Case o' The Week: Qazi like fox - Qazi and Du Bo Challenges to the Indictment

Du Bo shot with pro se spin earns defense nice Rehaif win.  

United States v. Qazi, 2020 WL 5553323 (9th Cir. Sept. 17, 2020), decision available here.

Players: Decision by Judge Hunsaker, joined by Judge Wardlaw and visiting CJ Cook. Nice win for former CD Cal AFPD Michael Tanaka.

 Facts: Omar Qazi represented himself pro se against felon-in-possession charges. Id. at *1. He filed a pretrial motion seeking dismissal of the indictment, for (among other things) failure to state an element. Id. (He did not identify the missing element.) Id. That motion was denied, he went to trial, and was convicted. Id.

  While his appeal was pending, the Supreme Court decided Rehaif, where “the Supreme Court recognized for the first time that the defendant’s knowledge of his felon status is a required element under Section 922(g).” Id. at *2.

Issue(s): “In this circuit an indictment missing an essential element that is properly challenged before trial must be dismissed. United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999). There is no dispute that pro se defendant Omar Qazi’s indictment was missing a required element. The question is whether Qazi properly challenged his indictment pre-trial, thereby triggering the Du Bo rule.” Id. at *1 (emphasis in original).

Held: “Following our well-established obligation to construe pro se filings liberally, we hold that Qazi did properly challenge his indictment, and we direct the district court to dismiss his indictment, as we must.” Id.

 Of Note: Make a proper and timely challenge to deficient indictment in the Ninth, and you get automatic reversal on appeal (with no harmless error hurdles to clear). That rule conflicts with several other circuits, and has prompted some grumbling dissents here in the Ninth. Id. at *2 (reviewing Du Bos, dissents, and concurrences).

  Grizzled Apprendi vets will remember back in the early days of that decision, Du Bo presented a real defense conundrum: challenge a deficient indictment before trial, and the AUSA would just cure a missing element with a quick trip to the grand jury. Wait, however, to bring the indictment challenge at trial, after jeopardy had attached, and your motion would be rejected as untimely.

  Maybe our clients should have fired us, and filed pro se, broad Apprendi motions that complained of missing elements, but did not identify which element was not alleged? Id. at *4 (discussing the possibility that Qazi was in a better position as a pro se litigant than he would have been in had he been represented by counsel).

 How to Use: How specific does a Du Bo pretrial challenge to the indictment have to be? Good question, and one that many defense counsel have wrestled with. Here, Qazi complained the indictment failed to allege “all of the elements of a Federal Crime” – but didn’t specify that the missing element was his knowledge that he was a felon. Id. at *3. That was specific enough – for a pro se litigant. Id. at *4.

  If mulling a Du Bo challenge to a deficient indictment, read the Qazi discussion on specificity. The Qazi pro se challenge may not be quite specific enough for a motion made by counsel, but at least the opinion marks rough boundaries for this requirement.                                             

For Further Reading: Tributes have been pouring in all weekend, on the remarkable legacy of Justice Ruth Bader Ginsburg. Gender equality, choice and reproductive rights, and legendary dissents number among her many legal landmarks. See Ruth Bader Ginsburg’s biggest cases: Equal pay, Bush v. Gore and insider trading, available here.

  What was the Justice’s legacy in criminal law issues? One interesting area is the Sixth Amendment right of Confrontation. Justice Ginsburg famously penned the Bullcoming decision, on the Crawford ramifications of lab reports in criminal cases. See SCOTUS blog here.  

 Justice Ginsburg’s unlikely pal, Justice Scalia, joined her in an exegesis of how prosecutors can still prove their cases, while honoring Confrontation Clause rights, in Part IV of Bullcoming. See decision here. 

 Will the Court’s Crawford coalition maintain a majority when both Justices Scalia and Ginsburg are replaced on SCOTUS? Much depends on the Senate, between now and January 3. 

 

 

Image of “Pro Se” from https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/17/18-10483.pdf

 

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

 

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Case o' The Week: Many are the afflictions of the righteous: but the [Ninth] delivereth him out of [some] of them - Job and King Searches

 Illegal searches, denied suppression motions, an unsuccessful trial, a thirty-year custodial term, and an appeal.

 The Ninth rewards the patience of Job.

United States v. Job, 2017 WL 971803 (9th Cir. Mar. 14, 2017), decision available here.

