MJ on the Mind - Jauregui, Apprendi and Conspiracy to Import Drugs

Hon. Judge Marsha Berzon

Clients' thoughts dwell on pot? 

Term for meth ought to be fought.   

United States v. Jauregui, 2019 WL 1302913 (9th Cir. Mar. 22, 2019), decision available here.

Players: Decision and concurrence by Judge Berzon, decision joined by Judge N.R. Smith. Dissent by visiting D.J. Castel.

  Big win for AFD Kimberly Trimble, Federal Defenders of San Diego, Inc.  

Facts: When Jauregui tried to enter the US from Mexico border agents found six kilos of meth in his car. Id. When interrogated, Jauregui explained that he knew that the car had been intended to smuggle marijuana, but that he thought the drugs had been removed when he borrowed the car. Id.

  He pleaded guilty to conspiracy to import drugs. Id. At the plea, Jauregui admitted to conspiring to importing a schedule I or a schedule II drug. Id. at *2. When the DJ balked, the AUSA assured him the factual basis sufficed because of Pinkerton liability for the meth. Id.

  The court later sentenced for meth.     

Issue(s): “Applying § 960(b), the district court sentenced Jauregui to seventy-one months of incarceration, less than the statutory maximum for methamphetamine but more than the statutory maximum for marijuana. Whether that sentence is permissible turns on whether, in the course of pleading guilty, Jauregui admitted to conspiring to import methamphetamine.” Id. at *3.

  “Our question, then, is whether Jauregui’s admission —that ‘it was reasonably foreseeable that the controlled substance may be methamphetamine’—was sufficient under Apprendi to expose Jauregui to sentencing under the statutory maximum for conspiracy to import methamphetamine.” Id. at *5.

   “Under federal law, the statutory maximum sentence for conspiracy to import a controlled substance depends on the specific, agreed-upon controlled substance ‘involv[ed].’ 21 U.S.C. §§ 960(b), 963. We consider whether, consistent with the Sixth Amendment’s jury trial guarantee, Martin Jauregui’s sentence for conspiracy to import methamphetamine can be sustained solely by his admission that he conspired to import marijuana but it was ‘reasonably foreseeable’ that methamphetamine would be imported.” Id. at *1.

Held: “We hold that it cannot.” Id.

  “As Jauregui’s admissions did not establish the existence of a conspiracy to import methamphetamine, he could not properly be sentenced for conspiracy to import methamphetamine.” Id. at *5.

Of Note: Jauregui is a fascinating Apprendi decision, worth a close read for the interplay of Buckland, Thomas, and drug conspiracy law. Even more interesting, however, is Judge Berzon’s compelling call for en banc review of United States v. Banuelos, 322 F.3d700 (9th Cir. 2003). See id. at *8 (Berzon, J., concurring).

  Judge Berzon sets out how over the years the Ninth has muddied already murky conspiracy waters. Id. She explains, “Following these twists and turns, it appears that Banuelos unwittingly imported the test for Pinkerton liability for substantive crimes in furtherance of a conspiracy into the determination of whether a defendant can be held liable for the crime of conspiracy itself, thereby conflating liability for the crime of conspiracy and for substantive crimes committed by the conspiracy.” Id. at *10.

  Judge Berzon is right --the complex analysis necessary in the Jauregui opinion shows how goofy and unfair conspiracy law has become. Banuelos should go en banc.

How to Use: Client charged with a drug conspiracy? Read Jauregui. In addition to the Banuelos issues to preserve for e.b. review, Judge Berzon teases out the ramifications of the Ninth’s Thomas decision, on drug types and amounts. See id. at *4. Drug type is not a necessary element of possession of drugs under Section 841 – and after Jauregui, it is not an element of importation offenses under Section 860. Id. Pleading to a conspiracy – but contesting knowledge of drug types and amounts for mand-mins – may be a little easier after Jauregui.

                                               

For Further Reading: For an interesting discussion of these issues - including Pinkerton liability in federal drug conspiracy law – see Alex Kreit, “Vicarious Criminal Liability and the Constitutional Dimensions of

Pinkerton,” 57 Am. U. Law Rev. 3 (February, 2008), available here. 

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

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

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