Case o' the Week: Overbreadth Done if you Stash A Gun -- King and Overbreadth in Search Warrants

Not a good sign of great things to come, when an opinion begins: 

Firearms seized in search of King's residence

“While searching Sheldon King's home pursuant to a warrant, Fresno police discovered a medley of firearms.”

United States v. Sheldon King, 985 F.3d 702 (9th Cir. Jan. 14, 2021) (emphasis added), decision available here.

Players: Decision by Judge Bumatay, joined by Judge Callahan and D.J. Presnell. 

Hard-fought appeal by former CD Cal (and Alaska!) AFPD Carlton Gunn.  

Facts: A man assaulted a woman, and threatened her with a silver and gold revolver. Id. at 706. In a jail call, the assailant asked the victim to get the “thing” (the gun) to “Dubs” – (aka, the defendant in this case, Sheldon King). King was a felon. Id. Cops got a search warrant for King’s residence, to search for any firearm. Id. The search turned up a “medley of firearms.” Id. He was charged with Section 922(g)(1), and his suppression motion was then denied. Id. King entered a conditional plea preserving an appeal on the suppression motion.  

Issue(s): “King now brings this appeal . . . challenging the validity of the search warrant. Specifically, he argues that the warrant was overbroad—that there was only probable cause for the silver and gold revolver, and no other firearms.” Id. at 707.

Held: “[W]e conclude that the warrant here did not violate the Fourth Amendment. In the affidavit, a police officer detailed his investigation, his training and experience, and his suspicion that King was a felon in possession. The affidavit noted that King had two prior felonies . . . . Despite this criminal history, the affidavit sets out that King took possession of the “large silver & gold revolver” of unknown caliber shortly after it was used in a violent domestic dispute. The officer also explained how he suspected that other weapons might be present at King’s residence since other “individuals [may] arrive at the scene of [the] search” and that, in his experience, “many of these individuals are found to be in possession of weapons.” Moreover, the officer explained that, as a felon, any firearm found in King's possession would constitute evidence of a felon-in-possession offense. The officer expressed his belief that King was in violation of the felon-in-possession statute. These facts, taken together, provided the judge with a substantial basis to authorize the broader search for “any firearm.” Id.

 Of Note: The Ninth assures us there was probable cause for any firearm based on an assertation: that King’s willingness to hold a gun for a friend made it likely that he would also have other guns. See id. at 709 (“We doubt that the domestic-abuse suspect would have given the firearm to someone completely inexperienced in possessing firearms, especially a firearm that was just used in a crime. It's fair to think that serving as an illicit depository of another person's firearm makes King's possession of other firearms likely.”)

We may question that logic, but the unfortunate principle probably holds after King: the “stash-it” guy is likely now subject to broader search warrants than just the specific [gun/ammo/drugs ] awkwardly referenced in a jail call.

How to Use: “Gunner” Carl Gunn found a problem with the Career Offender sentence imposed in this case, and took it up to the Ninth. Unfortunately, a sentencing appeal was not carved out in the conditional plea. Judge Bumatay enforces the plea agreement’s waiver of sentencing appeals (although it looks like this potential problem may have cost Mr. King six offense levels). Id. at 711.

The rules around federal sentencing feel like they are changing daily – take a close look at this discussion in King when weighing whether a plea agreement waiving an appeal is worth it.                                               

For Further Reading: In 2016, SFPD Officer Nicholas Buckley, Star # 528, was caught by AFPD Ellen Leonida when a (surprise) surveillance video contracted every relevant fact of his testimony. 

When District Judge Charles Breyer explained that he was “deeply saddened” by what he saw in this hearing, the federal case was promptly dismissed. See blog entry describing evidentiary hearing here. 

Unbelievably, Officer Buckley is now back on patrol in San Francisco. See San Francisco Examiner article here. 

  There is no more potent example of toothless police discipline in San Francisco, than Buckley back on the beat.  

 

 

 

Image of firearms seized from Mr. King’s house from https://www.fresnobee.com/news/local/crime/article224126235.html

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

 

.

 

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

 

 .

Case o' The Week: Oh What Busts We Do Unweave, When Special Agents First Deceive - Ramirez, Ruses, and Deceit

“[A] private person has the right to expect that the government, when acting in its own name, will behave honorably. When a government agent presents himself to a private individual, and seeks that individual's cooperation based on his status as a government agent, the individual should be able to rely on the agent’s representations.”

