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

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Case o' The Week: No Tercero "Crack" at Resentencing - Tercero, USSG 1B1.10, and FSA Resentencing

  First Round: the district court finds the defendant a minor player, varies downwards from the guideline range by 15%, and imposes a crack cocaine sentence a year below the low-end of the guideline range

  Second Round: After the Fair Sentencing Act is passed, the district court gives the low-end of the new guideline range at resentencing (a mere two months off!), and holds it can’t depart or vary downwards from the guidelines.

     There is, sadly, no Tercero round.

United States v. Tercero, 734 F.3d 979 (9th Cir. Oct. 31, 2013), decision available here.

Players:  Decision by Judge D.W. Nelson, joined by Judges M. Smith & Ikuta. Hard-fought appeal by ND Cal CJA stalwart Mark Rosenbush.

Facts: Teniah Tercero was charged with conspiracy to distribute crack cocaine, and distribution of crack. Id. at 980. The plea agreement to the distribution charge permitted her to argue down to a (below-guideline) sentence of 72 months. Id. That’s where the district judge landed, concluding Tercero’s minor role “was less serious than a mechanical application of the guidelines would suggest.” Id. The plea agreement included the ND Cal’s USAO’s general appellate waiver provision. Id. at 982. After sentencing, the Fair Sentencing Act was passed and (amended) USSG Section 1B1.10 was adopted by the Sentencing Commission. Id. Tercero came back for resentencing under Section 3582(c) (the government didn’t object). Id. The district went down to the low-end of the new crack guidelines – 70 months – but held that under USSG § 1B1.10(b)(2)(A) it could go no lower. Id. at 981. (USSG § 1B1.10(b)(2)(A) has a policy note, added in 2011, that prohibits courts to resentence below the minimum of the amended guideline range. Id.) Tercero appealed.

Issue(s): “Tercero contends that § 1B1.10 contradicts Congress’s general intent in passing the FSA, which was to restore fairness to Federal cocaine sentencing.” Id. at 982 (quotations and citation omitted).

Held: “[W]e remain unpersuaded that Congress intended the FSA to implement the retroactive reduction of sentencing ranges in any particular way, much less one that conflicts with § 1B1.10 as revised.” Id. at 982-83. “[W]e hold that the district court correctly interpreted and applied both § 3582(c) and § 1B1.10.” Id. at 981.

Of Note: What’s with the substantive discussion of Tercero’s appeal, when there was an appellate waiver in the plea agreement? That’s the government’s complaint, but the Ninth was unmoved: “Tercero did not waive her right to appeal the reduced sentence.” Id. at 981. The broad waiver in the plea agreement (she did “agree to waive any right . . . to appeal any aspect of [her] sentence”) does not encompass the right to appeal a § 3582(c) decision.” Id. at 981 (citing Lightfoot, 626 F.3d at 1095).

How to Use: Crack resentencing has pretty much made its way through the pipeline. The Fair Sentencing Act is not, however, just yesterday’s news – battles fought in the FSA wars will reverberate when the Commission gets around to fixing the many other lousy guidelines. Today’s plea agreements are tomorrow’s Section 3582(c)(2) fights – and Tercero’s waiver (or rather, non-waiver) discussions are of some solace when forced to swallow waiver provisions in many standard USAO plea agreements. For an interesting, though doctrinaire, summary of the procedural issues arising from Section 3582 resentencing, see the Commissions’ outline here.

                                               

For Further Reading: Crack resentencing was the first major guideline reduction in many a year. Is it prudent to really fret over Section 3582 resentencing waivers for current cases? After all, how likely is it that the Commission (and lightning) are really going to strike twice?  

  Um, very. A.G. Holder and Congress are signaling a new skepticism towards the barbarically high federal drug sentences. Changing membership on the Sentencing Commission may let the USSG catch up to the national gestalt. In August, the Commission voted to begin a “sweeping” review of federal sentences for drug dealers. See article here. It has made it an official priority to review – and possibly amend – the Drug Quantity Table in § 2D1.1. See article here. 

  Ms. Tercero’s miserly two-month FSA reduction gives much food for thought on how to anticipate and litigate some of these positive guideline changes that may be on the horizon.

