Case o' The Week: The Ninth Don't Feel Our Writ Appeal - Repp, the IADA, and Resolving Violations of Supervised Release

 Form 12 resolutions have a bad Rep[p] in the Ninth.

 United States v. Repp, 2021 WL 613385 (9th Cir. Feb. 17, 2021), decision available here.

Players: Decision by Judge Tallman, joined by Judge Callahan and visiting DJ Christensen.  

Facts: Repp was on supervised release out of the CD Cal. Id. He committed a new federal crime, and was incarcerated in Arizona. Id.

  After the district court in L.A. signed an arrest warrant for the “Form 12” (alleging a violation of supervised release), a detainer was slapped on Repp. Id.

  Repp moved the L.A. District Court judge for a writ of habeas corpus ad prosequendeum, to the Warden at FCI Phoenix, directing the warden to transport him to L.A. to resolve the Form 12. Id.

  That motion was denied by the CD Cal. District Judge. Id. Repp appealed the denial of the order.

Issue(s): “May an inmate currently serving time on one federal sentence expedite the resolution of a newly lodged detainer to answer for a supervised release violation in another federal district that was triggered by his commission of the crime for which he is currently incarcerated?” Id. at *1.

Held: “Because the denial of Repp's motion is not a final or appealable collateral order, we lack jurisdiction over this appeal and must dismiss it.” Id.

Of Note: A motion for a “writ of habeas ad prosequendum” seems a laborious path to get a Form 12 in another district resolved. Why didn’t Repp just file an Interstate Agreement on Detainers Act (“IADA”) demand? See 18 USC App. 2 § 2. 

Because, to our great frustration, the IADA does not apply to detainers tied to violations of supervised release. See Repp, 2021 WL 613385, at *1 (quoting United States v. Bottoms, 755 F.2d 1349, 1350 (9th Cir. 1985)). While Bottoms interpreted the language of the IAD, it also strongly hinted that Congress should clean up the wording of this statute. See Bottoms, 755 F.2d at 1349.

The Ninth in Bottoms was right about the language of the IADA – it makes no sense that a serial bank robber can make an IADA claim to resolve all charged robbery cases in multiple jurisdictions, but an inmate with a hanging Form 12 cannot use the IADA to do the same thing. Note, however, that Repp only holds that the Ninth has no jurisdiction to consider Repp’s appeal – it does not appear to prohibit Repp’s “writ ad prosequendum” gambit. This creative writ approach appears to have survived, for us to try again with a more sympathetic district court.  

How to Use: Form 12 detainers have a real, negative impact on the access to programing in BOP custody, and on early release to half houses – exactly the opposite of what Probation should be encouraging. Until the IADA is fixed, this unfair discrepancy in lack of access to this mechanism (between “new” cases and Form 12 allegations) is an interesting theory for reduced custodial terms in Form 12 hearings (along the lines of the good ole’ Sanchez-Rodriguez “lost opportunity to serve a concurrent sentence” theory). See United States v. Sanchez-Rodriguez, 161 F.3d 556 (9th Cir. 1998) (en banc). Notably, in Repp Judge Tallman expressly flags this “procedural delay” argument as a pitch that Repp can make when he finally gets back to Los Angeles to be sentenced on his supervised release violation. See Repp, 2021 WL 613385, at *2.

For Further Reading: In 2013, history was made here in San Francisco when Attorney General Eric Holder announced the new “Smart on Crime” initiative. See Smart on Crime overview here. 

That brave reform effort worked -- and its principles were then adopted across the political divides. See article here. 

Judge Garland (finally) has a confirmation hearing scheduled for his new A.G. gig. See NPR article here. 

Our first question for His Honor? How quickly will DOJ revive A.G. Holder’s Smart on Crime principles?

 

 

Image of “Repp” from https://www.besttechtips.org/how-to-remove-repp-ransomware-and-decrypt-repp-files/ .

 

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

 

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Case o' The Week: Not Charged, But Still You Pay - Donald Johnson and MVRA restitution

 Uncharged crimes, federal dimes.