Players: Decision by (the always-welcome) visiting District Judge Friedman, District of Columbia, joined by Judges Tashima and Paez.  

Facts: Cops, looking for some other dude, happened upon Travis Job: they patted him down. Id. at *2.

  They discovered a glass pipe in Job’s pocket, $1,450 in cash, and car keys. Id. When the cops pushed the key fob a car in the driveway beeped and unlocked. Id.

   Cops searched the car and found meth, a cig with Spice, another glass pipe, and a cell phone. Id.  At some unknown point, the officers discovered Jobs was on probation “with a 4^th amendment waiver.” Id.

  Job was charged in a meth conspiracy with Robert Rodriguez, and others. Id. at *2 (see also United States v. Rodriguez, 2017 WL 971809 (9th Cir. Mar. 14,2017)(discussing challenges to wiretap). Job’s challenges to the searches of his person and car were denied. He was convicted at trial and sentenced to 360 months [other offenses and searches were also involved in the case]. Id. at *3.   

Issue(s): “[Job] argues that the district court erred by denying his motions to suppress evidence found during searches of his person [and] car . . . .” Id. at *1.

Held: “In denying Job’s motions to suppress, the district court concluded — based on our decision in United States v. King — that Job’s Fourth Amendment search waiver provided a justification for all three searches. 736 F.3d 805, 810 (9th Cir. 2013). In King, we held that a suspicionless search, conducted pursuant to a suspicionless-search condition of a violent felon's probation agreement, does not violate the Fourth Amendment. Id. The district court erred by applying King’s holding to this case . . .”  Id. at *3.

  “The district court erred in denying Job’s motions to suppress evidence . . . solely on the basis of Job’s Fourth Amendment search waiver.” Id. at *4 (internal quotations and citation omitted).

Of Note: There were two problems with the government’s use of King in the district court. First, “it is undisputed that the officers were unaware of Job’s Fourth Amendment search waiver when they stopped him and patted him down.” Id. at *3. However, the Ninth’s policy rationale behind permitting the suspicionless searches of parolees (and probationers) requires that cops know of the search condition before searching. Id. Without that key fact, King’s “suspicionless search” rule can’t salvage a bad search.

  Second, King only applies to folks on paper for violent felonies –here, Job was on probation for a narcotic offense (Cal. H&S § 11377(a)). Id. at *4. A probation search waiver for a drug offense (offenses that have been deemed “nonviolent” by the Ninth) won’t justify a King suspicionless search of person, car, or home. Id.

How to Use: It is all well and good that the district court erred -- for Mr. Job, however, the far more-pressing question is the actual impact of the holding on convictions underlying his 30 year sentence?

  The Ninth employs harmless error review to answer that question. Judge Friedman schools the government for misstating the standard for this harmless error review: the test is not “whether a rational jury could have found Job guilty.” Id. at *8 & n.6. Instead, this error is “harmless only when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at *8 (internal quotations and citation omitted).

  The Ninth ultimately reverses one count of conviction under the standard as correctly set forth by Judge Friedman. Take careful note of footnote six: the government’s (wrong) standard of review would have probably meant defeat for Mr. Job. Job is a useful summary of the correct S.O.R. for Fourth Amendment motions after trial (and a potent reminder not to trust the government’s asserted standards on appeal).

           

The Honorable Chief Judge Thomas, with the Honorable Judges Bea and Kozinski (left to right).

                                   

For Further Reading: Republican-appointed judges are testifying in Congress, and opposing a Ninth Circuit split. Judges Bea and Kozinski joined C.J. Thomas at the House Judiciary Subcommittee to oppose the proposed creation of a new 12th Circuit from current Ninth States. For a video of their testimony, see the C-SPAN link here. 

  On a related note, Republican-appointed jurists occasionally disagree with some of the decisions of their colleagues on the Ninth. They are not, however, big fans of the Executive’s ad hominem attacks on the Judiciary. For an interesting piece on a very interesting dissent along these lines, see Appeals Court Judges Rebuke Trump for Personal Attacks, available here.

 
 

Image of (the biblical) Job from http://www.college.columbia.edu/core/sites/core/files/Job.jpg

Image of the Honorable Chief Judge Thomas, the Honorable Judge Bea, and the Honorable Judge Kozinski, from https://www.c-span.org/video/?425486-1/ninth-circuit-court-appeals-judges-testify-court-restructuring

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

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Case o' The Week: Lies, Damn Lies, and Obstruction -- Manning, Obstruction of Justice, and Recantations

Can obstruction apply to lies on a previous case, when a defendant recants, and when the lies thus have no impact on the prosecution or sentence?

