Case o' The Week: Sausage Carver, Mem Dispos and "final" Decisions

"To retain respect for sausages and laws, one must not watch them in the making." Otto von Bismark. Judge Stephen Reinhardt (left) takes us deep into to the sausage factory in a fascinating decision that illustrates just how much difference one judge can make . . . . Carver v. Lehman, No. 06-35176, __ F.3d __, 2008 WL (9th Cir. Dec. 22, 2008), decision available here.

Players: Decision by Judge M. Smith (upper right) joined by Judge Tallman; vigorous “concurrence in judgement” by Judge Reinhardt.

Facts: Carver, a convicted sex-offender, filed a § 1983 suit against the Washington Department of Corrections (“DOC”). Id. at *1. He alleged that DOC’s categorical rule for sex offenders (prohibiting early release to community corrections at the end of a sentence) violated his Fourteenth Amendment due process rights. Id.

Issue(s): “Carter argues that [Washington’s statutory release scheme] creates a protected liberty interest because it requires DOC to transfer an inmate to community custody in lieu of earned release ‘unless any one of the specifically designated reasons are found . . . .’” Id. at *3.

Held: “We disagree.” Id. at *4.

Of Note: The interesting bit of Carver is the sniping between Judges M. Smith and Reinhardt. Id. at *6. Turns out that the original panel on this case included Judge Ferguson (left, rest in peace), who was replaced by Judge Tallman upon his death. Id. at *9 (Reinhardt, J., concurring in judgement only). Six months before this revised Carver decision, the original panel filed a majority opinion holding that Carver had a liberty interest – with Judge Smith writing separately, disputing that holding. Id.; see Carter v. Lehman, 528 F.3d 659 (9th Cir. 2008), withdrawn by 540 F.3d 1011.

What changed in six months? Some new constitutional decision? An intervening Supreme Court opinion? Nope: Ferguson passed away, was replaced by Tallman (right), the filed decision was yanked, and Smith and Tallman reversed the original outcome.

As Judge Reinhardt observes, “To those who question whether the results in constitutional and other cases depend on the membership of the panel, or whether the replacement of even a single Supreme Court justice can change the fundamental nature of the rights of all Americans with respect to matters as basic as affirmative action, a woman’s right of choice, and the nature of religious liberty, the result in the case currently before our panel is merely a minor illustration of how the judicial system currently operates.” Id. at *9.

Judge Reinhardt notes that there’s a mechanism for reversing a panel’s decision: en banc consideration. Id. at *11. This wasn’t that. This was a (new) conservative panel yanking an (old) liberal majority decision after it was published, but before it was “final.” Technically permissible, Reinhardt concedes, but bad form.

How to Use: In 2007, the grizzled vets on the Ninth warned us that the Supreme’s new rule allowing citation of memoranda dispositions was ill-advised. See article here, quoting Chief Judge Kozinski. They were right. In Carver, Judge Smith traces a number of unpublished memoranda dispositions in support of the reversed outcome, and claims the new Carver opinion tracks the state of the law (as stated in mem dispos). Id. at *7-*8. “[N]othing in our rules,” states Smith, “prohibits our own judges from considering or referring to unpublished dispositions issued at any point in time, and even relying on them so long as they do not conflict with binding precedential decisions.” Id. at *7 (emphasis added).

Judge Reinhardt describes this approach as “more than mindboggling.” Id. at *11. “If we were to accept this view, the law in this circuit would no longer be declared in opinions; ‘existing’ circuit law could be found in whatever sources suited anyone’s whim or fancy, including the Sewanee Law Review.” Id. at *11.

Citation of unpublished decisions is a flat-out bad idea that generally hurts the defense bar (how many of those sloppy mem dispos grant defense relief?) but if you’re going to do it, Carver does more to bolster mem dispos than any other case.

For Further Reading: Three weeks with no published Ninth Circuit criminal decision. What gives? Maybe the traditional holiday slowdown. Or maybe that insidious third “acceptance” offense level is finally having the chilling affect on criminal appeals that we’ve long predicted. See blogs here, here, here, here, and here.



