Case o' The Week: Six v. Five, Means Two v. Eight -- Collazo En Banc, and Mens Rea for 841 Drug Cases and 846 Conspiracies

“This should be an easy case.” 

The Honorable Judges Sandra Ikuta (Majority Opinion), and William Fletcher (Dissent)

United States v. Collazo, 2020 WL 7052298 (9th Cir. Dec. 2, 2020) (en banc) (W. Fletcher, J., dissenting), decision available here.

 Players: En banc decision by Judge Ikuta, joined by Judges M. Callahan, M. Smith, Jr., Miller, Bade and Bress.

  Thoughtful dissent by Judge W. Fletcher, joined by C.J. Thomas, and Judges Nguyen, Watford and Hurwitz.

  Hard-fought battle by former Fed. Def. San Diego AFPD Ben Coleman, among many other amicus allies.   

 Facts: Collazo his co-D’s were tried for, among other things, violating 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 841(b)(1)(B)(i), and 846. Id. at *3. The case involved schemes to smuggle drugs into jails.

  The jury was instructed that, if they found the defendants guilty of these conspiracy charges, they would have to make special findings as to the type and amounts of drugs if they were “reasonably foreseeable or fell within the scope of the [conspiracy’s] agreement.” Id.

  The jury found requisite drug amounts to trigger big mand-mins for six defendants. Id. at *4. See blog entries here 

 Issue(s): “[W]e voted to hear the appeals en banc to clarify our jury instructions for conspiracy under § 846 and the facts that trigger the penalties under § 841(b) (1)(A)–(B).” Id. at *4.

 Held: “[W]e conclude that in order to obtain a particular sentence under § 841(b)(1)(A)(viii) and § 841(b)(1)(B)(i) for a violation of § 841(a), the government must prove beyond a reasonable doubt the specific type and the quantity of substance involved in the offense, but not the defendant’s knowledge of (or intent) with respect to that type and quantity.” Id. at *14.

  “[W]e conclude that to obtain a conviction and a particular sentence for conspiracy to distribute controlled substances under § 846, the government must prove only that the defendant's mental state was the same as if the defendant had been charged with the underlying offense. Applying that principle here, the government need not prove the defendant’s knowledge of the drug type and quantity under § 841(b).” Id. at *17.

 Of Note: Judge Fletcher’s compelling dissent sets forth precisely why Collazo is such a deeply troubling outcome. Id. at *20. The majority, he explains, breaks with SCOTUS’s increasing concern with the protections of mens rea requirements in criminal statutes. The majority decision also dodges the natural interpretation of a statute that does, after all, start with the words “knowingly” and “intentionally!” Id. at *23 (quoting Section 841(a)(1)).

  Will Collazo be the law of the Circuit until the Supremes grant cert.? Maybe – or maybe Ninth Circuit Rule 35-3 will come to the rescue. . . . (“In appropriate cases, the Court may order a rehearing by the full court following a hearing or rehearing en banc.”)

 How to Use: This partisan-split opinion (six majority republicans versus five democrat dissenters) splits in other ways as well. Most notably, the Ninth parts ways with eight other circuits in this outlier opinion. Continue to preserve mens rea objections to Section 841 and 846 instructions: whether through a full en banc decision, or a Supreme Court reversal, this decision is unlikely to be the last word on federal drug mens rea requirements.

  ND Cal. Sr. Litigator Dan Blank also noted Collazo has parted ways with Buckland: Judge Ikuta now officially deems drug type and quantity as elements after Alleyne. Id. at *7 (“Under Alleyne’s reasoning, the facts of drug type and quantity under § 841(b) constitute elements or ingredients of the crime because they affect the penalty that can be imposed on a defendant) (emphasis added). 