Yes, yes, and yes again.

United States v. Manning, 2012 WL 5871715 (9th Cir. Nov. 21, 2012), decision available here.

Players: Per curiam decision by CJ Kozinksi, and Judges Tallman and Ikuta.

Facts: Manning was allowed to self-surrender on a child-porn sentence. Id. at *1. His Pretrial officer got a tip that Manning had guns, in violation of his release terms. Id. When confronted, Manning denied having the guns – then later admitted that he had them and had returned them. Id. The Pretrial Officer advised Manning to call his lawyer. Id. Manning did not show up to the bail revocation hearing, was later arrested in Mexico and returned to the U.S., and ultimately pleaded guilty to felon-in-possession of a gun. Id. At the § 922 (gun) sentencing, Manning was hit with a two-level obstruction enhancement under USSG § 3C1.1. Id. The court gave four reasons for the obstruction hit: Manning’s “willful failure to appear as ordered for a judicial proceeding; his giving false statements to officials of the Court about firearms; his reacquisition of one of the firearms; and his flight to Mexico.” Id.

Issue(s): 1. Obstruction on prior case: “Manning argues that his evasive acts don’t qualify under section 3C1.1 because they were designed to obstruct justice in his child pornography case, not his subsequent felon-in-possession case, which is the ‘instant offense of conviction’ and subject of this appeal.” Id.

2. Materiality of obstruction after recantation: “Providing materially false information to a pretrial services officer, whose job it is to conduct investigations for the court, constitutes obstruction of justice for purposes of section 3C1.1, without a specific showing that the falsehood actually obstructed justice. A ‘material’ statement is one that, if believed, would tend to influence or affect the issue under determination. Manning twice tried to mislead [the Pretrial Officer] by telling him he'd returned the guns to his brother as soon as he began pretrial release. Relying on . . . Yell, 18 F.3d 581 (8th Cir.1994), Manning argues that his subsequent confession rendered these false statements immaterial.” Id. at *2 (internal quotations and citations omitted).

Held: 1. Obstruction on prior case: “Manning's gun possession both violated the terms of his pretrial release and inculpated him as a felon in possession. At the time he willfully took evasive actions, the investigation of his gun possession was already underway, as that was the basis for his scheduled hearing. Therefore, Manning's conduct was obstructive “with respect to the investigation, prosecution, or sentencing” of his felon-in- possession conviction for purposes of section 3C1.1. It is immaterial that he intended to obstruct only the child pornography case.” Id.

2. Materiality of obstruction after recantation: “The Eighth Circuit is mistaken. Section 3C1.1 applies not only where a defendant obstructs justice with respect to his prosecution or sentencing, but also where he obstructs “the investigation . . . of the instant offense of conviction” . . . It doesn't matter whether he fooled the district court; it suffices that he fooled a Pretrial Services officer, or tried to. He need not actually have obstructed the investigation; it suffices that he “attempted” to do so. A false statement that, if believed, would tend to influence or affect” the investigation, . . . is material even if the defendant later comes clean. Id. at *2 (internal quotations and citations omitted).  

Of Note: Circuit split -- and the panel flatly dubs the 8^th wrong. The issue is the “materiality” of obstruction if a recantation corrects the error before damage is done. In Manning, the Ninth holds that the cure is irrelevant; a mere “attempt” to obstruct is enough to trigger the enhancement. Id. Your recanting client may earn his rewards in heaven -- but he’ll still get nailed with obstruction in the Ninth.   

How to Use: Try to fool Pretrial, earn an obstruction bump at sentencing. A sobering rule, when one embarks on a bail interview with a client you’ve known for 15 minutes. Manning’s holding is a good topic for your harried prep session before the Pretrial interview – and a reminder why counsel must attend these interviews.  

                                               

For Further Reading: Apprendi applies to mand-mins: Harris got it wrong. That’s the pitch in Alleyne, the biggest SCOTUS case of the term (we hope). Alleyne will be argued 1/14/13 – you can find the cert. petition here.

 Image of Pinocchio from http://entirelysubjective.com/many-misleading-faces-of-truth/

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

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