Case o' The Week: Battle of the Bulge -- Bontemps, Terry and Reasonable Suspicion from "Gun Bulges"

 “Gun” bulge spotted?

Laissez les bon temps rouler (for the cops, that is . . .).

United States v. Bontemps, 2020 WL 6040044 (9th Cir. Oct. 13, 2020), decision available here.

 Players: Decision by Judge Bress, joined by Judge R. Nelson. Compelling dissent by D.J. Gwin. Hard-fought appeal by ED Cal AFPD Ann C. McClintock.

 Facts: At 3:51 pm, Vallejo cops saw four African American men walking on a road in a mixed commercial / residential area. Id. at *1. One detective claimed to have seen what appeared to be a concealed gun in the pouch pocket of the sweatshirt of a man named, “Mills.” Id. A different officer, Detective Tonn, claims to have seen a “very obvious bulge” on the left side of a man named Bontemps. Id. The bulge was just above Bontemps waist area, halfway between his waist and armpit. Id. at *2. Detective Tonn believed Bontemps was carrying a concealed gun.

  The detectives stopped the men, found a gun in Mills’ pocket, and a Glock in a shoulder holster on Bontemps’ left side. Id.

  Bontemps was charged with § 922(g) and brought a suppression motion. After an evidentiary hearing, the court denied the motion, finding reasonable suspicion for the stop. Id.

   Bontemps entered a conditional plea that reserved his right to appeal the district court’s denial of his motion to suppress. Id. at *3.

 Issue(s): “Police detained Tamaran Bontemps after observing a bulge under his sweatshirt that likely indicated a concealed firearm, which is presumptively unlawful to carry in California. After searching Bontemps, a convicted felon with an outstanding felony warrant, police determined he was carrying a loaded gun in a shoulder holster. The question in this case is whether police had reasonable suspicion of illegal conduct sufficient to justify the stop.” Id.

 Held: “We hold that the district court did not clearly err in crediting an officer's testimony that he observed on Bontemps a ‘very large and obvious bulge’ that suggested a concealed firearm. We further hold that reasonable suspicion supported the stop. The district court therefore properly denied Bontemps's motion to suppress evidence found during the search.” Id. at *1.

 Of Note: In a compelling dissent, District Judge Gwin questions the “reasonable suspicion” for this mid-afternoon stop, when there was no criminal activity and the detective only saw “a non-descript sweatshirt bulge.” Id. at *7. The DJ details the inconsistent testimony in the detectives’ accounts, and questions the use of bodycam footage that did not show Bontemps as he looked at the time of the stop. Id. at *9. He concludes, “A sweatshirt bulge alone, especially one as non-descript as here, and without any associated suspicious conduct or circumstances cannot create a reasonable suspicion of criminal activity.” Id. at *10.

  Given Black Lives Matter and the growing societal awareness of the reality of race-based stops, it is disappointing to see the Ninth expand the “bulge” bases to permit the stops of black men who are not engaged in criminal activity, who are walking on a public street in the middle of the afternoon (an unwritten but obvious concern animating DJ Gwin’s dissent). 

   Read Judge James Gwin’s dissent for remarkable stats on how infrequently “bulge” searches actually produce guns, id. at 11. Statistically speaking, “bulge searches” are just pretexts to justify deeply troubling stops.

 How to Use: Wait – isn’t there a whole line of good law rejecting reasonable suspicion as a basis to search for “drug bulges?”

  There is indeed. See, e.g., United States v. Job, 871 F.3d 852, 861 (9th Cir. 2017).

  Judge Bress is “mindful” of concerns about stops based on “gun bulges,” but goes on to try to distinguish the “drug bulge” search caselaw from the Ninth’s new tolerance of a “gun bulge” exception. Id. at *5. Putting aside whether that is a convincing distinction, beware there are new “bulge” categories that appear to now exist in the Ninth: drug bulges are not sufficient, but “gun” bulges (may) establish reasonable suspicion for a stop and Terry pat-down.

 For Further Reading: Terry and its progeny rely on cops’ “common sense.” For a great article providing “empirical data that can substantiate or call into question the predictive value of these ‘common sense’ facts,” and calling for courts to “adjust their perceptions accordingly” when reviewing Terry stops, see Terry Stops-and-Frisks: The Troubling Use of Common Sense in a World of Empirical Data, available here.