Image of Hon. Milan Smith from http://blog.oregonlive.com/mapesonpolitics/2008/07/this_smith_brother_made_the_di.html . Image of Hon. Richard Tallman from http://www.uscourts.gov/ttb/2007-09/newLeadership/index.html Image of Hon. Stephen Reinhardt from http://www.jkevinmorton.com/appellate_advocacy/index.html Image of Hon. Warren Ferguson from http://www.lifeinlegacy.com/display.php?weekof=2008-06-28



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



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Case o' The Week: Ask, "W.W.W.D?" (What Would Warren Do?) -- Chapman and Section 111 Offenses

As we mourn the passing of Ninth Circuit Judge Warren Ferguson (left), one of his younger colleagues (Judge Kim Wardlaw, right) continues his admirable legacy by holding the government to the full proof requirements of Section 111. See United States v. Chapman, __ F.3d __, 2008 WL 2485566 (9th Cir. June 23, 2008), decision available here.


Players: Great win by San Diego Assistant Federal Defender Steven Barth.

Facts: Chapman allegedly “cut in line” at a border checkpoint. Id. at *1. Border agents stopped him, told him to move out of line, and when he refused, tried to physically “escort” him out of line. Id. Chapman “tensed up,” and “took a rigid stance” when the agents tried to cuff him. Id. An agent struck him in the thigh with a baton. Chapman told the agent, “hit me again,” the agent did so “to no effect” – so the agent pepper sprayed him and cuffed him. Id. (Ed. note: All this for (allegedly) cutting in line?)

Chapman didn’t attempt to strike the agent or use profanity. Id. Chapman was charged with 18 USC § 111(a), “resisting and impeding” a federal officer. Id. He was convicted at a bench trial of a misdemeanor; the court denied the motion for acquittal. Id. at *2.

Issue(s): Is an “assault” “required for a § 111 conviction?” Id. at *5.

Held: “[W]e . . . hold, as suggested by the majority of our sister circuits, that convictions under this statute require at least some form of assault. Section 111(a) creates two distinct offenses, a misdemeanor and a felony, and Congress has distinguished between these two offenses using language that is only meaningful when describing assaults.” Id. at *5. “Because § 111(a) allows misdemeanor convictions only where the acts constitute simple assault, and because Chapman’s nonviolent civil disobedience did not constitute a simple assault, we reverse and vacate the judgment of conviction.” Id. at *1.

Of Note: Districts with federal parks, recreation areas, military bases and reservations see a fair share of Section 111 prosecutions. Like Section 1326 cases, this opinion illustrates that a simple crime – a Section 111 offense – can raise extraordinarily complicated legal issues.

Judge Wardlaw’s analysis wasn’t made any easier by the Section 111 statute itself, which was “inartfully drafted,” id. at *3, or authority from other circuits that was “hardly a model of clarity,” id. at *5. In a thoughtful opinion Judge Wardlaw cuts through this confusion and creates a simple rule: a misdemeanor Section111 conviction requires a simple assault – not merely resisting arrest, and not merely disobeying orders. (An assault is “either a willful attempt to inflict injury upon the person of another, or . . . a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Id. at *4.)

How to Use: The good news is, we’ve been arguing Wardlaw’s new rule for years in § 111 cases. The bad news is, Chapman deals with an old version of the statute. A new, amended version became effective January 7, 2008. See id. at *1 & n.2.

The amendment changes the penalty subsection of § 111(a), which defines what constitutes a felony offense under the statute. See “Court Security Improvement Act of 2007,” PL 110-177, 2008 HR 660 (2007). While Chapman analyzed the old statute, nothing in the amended ‘08 version seems to affect the decision’s holding that a misdemeanor § 111 offense requires simple assault.

For Further Reading: As noted above, Judge Warren Ferguson died last week, at the age of 87. He was elevated from the C.D. Cal. bench by Carter in ‘79, and took senior status in ‘86. He served in the Army, in North Africa and Italy in WWII. He lost his son, Jack, during Vietnam.

Judge Ferguson actively sought clerks who were committed to “social justice.” His opinions reflected his passion for justice: in Chase, he strongly championed the right of an indigent defendant to retain an expert. In Luong, he rejected the government’s attempt to hide behind the good faith exception to salvage a warrant lacking in probable cause. In Snellenberger, he refused to allow criminal minutes and abstracts of judgment as fodder for the “modified categorical” sentencing analysis. In his compelling Clark dissent he warned,

The Constitution cannot be interpreted according to the principle that the end justifies the means. The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Constitution to address it.