 Now that the Ninth’s characterization of these facts has -- evolved – from the “sentencing factors” of Buckland to the “elements” of Collazo,  demand a Rule 29 dismissal to the entire drug case when the charged “elements” of specific drug type and quantity are not proved.                                                 

For Further Reading: “The presumption of mens rea embodies deeply rooted principles of law and justice that the Supreme Court has emphasized time and again. The presumption of mens rea is no mere technicality, but rather implicates ‘fundamental and far-reaching’ issues . . . .”

Judge Fletcher, dissenting in Collazo? 

Nope: this full-throated tribute to mens rea requirements is from then Judge, now Justice - Kavanagh. See United States v. Burwell, 690 F.3d 500, 527 (D.C. Cir. 2012) (Kavanaugh, C.J., dissenting).

 

 

 

Image of Judge Ikuta from https://www.law.com/therecorder/2019/07/24/parties-cant-have-their-day-in-court-and-compel-arbitration-too-ninth-circuit-rules/ . Image of Judge W. Fletcher from https://www.taiwannews.com.tw/en/news/3089662.

 

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

 

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Case o' The Week: Bacon Fried Old Expert Rule - Bacon and Remedies for Daubert Expert Error

Barabin burned by Bacon.   

United States v. Bacon, 2020 WL 6498258 (9th Cir. Nov. 5, 2020) (en banc), decision available here.

 Players: Decision by CJ Thomas, joined by Judges Paez, Berzon, Rawlinson, Callahan, Murguia, Hurwitz, Owens, Miller, Bade and Lee.   

 Facts: Bacon and his co-D, Ray, were charged with assault in a federal prison. See blog entry on Ray, available here (describing facts in greater detail). Before trial Bacon gave notice of an insanity defense and a shrink. The district court barred the insanity defense, and the defense mental health expert.

  The three-judge panel held on appeal that the district court abused its discretion in excluding the expert testimony. See United States v. Ray, 956 F.3d 1154 (9th Cir. 2020). The panel (reluctantly) remanded for the DJ to consider the expert again and for a new trial – regardless of whether the district court found the expert admissible. Id. at 1161. In a concurrence, Judge Watford complained about this outcome and criticized the older Barabin rule. Id.

  The case went en banc.

 Issue(s): “We voted to rehear this case en banc to consider what the proper remedy is on appeal when we conclude that a district court has erred under Daubert . . . ., by admitting or excluding expert testimony on one ground, but when we cannot tell from the record whether the admission or exclusion was nevertheless correct on other grounds.” Bacon, 2020 WL 6498258 at *1.

 Held: “Recognizing that there are different circumstances involved in every case, we conclude that a bright-line rule requiring a specific remedy is inappropriate. Instead, each panel should fashion a remedy ‘as may be just under the circumstances.’ 28 U.S.C. § 2106. The remedy may include remanding for a new trial or remanding for the district court to first determine admissibility, then requiring a new trial only if that admissibility determination differs from that in the first trial. We remand this case to the three-judge panel so that the panel may, in its discretion, determine the appropriate remedy in this case.” Id.

   “[A]pplying section 2106, we hold that when a panel of this Court concludes that the district court has committed a non-harmless Daubert error, the panel has discretion to impose a remedy as may be just under the circumstances . . . . Circumstances may require a new trial in some instances; circumstances may dictate a limited remand in others. Of course, the discretion of a panel is not unfettered. The normal rules of appellate review of evidentiary decisions still apply. And nothing in our decision removes Daubert’s important gatekeeping function. But our holding today restores Daubert errors to the usual realm of appellate review and remedy, rather than keeping them in a separate, special category.” Id. at *4.

 Of Note: There’s no good spin: this new rule is bad for the defense. CJ Thomas recounts the history of the old automatic-retrial rule, and the en banc battles during the last decade to overrule it. See id. at *2-*3. This “retrial” rule, that had been created in the civil context, was extended to criminal cases in United States v. Christian, 749 F.3d 806, 813-814 & n.4 (9th Cir. 2014).