 

  

Image of “Stop and Frisk” from https://www.acludc.org/en/know-your-rights/know-your-rights-stop-and-frisk

 

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

 

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Case o' The Week: Ninth Axes Conviction after Juror Dismissed - Litwin, Sixth Amendment and Dismissals of Deliberating Jurors

 Axes to grind . . .

 

on Ninth’s mind. United States v. Litwin, 2020 WL 5050383 (9th Cir. Aug. 27, 2020), decision available here.

 Players: Decision by Judge Bress, joined by Judges Gould and Christen.

 Facts: Medical Assistant Litwin and his co-D, Dr. Wetselaar were charged with illegally distributing prescription medicine. Id. at *2. At trial Juror 5 was selected, but then explained her employer wouldn’t pay her salary while she served. She was left on anyway. Id. at *2-*4.

  The trial took 35 trial days. Id. at *5.

  Three hours into deliberations, a juror complained that Juror 5 “will not change her mind” and “will not deliberate.” Id. at *5. The district judge opined that Juror 5 “had an axe to grind” and was refusing to deliberate in retaliation for being left on the jury. Id. at *7.

  There followed an exchange where Juror 5 agreed to review the evidence, listen to the other jurors, and come up with a verdict. Id. at *9. Despite those assurances, and over defense objection, Juror 5 was excused. Id. at *9-*10.

  The next morning an alternate came in: a guilty verdict followed that afternoon. Id. at *10.

 Issue(s): “We confront in this case the question whether a district court erred in dismissing a juror, hours into jury deliberations following a lengthy criminal trial. Dismissing a juror based on her views of the strength of the government's case is an intrusion on the jury's role and violates the Sixth Amendment. But though the decision must be made carefully, there are various reasons why a district court may properly, and in its discretion, remove a juror from service once the jury has begun deliberating. Determining whether such a dismissal was a violation of the defendant's constitutional right to a unanimous jury verdict, or instead a permissible response to a juror's recalcitrance, bias, or incapacity, is a sensitive task. Because district courts observe jurors first-hand, they are accorded considerable deference in their handling of these issues.” Id. at *1.

 Held: “Under the unique facts before us, however, and notwithstanding the substantial resources expended in this case, we are constrained to conclude that the district court erred in dismissing a juror. The district court's determination that the juror harbored ‘malice toward the judicial process’ is not supported and cannot provide the basis for the juror's dismissal. And while the district court also cited the juror's alleged refusal to deliberate, based on the record in this case we are firmly convinced there was a reasonable possibility that the juror's dismissal stemmed from her views on the strength of the government's prosecution.” Id.

 Of Note: As the appeal proceeded through argument, the Ninth sought supplemental briefing from the parties on the dismissal of Juror 5. Id. at *10. In response, the district court filed a minute order supplementing the record with emails from Juror 5. Id. at *10. The district court also offered the Ninth an (unsolicited) opinion about the “overwhelming weight of the evidence supporting a finding of guilt.” Id. at *10. Finally, the DJ offered to provide declarations from court staff about Juror 5’s demeanor. Id.

  This curious minute order, and the court’s offer of new declarations, earned a cool reception in the Ninth. Id. at *15.

  An odd twist in an odd case.

 How to Use: Is the improper dismissal of a juror during deliberations structural error (leading to automatic reversal), or is it reviewed for harmless error? Oddly enough, this standard-of-review has not yet been resolved. Id. at *19. Judge Bress avoids deciding it here. Even adopting the government’s “harmless error” approach, the Ninth concludes that any error was not harmless. Id. at *20.

  The standard of review used could well determine the outcome in a future “excused juror” appeal – beware of this unresolved S.O.R. issue.

 For Further Reading: Litwin’s co-defendant, Dr. Wetselaar, was a 93-year old WWI veteran -- one of the oldest federal defendants ever sentenced.  See Review Las Vegas Review-Journal article here.  Id. He suffered from prostrate cancer, chronic renal failure, heart valve disorders, and brain atrophy. Id. 

  He was sentenced to ten years custody. Id.

Dr. Wetselaar

  Three years ago the Ninth reversed the district court’s refusal to grant bail pending appeal. See blog here. 

  Dr. Wetselaar passed away last April: the Ninth ordered the district court to vacate the judgment and dismiss the indictment as to this defendant. 2020 WL 5050383, at *11 & n.3.