  United States v. Stefan Ramirez, 2020 U.S. App. LEXIS 30635, *17-*18 (quoting SEC v. ESM Gov't Sec., Inc., 645 F.2d 310, 316 (5th Cir. 1981)), decision available here).

The Honorable Judge Kim Wardlaw

(Discussed in the context of a search challenge -- although sadly apropos in our current times as well. .  .)

Players: Important decision by Judge Wardlaw, joined by Chief Judge Thomas. Dissent by Judge Collins. Big win for ED Cal AFPD Peggy Sasso.

Facts: A child-porn investigation focused on an address where Ramirez, his mother, and others lived. Id. at *5. The FBI got a warrant to search the residence and Ramirez’s car if it was at the premises. Id. at *6.

  On the day of the search, Ramirez went to work by 6:00 a.m, but the Special Agents didn’t mosey over to the house until 9:20 a.m. Id. at *7.  FBI Agent Joshua Ratzlaff therefore decided to create a ruse, because he wanted to talk to Ramirez as part of the search. Id. at *6. SA Ratzlaff lied, said that the home had been burglarized, and insisted the police needed Ramirez to return home. Id. After roping Ramirez’s mother into this ruse, SA Ratzlaff eventually convinced Ramirez to come home. Id.

  After he returned to the house, Ramirez was interrogated by armed agents, confessed, and was charged with distribution of child porn. Id. at *8. The district court denied the motion to suppress, and Ramirez appealed after a conditional plea.

Issue(s): “The agents in this case obtained the legal authority to detain Ramirez for officer safety and brought his vehicle within the scope of their search warrant by falsely claiming to be police officers investigating a burglary at Ramirez's home. Whether the district court erred by denying Ramirez’s motion to suppress turns on whether the agents’ use of this ruse violated the Fourth Amendment.” Id. at *11.

Held: “[T]he agents had no authority to seize Ramirez or search his car when they arrived to execute the warrant, because neither was at the residence. The agents manufactured the authority to seize them by falsely claiming to be police officers responding to a burglary to lure Ramirez home. By luring Ramirez home, the agents’ successful deceit enabled them to obtain incriminating statements from Ramirez and evidence from his car and person. . . . . We hold that, under the particular facts of this case, the agents’ use of deceit to seize and search Ramirez violated the Fourth Amendment.” Id. at *4.

Of Note: Sun gonna rise, birds gonna sing, cops gonna lie. Ramirez is a thoughtful analysis of when cops can reasonably use deceit – and, importantly, when they cannot.

  Judge Wardlaw describes two categories of law enforcement deceit. Id. at *14. Deceit is generally lawful when a ruse hides the cop’s identity as law enforcement, and facilitates a search and seizure that is within its lawful authority. Id. (discussing uncovercover operations as permissible deception).

  The second (unreasonable) category of law enforcement deceit is “when the government agent is known to the suspect as such, and invokes the trust or cooperation of an individual to search or seize items outside what is lawfully authorized.” Id. at *16. In other words, cops can’t identify themselves as cops and trick citizens into responding to fake emergencies – like the burglary in Ramirez.

  A seminal case on cop deceit: worth a very close read.

How to Use: Ramirez is the gift that keeps on giving. After its Fourth Amendment ruling, the Court holds that Ramirez’s statements were tainted by the illegality of the initial seizure and must also be suppressed. Id. at *31.

  Turn to Ramirez when seeking to suppress a confession springing out of an illegal search or seizure.                                             

For Further Reading: In our view, Fresno FBI Agent Joshua Ratzlaff’s deceit in Ramirez is Brady / Giglio info that the ED Cal USAO must reveal in future cases. Thanks to a new statute, Brady disclosure will soon be required through an individual judicial order in every case. See “House Passes Durbin, Sullivan Due Process Protections Act,” article here.  

  “This bill requires a federal judge in criminal proceedings to issue an order confirming the obligation of the prosecutor to disclose exculpatory evidence.” See Congressional summary of bill here. 

  The majority of the Northern District of California District Judges have already issued Brady disclosure orders upon AFPDs’ motions for Brady / Giglio cut-off dates.

The Hon. Charles R. Breyer

See, e.g., United States v. Willie Williams, CR 19-00341 CRB (N.D. Cal.) Dkt. Nos. 88 and 92 (Hon. Judge Charles Breyer granting Brady / Giglio cut-off upon motion of Senior Litigator Dan Blank and AFPD Sophia Whiting); see also Defense Motion at Dkt 88, pages 8-9 (collecting Brady / Giglio cut-off orders in the Northern District of California).