There were good reasons for the old rule: the new approach of post-verdict analysis “does not protect the purity of the trial, but instead creates an undue risk of post-hoc rationalization. This is hardly the gatekeeping role the Court envisioned in Daubert and its progeny.” Id. at *2, citing Mukhtar v. Cal. State Univ. Hayward, 319 F.d 1073, 1074 (9th Cir. 2003).

  Unfortunately, however, the tide has shifted in the Ninth: this new Bacon rule gained the support of a unanimous en banc court, with nary a dissent.

 How to Use: It is a brave new world, for Daubert error on appeal, and there’s precious little guidance in Bacon to Ninth three-judge panels, on which remedy is appropriate. Don’t give up on retrial after Bacon: CJ Thomas makes it clear that that option is still on the table. Id. at *4.                                             

For Further Reading: See any interesting news, this weekend? 

  As election results sink in, time to start wondering about Biden’s appointments – and specifically, on the A.G. to replace Barr at the DOJ. For an interesting discussion of this horse race, see Meet the Contenders for Biden’s Cabinet, available here. 

 

 

Image of bacon from https://www.thekitchn.com/archive/2018/02/15

 

 

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcal.fpd

 

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Case o' The Week: Go Big, or Go Home - Collazo E.B. Order with questions, and (Potential) Drug Mens Rea requirements

  Looks like we’ve won the battle.

Collazo En Banc Court

  Do we now have a shot at the war?

United States v. Robert Collazo, Nos. 16-50509 (9th Cir. Jan. 29, 2020) (Ord.).

Players: New questions from the en banc panel: CJ Thomas, Judges W. Fletcher, Callahan, M. Smith, Ikuta, Nguyen, Watford, Hurwitz, Miller, Bade and Bress.

   Admirable en banc argument by SD Cal Defender alumnus Ben Coleman.  

Facts: Last September the Ninth ordered the Collazo case to be reheard en banc. See overview of this en banc order here. 

  The Ninth resolved to sort-out the jury instructions for the “mess” of drug conspiracy mens rea requirements. On January 13 the case was argued before the en banc court. See video of en banc argument here.  

  Roughly two weeks after oral argument, the Court issued the following questions:

Issue(s): “1. How do United States v. Feola, 420 U.S. 671 (1975), and its progeny in this Circuit . . . apply to the government’s burden of proving that a defendant is guilty of conspiracy under 21 U.S.C. § 846 for agreeing to commit an offense under § 841(a), (b)? The parties should address whether the requisite intent for conspiracy under § 846 is the same as the requisite intent for distributing a controlled substance under § 841(a), (b). The parties should also address whether the government has to prove beyond a reasonable doubt that the scope of the defendant’s agreement for a § 846 and § 841(a), (b) offense includes a particular drug type and quantity. In connection with these issues, does the rule in Feola apply only to jurisdictional elements, or does it also apply to elements such as drug type and quantity?

  2. Whether this Court should adopt Judge W. Fletcher’s position in United States v. Jefferson, 791 F.3d1013, 1019 (9th Cir. 2015) (W. Fletcher, J., concurring), as to both substantive drug offenses under § 841(a) and conspiracy offenses under § 846. See Jefferson, 791 F.3d at 1023 (“I do not believe the government can subject the defendant to escalating mandatory minimums . . . without proving that he knew which illegal drug he was importing.”).

  3. Whether this Court should adopt the approach reflected in United States v. Gentry, 941 F.3d 767, 785–86, 794 (5th Cir. 2019) (requiring that defendant “knew or reasonably should have known that the scope of the conspiracy involved at least 50 grams of a mixture containing a detectable amount of meth”). 
  United States v. Callazo,  No. 15-50509, Ord., Dkt. Entry 171 (emphasis and hyperlinks added).

Held: Awaiting the decision of the en banc court.

Of Note: Defense counsel Ben Coleman slugged away for his client in this argument. He was enthusiastic for Judge Fletcher’s much bigger goal of revising drug mens rea requirements, but appropriately focused on the narrow path to victory for his specific client: “conjunctive” jury instructions.