Image of crack cocaine from http://www.justice.gov/dea/pr/multimedia-library/image-gallery/cocaine/crack_cocaine8.jpg

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

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Case o' The Week: Ninth Provides Concrete Answer, Sierra-Acosta and Assault on Federal Officer

Is it assault on a federal officer if you lob a hunk of concrete at the head of a border agent, but the officer never sees it?

No. (At least, it isn't under the “intent-to-frighten” theory of assault). United States v. Acosta-Sierra, 2012 WL 3326623 (9th Cir. Aug. 15, 2012), decision available here.

The Honorable Judge Dorothy W. Nelson

Players: Decision by Judge Nelson (left). Victory for San Diego Ass’t Defender Jason Ser.

Facts: Acosta-Sierra, a mentally-ill man, chucked a baseball-sized chunk of concrete at a border officer. Id. at *1. The rock missed the officer’s head by two feet -- the officer never saw it. Id. Moments later, the officer saw other officers arrested Acosta-Sierra, and began to feel “a little scared.” Id. Acosta-Sierra was convicted at a bench trial of 18 U.S.C. § 111(a)(1), assault on a federal officer. Id. at *2.

Issue(s): “The question here is whether Acosta-Sierra is guilty of assault if the rock he threw narrowly missed Officer Lopez, and Officer Lopez did not see the rock or feel afraid until immediately after it landed.” Id. at *4.

Held: “The first type of common law assault is an attempt to commit a battery . . . The second type of criminal assault, sometimes called an ‘intent-to-frighten,’ derives from the law of torts, and recognizes the importance of protecting individuals from the mental disturbance of being put in reasonable apprehension of bodily harm.” Id. at *3-*4. 

Although Acosta-Sierra’s rock-throwing seems to be a straightforward example of attempted battery, the district court analyzed his conduct under only the ‘reasonable apprehension of harm’ prong of common law assault.” Id. at *4. “We conclude that the district court erred in its application of the ‘reasonable apprehension of harm’ prong of common law assault. However, because the evidence would have been sufficient to convict Acosta-Sierra of attempted battery if the district court had not relied on the erroneous model jury instruction then in effect, we remand for retrial under the proper standard.” Id. at *5. 

“The district court erred in concluding that Acosta-Sierra caused a reasonable apprehension of immediate bodily harm under an objective standard of reasonableness because the district court did not limit its consideration to the facts known to Officer Lopez. Officer Lopez did not see Acosta-Sierra before he threw the rock and did not realize what had happened until after the threat of imminent bodily harm had passed.” Id. at *7.

Of Note: This opinion is fascinating discussion of the surprisingly complex assault statute. Judge Nelson devotes much effort to distinguishing and explaining the two theories of assault. 

The disappointing corner of the opinion is the later mens rea discussion relating to another count. Id. at *9. Despite ambiguity in the mens rea requirement (revealed in the tension between the Ninth’s Jim and Chapman) the Court sticks to the view that Section 111 assault is a general intent crime. Id. at *11. The result? Diminished capacity is not a defense in Section 111 cases, and the shrink here was properly excluded. Id. at *12 (“While mental health evidence would have explained why Acosta-Sierra subjectively believed that self-defense was necessary under the circumstances, it would not have supported the proposition that his actions were objectively reasonable.”)

How to Use: The “rock-throwing” count in this indictment did not specify the theory of prosecution. Id. at *9. Because there are two ways to prove Section 111 assault – and because the two theories have different factual requirements – a bill of particulars in Section 111 cases may make sense. Because the government had both theories available here, this win meant a reversal for retrial on the “attempt to assault” prong – instead of a flat appellate reversal. Id. at *10.

                                               

For Further Reading: It was a big week for San Diego. In Aguilar-Turcios v. Holder, 2012 WL3326618 (9th Cir. Aug. 15, 2012), amicus San Diego A.F.D. Steve Hubachek brings home a big win for Aguila Montes de Oca jurisprudence. Judge Paez’s opinion carefully dissects an AMdO issue in the immigration context and ultimately concludes a military conviction doesn’t qualify (much to dissenting Judge Bybee’s chagrin.) An important victory, particularly in the immigration context -- worth a close read.