  The NorCal District Court should now issue a district-wide Brady order in anticipation of imminent arrival of the Due Process Protections Act.

 

 

Image of The Honorable Judge Kim Wardlaw from https://twitter.com/ladailyjournal/status/927995680081182722

 Image of the Honorable Charles R. Breyer from https://twitter.com/theusscgov/status/807272270464958464 

 

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

 

.

.

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

.

Case o' The Week: Ninth Chokes on Strangling Challenge - Harrington and Double Counting in Assault Guideline

Convicted for strangling, higher guideline for strangling -- and double-counting challenge strangled, too.

  United States v. Harrington, 2019 WL 7161279 (9th Cir. Dec. 24, 2019), decision available here.

Players: Decision by Judge W. Fletcher, joined by Judges Callahan and Christen. Hard-fought appeal by AFD Jeremy Sporn, Federal Defenders of Eastern Washington and Idaho, Inc.  

Facts: Harrington strangled his spouse in Indian Country, and pleaded guilty to assault in violation of 18 USC § 113(a)(8). Id. at *1. (This statute criminalizes strangling a spouse within specified jurisdictions). At sentencing, the government sought three additional levels under USSG § 2A2.2(b)(4), because the offense involved strangling a spouse. Id. Over defense objection the court imposed the enhancement.

Issue(s): “Harrington contends that the district court impermissibly double counted when it applied a three-level enhancement for strangling a spouse under § 2A2.2(b)(4) of the U.S. Sentencing Guidelines (“Guidelines”). He contends that because his conviction was for strangling a spouse, that conduct was already accounted for in the base offense level of § 2A2.2(a).” Id.

Held: “We affirm the district court.” Id. at *1. “Harrington contends that the district court erred in applying the three-level adjustment for strangling a spouse in subsection (b)(4), on the ground that the base offense level in subsection (a) has already taken that conduct into account. We disagree. A plain-text reading of the Guideline indicates that the base offense level contemplated by § 2A2.2(a) does not necessarily capture the conduct detailed in the ‘specific offense characteristics.’” Id. at *3.

Of Note: The acid test for double-counting is whether it is possible to come within the guideline enhancement, without that conduct having been an element for the offense of conviction. See id. at *3 (quoting United States v. Reese, 2 F.3d 870 (9th Cir. 1993)). Here, “strangling” was an element of the federal offense. It was also one (of several) triggers for the specific offense enhancement.

  Judge Fletcher explains, however, that it is possible to trigger this particular base offense level enhancement without a victim being strangled. Id. at *3. Because the conduct tied to the element of conviction – strangling – was not necessarily required for this guideline enhancement, the Ninth finds no double counting. 

  Disappointing result, but the Ninth’s old Reese test ultimately controls the double counting analysis.

How to Use: In Harrington, there was a good-faith legal dispute over a particular guideline enhancement. Notably, the USAO for the ED of Washington was not afraid to defend its legal position in the Ninth. The government allowed Mr. Harrington to enter a conditional plea, and take up a sentence imposed that was over 78 months. See id. at *2. Harrington is a good reminder that a conditional plea needn’t be an all-or-nothing proposition: they aren’t just to preserve appeals for suppression motions. Give Harrington to your local AFPD: other USAO’s should emulate ED WA’s admirable courage in allowing all types of conditional plea agreements.

                                               

For Further Reading: What a three days, in San Francisco.

District Attorney Chesa Boudin

  On January 8, 2020, former public defender Chesa Boudin swore in as the District Attorney for the City of San Francisco. See article here. Among other campaign promises, Mr. Boudin has pledged to eliminate gang enhancements. See article here.  

  The day after Mr. Boudin swore in, US Attorney David Anderson promptly held a press conference and announced federal capital charges for alleged gang members. See article here. 

The Hon. US Attorney David Anderson

  The day after Mr. Anderson's press conference, on January 10th, Mr. Boudin fired the managing attorney of the D.A.’s gang unit. See article here.

  If you’re interested in Federalism, the proper relative roles of federal and city governments in local crime enforcement, and the power struggles over policy decision-making on criminal law issues, spend three days in the City by the Bay.

Image of the 2018 Federal Sentencing Guidelines from https://twitter.com/TheUSSCgov/status/1057716005361905665

Image of District Attorney Chesa Boudin from https://www.kqed.org/news/11793457/can-s-f-s-chesa-boudin-flip-the-script-for-progressive-das-across-the-country 

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

.