 

 

Image of “axe to grind” from https://www.naukrinama.com/wp-content/uploads/2015/12/To-have-an-axe-to-grind.jpg  Image of Dr. Weselaar from https://www.reviewjournal.com/crime/courts/former-addict-testifies-in-93-year-old-doctors-drug-case-in-las-vegas/

 

 

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

 

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Case o' The Week: Ninth Nixes Class Action - Chavez-Diaz and Appeals after Unconditional Pleas

The Honorable Judge Daniel Bress

  Class dismissed.

United States v. Chavez-Diaz, 2020 WL 562292 (9th Cir. Feb. 5, 2020), decision available here.

Players: Decision by Judge Bress, joined by Judges Collins and Bea. 

  Hard-fought appeal by AFD Kara Hartzler, Federal Defenders of San Diego.  

Facts: Chavez-Diaz was one of the thousands of aliens swept up in the new border policies in San Diego. Charged with illegal entry, he and other aliens were segregated into separate court calendars with mass arraignments, pleas, sentencings and immediate removals. Id. at *2. He and other Section 1325 defendants were shackled during proceedings, forced to meet with counsel in the presence of U.S. Marshals in a converted garage, and suffered delays in presentment due to their detention in Border Patrol stations. Id.

  Chavez-Diaz raised equal protection and due process objections to these procedures, pleaded guilty without a plea agreement, and during the plea expressly asserted that he was “not waiving his appellate rights. He is not.” Id.

  After being sentenced by the magistrate judge he appealed to the district court. The district court held that Chavez-Diaz had not waived his constitutional challenges, but rejected them on the merits. Id.

Issue(s): “Because Chavez-Diaz did not enter a conditional plea expressly preserving his right to appeal particular issues, the threshold question in this case is whether Chavez-Diaz’s unconditional guilty plea waived his ability to raise the constitutional claims that he now advances.” Id. at *1.

Held: “We hold that Chavez-Diaz waived his right to appeal these claims, and that the district court’s conclusion otherwise rested on a misinterpretation of Class v. United States, . . . 138 S. Ct. 798 . . . (2018). We therefore reverse and remand with instructions to dismiss the appeal.” Id.

  “Chavez-Diaz through his guilty plea plainly waived his right to appeal his equal protection and due process claims. . . [T]hese are challenges to the constitutionality of case-related government conduct that takes place before the plea is entered.” . . . Chavez-Diaz waived his ability to raise these claims by pleading guilty.” Id. at *4 (internal citations and quotations omitted).

Of Note: Wait – Chavez-Diaz expressly stated that he preserved his appeal when he pleaded guilty, but the Ninth slammed shut its courthouse doors and refused to tackle the merits. Can’t he now withdraw his guilty plea as involuntary?

  Nope.

  Judge Bress concludes that despite the express assertion of appellate rights at the plea, the plea was still knowing and voluntary. Id. at *6.

How to Use: The heart of this battle is the scope of the Mena-Blackledge exception, for appeals after unconditional pleas of guilt. That exception “allows for constitutionally-based appeals – despite an unconditional guilty plea – where the appeal, if successful, would mean that the government cannot prosecute the defendant at all.” Id. at *4 (emphasis in original). It was that exception upon which SCOTUS relied in Class, where it permitted a Second Amendment appeal to move forward despite an unconditional plea of guilt.

  Judge Bress distinguishes the Supreme’s Class decision from Chavez-Dias (and limits the Mena-Blackledge exception along the way). While both Class and Chavez-Diaz involved constitutional challenges that did not contest factual guilt, in Chavez-Diaz alone the defendant could still be retried even if his constitutional claims prevailed. That fact cost Chavez-Diaz his appeal, because he entered an unconditional plea of guilt below.

  In short, if you are hoping to raise a constitutional appeal after an unconditional plea of guilt, Chavez-Diaz merits a very close read.

                                               

For Further Reading: What appeals can one take, despite an unconditional plea of guilt? For an interesting overview of the circuit split on this question, see Class v. United States: an Imperfect Application of the Menna-Blackledge Doctrine, at 78 MDLR 382 (2019), available here.

Image of the Honorable Judge Daniel Bress from https://www.wsj.com/articles/judicial-make-up-call-11569020023

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

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