United States v. Donald "Ski" Johnson, 2017 WL 1416490 (9th Cir. April 21, 2017), opinion available here.

Players: Decision by Judge Callahan, joined by Judge Paez and D.J. England. Hard-fought appeal by Michael Donahoe, Sr. Litigator, Federal Defenders of Montana.

Facts: Johnson used an alias to promote a (fraudulent) black-tie charity event in Seattle. Id. at *1. He pocketed about $9,300. Id.

  Using a different alias, Johnson pulled off another charity-fraud scheme in Florida. Id.

  Then, using the Florida alias, he tried again in Montana and was caught. Id. Johnson was indicted in Montana with one count of § 1343 – wire fraud. Id.

  Although the indictment alleged the scheme occurred in Montana “and elsewhere,” it referenced only a single wire, associated with the Montana attempt. Id. at *2. Johnson successfully moved in limine to limit the government’s proof to only the Montana event. Id. (Note - based on later Ninth Circuit law, the court probably improperly excluded this as prohibited 404(b)(2) evidence. Id. at 2 & fn. 2).

  Thought Johnson was only convicted of the Montana wire, the government sought restitution for the Seattle and Washington fraud events. Id. The district court declined, and only imposed restitution for the Montana fraud. Id.

  The government appealed.

Issue(s): “[T]he government argues that the district court erred by considering only Johnson’s fraudulent conduct that occurred in Montana (the count of conviction) when determining restitution, and thus misinterpreted the Mandatory Victim Restitution Act (‘MVRA’). See 18 U.S.C. § 3663A.” Id. at *1.

Held: “Under 18 U.S.C. § 3663A and Ninth Circuit precedent, the district court could properly order restitution for all victims harmed by Johnson’s scheme, including those harmed by conduct beyond the count of conviction. Accordingly, we vacate the district court's restitution order and remand for the court to make factual findings to determine whether Johnson’s activities beyond the [Montana] event are sufficiently related to be included for restitution purposes in Johnson’s overall scheme to defraud.” Id. at *3.

Of Note: The district court agreed with the defense and kept this fraud trial a Montana case, tried to a Montana jury: Seattle and Florida events were excluded. The AUSA could have appealed -- unlike the defense, the government can bring an interlocutory appeal of evidentiary rulings. Id. at *2 (citing United States v. Loftis, 843 F.3d 1173, 1175-76 (9th Cir. 2016)).

  But the government didn’t.

  Having waived that interlocutory appeal, could the government later argue these “outside the conviction” frauds when seeking restitution? Yep.

  Judge Callahan rejects the defense pitch that the government’s failure to bring an interlocutory appeal limited the government’s post-conviction, restitution appeal. Id. at *2. The government’s failure to raise an interlocutory appeal does not bar raising the decided issue after entry of a final judgment. In Johnson, that was the case even though the restitution order “flows from the same issue as the district court’s evidentiary hearing.” Id.

  There are rational reasons for these double-standards around interlocutory appeals (double-jeopardy being foremost) . . . but this line of law is nonetheless perpetually galling.

How to Use: Thought the AUSA failed to argue it, the law at the time of this restitution hearing was clear that fraud conduct beyond the count of conviction can be used for MVRA restitution. Id. at 3 & n.4. 

  It isn’t new law, but the rule is worth adding to the research file: “restitution may be ordered for all persons directly harmed by the entire scheme and is thus not confined to harm caused by the particular offenses for which the defendant was convicted.” Id. at *3 (quotations and citation omitted).

                                               

For Further Reading: Will NorCal be flooded with § 1326 cases? Well, it got a little harder for ICE to trigger the tsunami last week, when the Hon. William H. Orrick issued a preliminary injunction against Executive Order 13768.

  While many have applauded WHO for his decision, fewer have actually read the (admirable) order. Interestingly, it is quite restrained – as Judge Orrick explains, “The Counties’ motions for preliminary injunction against Section 9(a) of the Executive Order are GRANTED as further described below. That said, this injunction does nothing more than implement the effect of the Government’s flawed interpretation of the Order.”