Case o' The Week: Merry Christmas, from St. Nintholas - Sanchez and Rule 29 Win (After Stip Facts Bench Trial!)

Charged with "felon in possession."

Stip'ed to all elements.

Bench trial.

Found guilty by the district court.

 And . . . home for the holidays!

United States v. Sanchez, 2018 WL 6720559 (9th Cir. Dec. 20, 2018) (mem.), decision available here.

Players: Mem. dispo by Judges D.W. Nelson, Wardlaw, and visiting DJ Pratt. Admirable reversal for insufficient evidence on a stip facts bench trial for CD Cal AFPD Jonathan Schneller.

Facts: After plea negotiations broke down, Sanchez had a stip facts bench trial on a § 922(g) (felon in possession) charge. Id. He stipulated to an essential element of this crime: that he had suffered a prior felony conviction. Id. This stip was discussed at the pretrial conference, mentioned by the government in opening and closing arguments during the stip facts bench trial, and was filed on the docket after the close of evidence. Id. The AUSA, however, forgot to move the stip into evidence or read it into the record. Id. 

  The defense did not identify this oversight in a Rule 29 motion during trial. Id. Instead, after the district court found Sanchez guilty, the defense moved for a judgment of acquittal arguing that the government had not introduced evidence of all elements. Id. (citing United States v. James, 987 F.2d 648 (9th Cir. 1993)). 

  The district court denied the motion. Id.

Issue(s): “John Alexander Sanchez appeals his conviction, by bench trial, of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). . . . Sanchez contends his conviction was not supported by sufficient evidence, because the stipulation to his prior felony was not properly entered in the evidentiary record.” Id. at *1.

Held: “We agree, and reverse his conviction.” Id. “In James, we held that a stipulation that had not been read to the jury or received into evidence” could not sustain a conviction, because there was no fact in evidence that the jury could take as proved. We noted that even a correct and signed stipulation not so presented would not be enough, and expressly rejected the argument that a defendant’s stipulation outside the trial record removed that issue from consideration such that no further evidence on the issue was required because a stipulation is conclusive proof of the fact agreed to. . . . .  

  “In the absence of the stipulation here, insufficient evidence exists that would convince any rational trier of fact beyond a reasonable doubt that Sanchez had been convicted of a crime punishable by over a year of imprisonment.” Id. (internal quotations and citation omitted).

  

Of Note: Had the government simply agreed to a conditional plea, and allowed Sanchez to appeal the denial of a pretrial ruling, this remarkable reversal of a conviction after a stipulated facts bench trial would have never happened. See Fed. R. Crim. Proc. 11(a)(2).

  We’re told the USAO’s refusal to offer conditional pleas saves government resources. The Feds are right: here, it saved the government the considerable cost of incarcerating Mr. Sanchez after a Section 922(g) conviction.

How to Use: Like a Christmas fruit cake, this brief mem dispo is dense with little nuggets (but is far tastier). The Ninth rebuffs the government’s attempt to limit the legendary James decision to jury trials. The distinction between jury and bench trials is “of no constitutional significance.” Id. 

  The government’s briefing apparently complained that the defense didn’t identify the government’s failure of proof during trial. See Appellant’s Reply Brief at 2018 WL 4740139. That curious complaint doesn’t even merit discussion in this mem. disp. 

  And the Ninth rejects a “judicial admission” pitch that the government threw into a footnote. “Consigning [the argument to] a single sentence in a single footnote” meant that the government had abandoned the argument. Id. at 1 & n.2.

  Good things come in small packages.  

                                               

For Further Reading: Last August, former CJA Panel Attorney David Anderson was nominated by President Trump to serve as the United States Attorney for the Northern District of California. 

  There had been some talk of a confirmation by the Senate last week. Other events – like the unfortunate shut down of the federal government of the United States of America – appear to have intervened. 

  For an update on Mr. Anderson’s confirmation odyssey, see Congressional website here. 

Image of Legal Clause from https://www.amazon.com/dp/B077SPZLZQ/ref=asc_df_B077SPZLZQ1545476400000?tag=merbethomgarshape-20&creative=395261&creativeASIN=B077SPZLZQ&linkCode=asn&ascsubtag=109354952&customId=B0752XM8J2&th=1

Image of Christmas package from https://www.pinterest.com/pin/424745808590079392/ 

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

.