  Ben was unfailingly diplomatic, but –well, watch the oral argument at around 24:20. He can’t resist gently noting the irony that it was the Ninth itself that created this mess nearly twenty years ago in Buckland. In Buckland, the Ninth avoided an Apprendi attack by (questionably) re-characterizing drug type and quantity as “material facts” and not “sentencing factors.” United States v. Buckland, 289 F.3d 558,568 (9th Cir. 2002). 

  After the Ninth avoided serious Apprendi constitutional challenges to the drug statutes in Buckland, it never went on to finish the job. The Court never required that these newly-minted pseudo-elements for drug offenses also carry mens rea requirements. See United States v. Carranza, 289 F.3d 634, 644 (9th Cir. 2002) (“the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed; the government need only show that the defendant knew that he imported or possessed some controlled substance.”) (emphasis in original). 

  In sum, the Callazo en banc court today reaps the chaos of Buckland seeds sown eighteen years ago.

  Ben knows of what he speaks -- he and former San Diego AFD Steve Hubachek were two of the attorneys at the forefront of that bitter Buckland battle. Funny old world, to now watch Mr. Coleman (politely) addressing the downstream unintended consequences of the unfortunate Buckland decision, two decades after it was delivered.

How to Use: Spoiler alert: we won the battle (probably).

   During the en banc argument, Judge M. Smith deftly boxed the government into conceding its case -- conjunctive instructions will likely be the e.b. court’s holding. (Such an admirable cross that it earned a chuckle from the Chief).

  The far more interesting remaining issue that remains for the en banc Court is whether Judge Fletcher’s compelling Jefferson concurrence will prevail.  [Ed. opinion: it should!].

Hon. Judge W. Fletcher

   Read Judge Fletcher’s Jefferson concurrence and preserve these drug mens rea issues: this is a very hot topic, and (hopefully) a profoundly important legal development.

                                               

For Further Reading: Judge W. Fletcher’s must-read Jefferson concurrence is available here, at page 13. 

  For an overview of Judge Fletcher's concurrence, see blog entry  here. 

Screen shot of en banc court from https://www.youtube.com/watch?v=m3jMm-P7GWY

Image of the Honorable Judge W. Fletcher from https://www.yahoo.com/news/scholars-liberal-reputation-9th-circuit-overblown-080453616.html

Image of, "as you sow so shall you reap" from https://www.youtube.com/watch?v=P2emkEainUw 

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

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

 Much Ado about Nothing, or a Comedy of Errors?

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

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

Hon. Judge Marsha Berzon

Hon. Judge Daniel Collins

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

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

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

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

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

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

  Quite the fight, ‘twixt left and right.

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

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

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

                                               

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

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

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

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

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

 “Or” no more, urge fans of “and.”

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

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

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

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

  The district court refused. 

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

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

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

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

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

Held: T.B.D.

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

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

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

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

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

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

                                               

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

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

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

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

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

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Case o' The Week: Waver in Disfavor - Depue, Waiver and Forfeiture of Appellate Claims

  An en banc court of the Ninth has found that a defendant forfeited his challenge to a guideline sentence.

  Hooray!

United States v. Depue, 912 F.3d 1227(9th Cir. Jan. 14, 2019) (en banc),

decision available here.

Players: Decision by Judge Berzon, joined by CJ Thomas, and Judges Fletcher, Paez, Berzon, M. Smith, Ikuta, Christen, Nguyen, Watford, Hurwitz, and Friedland. 

  Federal Defender Amicus effort by AFD’s Vince Brunkow and Michael Marks, Federal Defenders of San Diego, Inc.  

Facts: Depue, who represented himself, was convicted of mortgage fraud after a jury trial. Id. at 1230. The government recommended a whopping OL 39, based on its loss theories. Id. at 1231. The PSR parroted this calculation: pro se defendant Depue didn’t object. Id. 