Image of the Honorable Dorothy W. Nelson from http://www.peerie.com/Government/25195/Dorothy-W.-Nelson/

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Case o' The Week: "Honest Services" in the Eye of the (AUSA) Beholder, Weyhrauch

A slow week for criminal cases lets us stretch back a bit to a very interesting -- albeit disappointing -- decision on public corruption. United States v. Bruce Weyhrauch, No. 07-30339, 2008 WL 5003366 (9th Cir. Nov. 26, 2008), decision available here. In Weyhrauch, Judge Fisher, joined by Judges D.W. Nelson and Tashima, creates a new rule in the Ninth Circuit: the federal government can now prosecute under an "honest services" theory of mail fraud, even if the public official did not actually violate any state law. Bad news for former Alaska State Representative Weyhrauch, above in the red.

Players: Decision by Judge Fisher, joined by Judges D.W. Nelson and Tashima.

Facts: Bruce Weyhrauch was a lawyer and member of the Alaska House of Representatives. Id. at *1. He was charged federally with “honest services” mail fraud, on the theory that he gave favorable legislative treatment to an oil-drilling company with the understanding that the company would hire him in the future to provide legal services. Id.

The district court granted a defense motion to exclude evidence relating to this “honest services” fraud, because Alaska state law did not prohibit Weyhrauch from negotiating future employment with a company affected by pending legislation. Id. at *2. The government took an interlocutory appeal of this exclusion order. Id.

Issue(s): “This is an interlocutory appeal by the government of the district court’s pretrial order excluding evidence from a mail fraud prosecution. It presents a matter of first impression in this circuit – whether a federal honest services mail fraud prosecution under 18 U.S.C. §§ 1341 and 1346 requires proof that the conduct at issue also violated an applicable state law.” Id. at *1.

Held: “[W]e disagree with the district court that a state law violation is required, and thus reverse the court’s order excluding certain evidence from trial.” Id. at *1.

Of Note: How many bites of the apple does the government get to properly certify an interlocutory appeal? Four, in this case! Id. at *2. Must be a big apple.

Sure would be nice to get four Mulligans in defense appeals, or four habeas petitions in the post-AEDPA world. The government better shape up, though: the Ninth “shall not be so forgiving in the future.” Id. at *4. The feds may only get three chances to make it right, next time . . . .

How to Use: Weyhrauch creates a new Ninth Circuit rule and deepens a circuit split. Judge Fisher starts by tracing the history of the “intangible rights” theory of honest services fraud. Id. at *5. The Third and Fifth Circuits have adopted rules that require a showing that the public official violated an independent state (or, in the Third, federal) law for an “honest services” conviction. Id. at *5. The First, Fourth, Seventh and Eleventh Circuits, however, have all held that there’s a uniform federal standard for “honest services” (although they haven’t agreed with what that standard is). Id. at *6. In these circuits, there’s no need for an independent state law violation. Although Judge Fisher concedes the policy considerations supporting the Fifth Circuit’s rule, he ultimately rejects the “state law limiting principal.” Id. at *7-*8.

While a disappointing holding, this is a well-written and balanced decision: it seems like an issue the Supremes should take up again, given the controversy over this important new rule. This is particularly true because the Ninth doesn't actually articulate what the "uniform" federal definition of honest services is. Maybe it's like obscenity: you know it when you see it?

This is an important new Ninth Circuit rule – and a dangerous one at that. The Court assures us that here, Weyhrauch’s alleged conduct falls within the two “core” categories of honest services fraud. Id. at *8. After adopting its new rule, however, the panel fails to give us the “uniform” definition federal “honest services” fraud. Because there’s now no state-law limitation on the theory of prosecution, and because there is in fact no clear “uniform” federal definition, the upshot is that federal prosecutors will be defining and testing the outer boundaries of this “intangible right to honest services.” In other words, “honest services” are now what P.I.S. AUSAs say they are.

Even honest state officials should be spooked.

For Further Reading: The Anchorage Daily News has an interesting collection of stories on the ongoing saga of the Weyhrauch litigation (and links to summaries of the corruption trials of other Alaska politicians, including Senator Ted Stevens), here. Mr. Weyhrauch has had a bad year or two: he had to be rescued by the Coast Guard in April 2007 after a boating trip in Auke Bay. See newspaper article here.