Case o' The Week: Shotcaller Snitch but Feds "Need" Wire - Estrada and Necessity Showings for Title III Wiretaps

   “Necessity” is the mother of discretion.

United States v. Estrada, 2018 WL 4440367 (9th Cir. Sept. 18, 2018), decision available here.

Players: Decision by Judge N.R. Smith, joined by Judge Berzon and D.J. Castel, S.D. N.Y.

Facts: The FBI began an investigation of the “Westside Verdugo,” a street gang “subordinate to the Mexican Mafia.” Id. at *2. During the investigation (and before the wiretap), the FBI flipped Jonathan Brockus, a “shot-caller” in the organization. Id.

  Brockus identified the Mexican Mafia link who “taxed” the Verdugo’s, successfully participated in a controlled delivery to the Mexican Mafia contact, and let the Feds identify a high-level player. Id. The government successfully obtained a Title III wiretap, with an affidavit that discounted Brockus’ value. Id.

  After that initial tap, and before a re-up, Brockus gave information regarding a homicide: that interview wasn’t reported in the wiretap re-up at *3. Id.

  After the wiretap was over, Brockus was interviewed again, gave helpful information, and was a grand jury witness. Id. at *4. Among other challenges, the ultimate defendants in the case moved to suppress the results of the wiretap, claiming that the Title III applications had not established “necessity” under the authorizing statute. Id.

   That motion was denied, and defendants entered a conditional plea preserving their Title III challenge for appeal (needless to say, this case did not come out of the N.D. Cal). Id. at *4.

Issue(s): “Defendants argue that Brockus was in a unique position to ‘penetrate and dismantle’ the conspiracy because he was essentially a ringleader, and that his prior cooperation showed that he was willing and able to cooperate with law enforcement.” Id. at *6 (footnote omitted).

Held: “We affirm the district court’s order denying Defendants’ motion to suppress.” Id. at *1. “We . . . disagree with Defendants’ argument that the district court abused its discretion in determining that the wiretaps were necessary.” Id. at *5. 
  “Because confidential informants may not be believed by a jury, . . . . the testimony of a confidential informant (without significant corroborating evidence) often will not produce an effective case. The district court did not abuse its discretion in drawing that conclusion based on the specific facts presented in the affidavits.” Id. at *8.

Of Note: Habeas counsel fighting claims under AEDPA have the first claim to complain about their controlling body of law. 
  The stalwart attorneys who challenge Title III taps, however, are a close second. 
  In Estrada, the Feds nailed the gang’s Tony Soprano: the self-admitted “shot-caller.” This boss-snitch flipped early in the case, successfully set up a controlled drug sale with a heavy in another gang, coughed up a name in a homicide, gave information “helpful to the investigation” and testified before the grand jury. Yet the Ninth still upheld the “necessity” of this wiretap. 
  Is a wiretap per se “necessary" under  § 2518(1)(b) and (3)(c), if the case involves a RICO investigation? After Estrada, it is tough to glean what Title III’s statutory “necessity” requirement actually entails.

How to Use: In Estrada, Judge N.R. Smith spills much ink explaining how unreliable snitches are. See id. at *7. And this particular informant, the Court emphasizes, gave the FBI some grief. Brockus allegedly tried to shake surveillance, withheld information from his handlers, and was generally squirrelly, according to the FBI affiant. Id. 
  (Query: Did the AUSA reveal all of this Brady / Giglio information on this snitch to the victims of Brockus’ cooperation, before their pleas? Interesting Cal. R. Prof. Conduct 5-110 question). 
   Future Title III necessity challenges should cabin Estrada's necessity holding to its own “bad snitch” facts. This is particularly true because the Ninth emphasizes that it is merely finding no abuse of discretion in this case. (Significantly, the Court makes a point to express "no opinion on whether the government was conclusively entitled to a wiretap based on the facts in the affidavit.”) Id. at *8 & n.9.  

                                               

For Further Reading: In 2017, 37 wiretaps were authorized in the Northern District of California.

  Over 40% were authorized in San Jose, the District’s smallest venue.

  In 2017, over 21% of the entire District’s taps were authorized by a single San Jose judge. 

Uncle Sam is listening, in the Northern’s Southern climes. See 2017 Wiretap report here. 

Image of Westside Verdugo mural from https://www.youtube.com/watch?v=yjB0IW08isY.

Image of wiretap from https://www.dailysabah.com/politics/2014/11/20/gulenists-calculate-every-detail-to-wiretap-erdoganindictment-reveals

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

.