  Depue was sentenced to over twenty-one years. 

  He appealed, arguing that the loss calculations were erroneous. Id. A three-judge panel held Depue waived his objections to the alleged Guideline errors. Id. at 1231-32. 

  The case went en banc.

Issue(s): “We are asked to explain when a defendant is entitled to plain error review of challenges to his sentence that he failed to raise in the district court. Our cases have consistently held that a defendant waives his rights and precludes plain error review only when there is evidence that he knew of his rights at the time and nonetheless relinquished them. Twenty-one years ago, we explained this point in an en banc opinion. United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc).” Id. at 1229.

Held: “We reaffirm today this distinction between waiver and forfeiture.” Id. 

  “Confining our en banc consideration to Depue’s challenge to the Guidelines calculations, we hold that Depue’s failure to object to the Guidelines calculations at sentencing constitutes forfeiture subject to plain error review, but that there was no plain error.” Id. at 1230 (emphasis added).

Of Note: The Ninth reviewed Depue’s claims for plain error. The threshold issue for Olano “error” is whether the claim was “intentionally relinquished or abandoned.” Id. at 1232. As Judge Berzon explains, “forfeited claims are reviewed for plain error, while waiver precludes appellate review altogether.” Id. (emphasis added).  

  What makes for a “waiver?” Evidence that the defendant knew what they were giving up – a mere failure to object isn’t enough. 

  Judge Berzon writes that “The relevant question is whether Depue knew the substantive legal rules underlying the particular challenges to the Guidelines calculation he raises on appeal, and knew that the district court’s calculation violated those rules.” Id. at 1233-34. The en banc court holds that Depue didn’t know what he was giving up, so he didn’t waive. This distinction “between waiver and forfeiture is particularly important in the sentencing context.” Id. at 1234. A critically important holding, particularly for the extraordinarily complex Guideline (and Taylor analysis) sentencing process – it gives us a shot at plain error review, and getting a botched sentence fixed, on direct appeal. 

  This is a thoughtful opinion, buttressed by policy considerations, and is just flat-out fair: no surprise that all eleven e.b. votes signed onto the outcome.

How to Use: The defense in Depue won an (important) battle, but Depue himself lost the war. The Ninth held that, if there were legal or factual errors in the guideline calcs, they didn’t rise to level of plain error. 

  The take-away? Forfeiture and plain error review is better than waiver and getting kicked out of the Ninth -- but a nice record heavily peppered with clear objections is better than both.

                                               

For Further Reading: The national defense community generally, and NorCal specifically, has suffered a tremendous loss with the untimely death of San Francisco Public Defender Jeff Adachi.

   The only elected public defender in California, Jeff was a tireless and fearless advocate for his own clients, for resources for his office and for indigent defense, and for reform of the criminal justice system.

  

Our deepest condolences to his family, and to our PD brothers and sisters: we’ve all lost a good friend and great leader. See SF Chronicle Article here.

Image of “Ralph Wiggum” waver from https://tenor.com/search/waving-gifs

Image of Jeff Adachi from https://abc7news.com/society/san-francisco-public-defender-jeff-adachi-dies-at-59/5152699/

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

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Case o' The Week: The Fourth in the Ninth Goes Back to the Future - Lamar Johnson and Search "Incident" to Arrest

A search “incident” to arrest can happen before an arrest, and need not be supported by probable cause for the actual arrest that followed the search that was “incident” to arrest.

(And you thought the space-time quirks of “Back to the Future” were confusing.)

  United States v. Lamar Johnson, 2019 WL 137929 (9th Cir. Jan. 9, 2019), decision available here.

Players: Decision by Judge Wallace, joined by Judge Rawlinson.

 Compelling concurrence by Judge Watford.

  Hard-fought appeal by Oakland AFPD Robin Packel, Northern District of California.  