Image of former Representative Bruce Weyhrauch from http://alaskalegislature.com/images/050607/8204_500.jpg

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org



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Case o' The Week: Bybee Boosts Immunity, Straub

Judge Bybee (left) gives a big boost to defense immunity in an important decision that elaborates on the Williams test -- permitting the effects of the government's immunity decisions to establish a constitutional violation. See United States v. Straub, 2008 WL 3547541, (Aug. 15, 2008), decision available here.

Players: Decision by Judge Bybee, joined by Judges D.W. Nelson and Kleinfeld.

Facts: Straub, a member of Oregon’s “White Neck Crew,” allegedly dealt drugs and shot at other dealers as he stole from them. Id. at *1. An immunized government snitch pegged Straub as the shooter in one charged robbery. Id. The defense proffered an impeachment witness who would recount a bar confession wherein the snitch admitted to being the shooter. Id. at *2. This defense witness, however, wanted immunity – and the court refused to give it. Id. at *2-*3.

After conviction at trial, the Ninth remanded in a mem dispo for an evidentiary hearing on the need for court-ordered immunity. Id. at *3.

This hearing revealed that the government had offered “use immunity, informal immunity, sentence reductions, and even cash . . . to the prosecution’s other witnesses for their testimony against Straub” Id. at *5. Eleven of twelve government witnesses had gotten some sort of break. Id. The district court nonetheless stood by its initial denial of immunity, finding no evidence of prosecutorial misconduct. Id. at *7. Straub appealed again.

Issue(s): “Straub claims that the . . . court’s refusal to compel the prosecution to grant use immunity to [his] defense witness . . . violated his due process rights under the Fifth Amendment . . . .

We must address the question left open by Williams, whether a defendant requesting compelled use immunity on the ground that his witness has relevant testimony that directly contradicts that of an immunized prosecution witness must prove that the prosecution’s purpose in denying use immunity to the defense witness was to distort the fact-finding process, or merely that the prosecution’s selective denial of use immunity had the effect of distorting the fact-finding process.” Id. at *1.

Held: “Even where the government has not denied a defense witness immunity for the very purpose of distorting the fact-finding process, the government may have stacked the deck against the defendant in a way that has severely distorted the fact-finding process at trial . . . . Id. at *12.

"[W]here the government has liberally used its discretion to grant immunity to numerous witnesses, and the defendant’s witness could offer relevant testimony that would directly contradict that of an immunized government witness, the trial may become so fundamentally unfair that the defendant’s due process rights are implicated.” Id.

“We now hold that for a defendant to compel use immunity the defendant must show that: (1) the defense witness’s testimony was relevant; and (2) either (a) the prosecution intentionally caused the defense witness to invoke the Fifth Amendment right against self-incrimination with the purpose of distorting the fact-finding process; or (b) the prosecution granted immunity to a government witness in order to obtain that witness’s testimony, but denied immunity to a defense witness whose testimony would have directly contradicted that of the government witness, with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial.” Id. at *14.

"We reverse the district court's denial of Straub's request to compel use immunity." Id. at *18.

Of Note: Straub is a leading case on defense immunity with a valuable new rule for the most-likely trial scenarios.

In Williams v. Woodford, the Ninth held that a refusal to grant immunity rises to a constitutional violation when 1) the defense witness’s testimony is relevant, and 2) the prosecution’s refusal to grant immunity deliberately distorted the fact-finding process. 384 F.3d 567, 600 (9th Cir. 2004). Good luck, of course, getting a prosecutor to admit to “deliberate distortion.”

Straub’s new rule is that the defense can prove this second prong by showing that the effects of immunity for government witnesses – with no immunity for defense witnesses – “stacked the deck against the defendant.” Id. at *12. This is a much more manageable defense burden: proof of prosecutorial intent via proof of effects.

How to Use: Ask! The government here argued that the defense never formally requested use immunity. Id. at *16 n.9. Luckily, Judge Bybee rejects that complaint as too formalistic – but why run the risk? A brief letter or a formal request on the record for a government grant of immunity helps to block this government dodge.

For Further Reading: It helps to know the DOJ’s immunity rules when going down this road. They can be found here.




Image of Judge Jay Bybee from http://www.ibabuzz.com/politics/2008/02/13/circuit-judge-accused-of-pro-torture-bias/

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org.



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