.

Case o' The Week: Brown and Blue and Read All Over - Bud Ray Brown and Federal Escape Charges (from State Jails!)

  No good deed goes unpunished (by a federal prosecutor).

United States v. Bud Ray Brown, 2017 WL 5586562 (9th Cir. Nov. 21, 2017), decision available here.

Players: Decision by visiting First Circuit Judge Lipez, joined by Judges Wardlaw and Owens.  

Facts: Brown was serving a federal sentence when Washington dragged him into state custody on a writ ad prosequendum (related to a state murder charge). Id. at *1. While Brown was in a county jail, a rope made out of bedclothes was discovered hanging out of his cell -- the window itself was gone. Id.

  [Ed. note: watch the fascinating video about this attempt at this link. An anorexic octopus couldn’t escape through the five-inch-wide window slits at the Spokane County jail].

  Brown’s cellmate, Henrikson, was facing federal charges. When Henrikson went to federal trial, the AUSA tried to admit this attempted escape as evidence of guilt. Id. Brown exonerated his cellie with a handwritten declaration, where Brown took full blame for the attempted escape. Id.

  The feds then spun around and indicted Brown for attempted escape, from a county jail. Id. Brown entered an unconditional plea of guilt to the charges. Id.

Issue(s): “For the first time in this circuit, we address the impact of a writ of habeas corpus ad prosequendum on the question of whether an inmate serving a federal sentence remains under ‘the custody of the Attorney General’ as per 18 U.S.C. § 751(a) when he is held at a state-run institution pursuant to the writ. [ ] Brown appeals the district court’s denial of his pre-plea motion to dismiss, filed, in part, on the ground that he was not in federal custody as a matter of law at the time of the attempted escape.’ Id. at *1.”

Held: “We now hold that Brown remained under the custody of the Attorney General for purposes of § 751(a) despite his incarceration at a state-run jail, and affirm the judgment of the district court in full.” Id.

Of Note: Wait - why did the AUSA bother to charge Brown with federal attempted escape (and from a state jail, to boot?) After all, the federal attempted-escape indictment didn’t come down until five months after the attempt to escape from county jail was thwarted. Id. at *4. (Plus newscasters and jailers couldn't keep a straight face when trying to describe this inane escape attempt). 

  A single, critical fact changed before the AUSA decided indict a federal attempted escape (from a local county jail): Brown’s handwritten confession offered in his cellmate's trial, taking the blame for the attempted escape and exonerating his cellie.

  Despite this troubling history, the Ninth summarily rejects Brown’s prosecutorial vindictiveness claim in five brief paragraphs. Id. at *4. There is not even the solace of dicta, worrying about the impact of this AUSA’s actions on the integrity of federal criminal trials.

  Brown sends a chilling message to witnesses with the temerity to testify for the defense: a federal indictment may be your reward. Use Brown for your Sixth Amendment fight for defense-witness immunity. The Ninth has now documented the very real dangers that await witnesses who dare to speak up for our clients.

How to Use: The silver lining in this opinion is welcome language on the ability to even take up this appeal, despite the fact that Brown did not have a conditional guilty plea. The Ninth helpfully explains that Brown’s core appeal is a jurisdictional claim, “challenging a conviction independently of factual guilt.” Id. at *2. It is therefore not precluded by the Fed. R. Crim. 11(a)(2) bar on appeals after unconditional pleas. Id. Helpfully, the opinion then collects other issues that dodge the appellate bar after unconditional pleas. Id. at *2 & n.2. 

  Most notably, the prosecutorial vindictiveness claim described above is tackled by the Ninth on appeal. Interesting.

  The take-away? With a solid jurisdictional hook to get you in the Ninth’s door, looks like ancillary (but related) arguments can avoid the 11(a)(2) bar – despite an unconditional plea. 

  Very welcome news, in a world where the Feds seem increasingly desperate to shut down all defense appeals.

                                               

For Further Reading: Feeling blue? Senators are, too. 
  The longstanding “blue slip” rule allowed Senators to have a meaningful say in judicial appointments. Last week, Senator Grassley (R-Iowa) announced that confirmation hearings would be going forward for two circuit nominees, despite the absence of blue slips (including one missing from a GOP Senator). See article here.

Image of the Spokane County jail windows and bedclothes-rope from this case, from http://www.krem.com/news/crime/tiny-jail-windows-deny-masterminds-escape/84305621

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

.