Hon. Judge J. Clifford Wallace

Facts: Johnson was stopped while driving. Id. at *2. The cop claimed he then smelled marijuana. Id. The officer asked for registration and insurance: Johnson explained he was borrowing the car and rummaged through the glovebox. Id. The officer opined this rummaging was inconsistent with how someone would (sincerely?) dig through a glove box. Id. The officer learned Johnson had been arrested for parole violations. Id. He asked Johnson to step out of the car, searched him, discovered he was wearing a bulletproof vest, and arrested him for being a felon in possession of body armor. Id. A later car search revealed a gun, drugs, scales, and plastic bags. Id.

  The defense motion to suppress was denied.

  This was the Northern District of California, so there was no conditional plea -- the defense and the District Court were forced to go through the rigamarole of a stip facts bench trial to preserve an important Fourth Amendment issue for appeal. Id. at *3.

Issue(s): “Johnson argues that the warrantless search of his person, [and] the warrantless search of his car . . . violated the Fourth Amendment.” Id. at *3. “[A] search, incident to a lawful arrest, does not necessarily need to follow the arrest to comport with the Fourth Amendment.” Id. “[W]hen the officer’s known facts provide probable cause to arrest for an offense, the officer’s subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” Id. at *3 (internal quotations and citations omitted).

  “The question presented in this case is whether these two well-established principles may coincide without violating the Fourth Amendment. Johnson contends that to do so would create a ‘search incident to probable cause’ rule, allowing officers to search a person whenever probable cause to arrest exists. Johnson argues that the existence of such a rule will cause widespread fishing expeditions that are pre-textual and discriminatory.” Id. at *4.

Held: “[T]he precise crime for which an officer has probable cause is irrelevant. . . . So long as the search was incident to and preceding a lawful arrest—which is to say that probable cause to arrest existed and the search and arrest are roughly contemporaneous, . . . the arresting officer’s subjective crime of arrest need not have been the crime for which probable cause existed.” Id. at *4.

  “We . . . join our sister circuits in holding that Knowles does not prevent a search incident to a lawful arrest from occurring before the arrest itself, even if the crime of arrest is different from the crime for which probable cause existed.” Id. at *4 (emphases added).

Of Note: Under Lamar Johnson, an officer can now:

  1) search "incident" to arrest before an arrest, and

  2) that search can later be upheld, even if the probable cause wasn’t for the actual arrest that (followed) the search “incident” to arrest!

  Huh?

Hon. Judge Paul Watford

  In a well-reasoned concurrence, Judge Watford politely tears apart this troubling holding. Id. at *7 *(Watford, J., concurring). He explains that he is forced to concur because of the Ninth’s 2004 decision in Smith. Id. Judge Watford persuasively explains, however, that the Smith decision is “doctrinally unsound” and not “consistent” with Supreme Court precedents. Id. at *9.

  The concurrence ends with a trenchant understatement: “it is no secret that people of color are disproportionate victims of this type of scrutiny.” Id. at *10. Judge Watford correctly warns, “So long as Smith remains the law of our circuit, it will only exacerbate this problem.” Id.

  Judge Watford is right - Smith (and Johnson) should go en banc. This dangerous Fourth Amendment decision, and this line of Circuit authority that has strayed far afield from SCOTUS precedent, merits a close second look by the en banc court.

How to Use: Don’t concede a Fourth challenge because of Lamar Johnson: preserve. La Lucha continues.

                                               

For Further Reading: Whither the Judiciary (and FPD) as the shutdown staggers into uncharted territory? For an article that accurately describes the looming crisis, see a helpful NYT piece here. 

Image of Marty McFly of “Back to the Future” from https://memegenerator.net/instance/68739897/marty-mcfly-i-think-i-got-confused

Image of the Honorable J. Clifford Wallace from https://wallaceinnsd.org/our-founder/

Image of the Honorable Judge Paul Watford from https://livzey.com/corporate/portraiture/attachment/judgewatford_9960/

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

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