Ferguson was a great judge and a great champion for the poor, for minorities, and for the oppressed. He will be sorely missed.

Above image of Judge Warren Ferguson from Cal Law, here.

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



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Case o' The Week: Ninth Rewards Defense Expert Chase, United States v. Chase

Yet another great Ninth Circuit decision arises out of the Fertile Crescent for criminal appeals: the District of Montana. United States v. Chase, __ F.3d. __, 2007 WL 2410177 (9th Cir. Aug. 27, 2007), decision available here. In Chase, Judge Ferguson emphasizes the right of an indigent defendant to a defense expert, and adds some teeth to the process by which meth quantities are estimated.

Players: Notable win by Montana AFPD John Rhodes, decision by Judge Ferguson joined by Judges Pregerson and Ikuta.

Facts: Chase pleaded guilty to meth crimes. 2007 WL 2410177 ,*1. At sentencing, he fought the government’s theory of the quantity of meth produced. Id. The government’s estimate was based on a letter by an expert, who had in turn relied on state reports about the lab’s contents. Id. The expert’s estimate was five times higher than what Chase admitted he produced. Id. Chase’s requested his own forensic expert; that was denied by the district judge. Id.

At an evidentiary hearing, the government expert conceded that he didn’t know the amount of precursors, and that he based his estimate on the size of a big flask (although there was no evidence that this particular flask had been used). Id. Chase testified and denied cooking that much meth. The district court sided with the government, and sentenced based on at least double what Chase admitted to having cooking. Id. at *2.

Issue(s): “Chase contends that . . . the district court erred in denying his request for an expert; . . .[and] the court based its determination of drug quantity on unreliable evidence.” Id. at *1.

Held: “We hold that the district court abused its discretion in denying Chase's request for a forensic expert and relied on evidence lacking sufficient indicia of reliability.” Id. “The Supreme Court has long recognized ... that ... justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake. . . . In this case, Chase had a right to hire an expert who could have produced his or her own investigation, interpretation, and testimony.” Id. at *3 (internal quotations and citation omitted).

Of Note: Chase will be remembered for its strong endorsement of the right of indigent defendants to experts. The case is also important, however, for meth lab cases because the Court establishes several important rules for yield calculations.

First, Judge Ferguson explained that the district court’s calculated production “lacked sufficient indicia of reliability.” Id. at *6. He then clarifies that glassware alone is an insufficient base to calculate production – previous cases involving glassware included precursor amounts and estimates arising from those chemicals. Id. Moreover, Ferguson limits the “multiplier” method of estimating production over several cooks. Id. at *7.

How to Use: Judge Ferguson’s rejection of the government’s arguments about defense experts provides ammo to the defense when seeking experts in other contexts. The Court rejects the government’s whine that the defense had a chance to cross the government expert, and that was enough. As Ferguson observes, “This argument misses the point.” Id. at *3. A defense expert is critical for two separate and independent reasons. First, a defense expert could have presented an alternative theory of calculating meth production – in other words, the expert could have affirmatively advanced the defense case. Id. Secondly (and separately) a defense expert could have sharpened the cross of the government expert, by honing attacks on the expert’s methodology. Id. at *4. Plug both of these rationales into CJA requests for defense experts (and note the reversal in Chase just to drive the point home).

For Further Reading: Rely on a good Ninth Circuit decision in the last couple of years, and you probably have the District of Montana to thank. That district had just 417 defendants commencing federal criminal cases in the year before June of ‘06. See US Courts statistical report here. The D Az, by contrast, had over 4,000. Id. Yet the Big Sky district has had a hugely disproportionate number of criminal appeals (and reversals) in the Ninth: Chase, Garcia, Larson, Jimison, and Juvenile Male in the last year alone. What’s gives?

The aggressive appellate chops of Tony Gallagher’s Defender office is one explanation – though US Attorney Mercer and the Montana district court bench may deserve some of our thanks, as well. Has no one heard of buying appellate waivers with a reasonable deal?

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

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