  The opinion that has made the Northern District (or rather, “the Ninth Circuit”) the latest Tweet-target can be found here.

“Gavel and cash” image from https://forbiddenmusic.org/2015/02/05/music-restitution/

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

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Case o' The Week: High times - McIntosh & enjoining the federal prosecution of medical marijuana cases

   The Honorable Judge Diarmuid F. O’Scannlain, hero of the West’s medical marijuana community.

   Justice Scalia would be proud.

United States v. McIntosh, 2016 WL 4363168 (9th Cir. Aug. 16, 2016), decision available here.

Players:  Decision by Judge O’Scannlain, joined by Judges Silverman and Bea. Big win argued by ND Cal CJA stalwart Marc. Zilversmit, Fed. Defenders of E. Wa & Id. AFPD Robert Fischer, and ED Cal AFPD Andras Farkas.

Facts: A slew of defendants in three districts were indicted for marijuana crimes under the Controlled Substance Act. Id. at *1. They (unsuccessfully) moved to dismiss their indictments, or enjoin their prosecutions on the grounds that a rider on an appropriations bill prohibited the use of federal funds by DOJ to prosecute offenses involving medical marijuana. Id. at *2. 

  The defendants filed interlocutory appeals, and sought writs of mandamus. Id. at *3. 

  (No defendant has yet been convicted or sentenced. Id. at *3).

Issue(s): “We are asked to decide whether criminal defendants may avoid prosecution for various federal marijuana offenses on the basis of a congressional appropriations rider that prohibits the United States Department of Justice from spending funds to prevent states’ implementation of their own medical marijuana laws.” Id. at *1.

Held: “In sum, § 542 prohibits DOJ from spending money on actions that prevent the Medical Marijuana States’ giving practical effect to their state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Id. at *8. 

  “We . . . conclude that, at a minimum, § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.” Id. at *9. “

  [W]e conclude that § 542 prohibits the federal government only from preventing the implementation of those specific rules of state law that authorize the use, distribution, possession, or cultivation of medical marijuana. DOJ does not prevent the implementation of rules authorizing conduct when it prosecutes individuals who engage in conduct unauthorized under state medical marijuana laws. Individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and prosecuting such individuals does not violate § 542.” Id. at *10.  

  “When Congress has enacted a legislative restriction like § 542 that expressly prohibits DOJ from spending funds on certain actions, federal criminal defendants may seek to enjoin the expenditure of those funds, and we may exercise jurisdiction over a district court's direct denial of a request for such injunctive relief.” Id. at *5.

Of Note: With no convictions, what’s the Ninth’s jurisdictional hook for this big defense win? Judge O’Scannlain turns to 28 USC § 1292(a)(1), and concludes that the Ninth has jurisdiction to consider the interlocutory appeals from the direct denials of the requests for injunctions. Id. at *5. 

  The take-away? The starting point for this litigation in the district courts is a motion for injunctive relief.

How to Use: “The Feds can’t touch pot cases,” our clients will earnestly insist. The reality is a bit more -- nuanced. Most importantly, the Court emphasizes that this funding bar only works if the defendant was in compliance with state law. Id. at *10. In McIntosh, that threshold question was bounced backed for evidentiary hearings. Id. at *11.  

  McIntosh doesn’t mean 4/20 always beats § 841, but it does make one wonder. With no federal funds appropriated for the work, who exactly is authorized to prosecute Form 12s for dirty pot tests, or Form 8s for marijuana pretrial violations, or a host of other interesting pot pickles that seem to bedevil our clients?

                                               

For Further Reading: For an interesting, albeit sobering, article about what McIntosh does and doesn’t mean, see John Hudak, McIntosh decision limits DOJ powers, but medical marijuana advocates should worry, available here. 

Image of the Hon. Judge Diarmuid O’Scannlain from https://images.c-span.org/Files/d3c/20131024044917002_hd.jpg/Thumbs/height.630.no_border.width.1200.jpg

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

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