Case o' The Week: Short rifles, short decision, and shorted on mens rea - Woodberry and Mens Rea for Section 924(c) offenses

Prepare to pucker, on a sour Woodberry. 

United States v. Woodberry, 2021 WL 506091 (9th Cir. Feb. 11, 2021), decision available here.

Players: Decision by Judge Gould, joined by Judge Friedland and WD MO DJ Bough.  

Facts: Woodberry and Johnson, who were armed, robbed a marijuana dispensary. Id. at *1. Police later recovered a short-barreled rifle. Id. at *2.

  The men were charged with, among other things, a Section 924(c)(1) (B)(i) count for using a short-barreled rifle during a crime of violence. Id. (This Section 924(c) count triggered a ten-year mand-mind. Id. at *4).

  Over defense objection, the jury was instructed that it could convict if the gun’s length was under 16 inches (with no requirement that the defendants knew the rifle was short. Id.

  The men were convicted, and appealed.

Issue(s): “Defendants . . . challenge the district court's jury instruction regarding the short-barreled rifle provision in § 924(c)(1) (B)(i). They argue that because the short-barreled rifle provision contains a mens rea requirement, the district court should have instructed the jury to convict only if Defendants knew that the rifle barrel was less than sixteen inches long.” Id. at *4 (footnote omitted) (emphasis in original).

Held: Holding One: “Applying . . . Alleyne, we hold that the short-barrel provision in § 924(c)(1)(B)(i) is an essential element that must be proven to a jury beyond a reasonable doubt.” Id. (footnote omitted) (emphasis added).

Holding Two: “We see no reason to apply the mens rea presumption here, in part because the statute in question does not penalize ‘entirely innocent’ conduct.” Id. at *6 (citation omitted). “At its core, this case calls for no more than a straightforward application of Dean. We hold that § 924(c)(1) (B)(i) requires no showing of mens rea as to the rifle barrel’s length to sustain a conviction.” Id. at *7.

Of Note: Woodberry crams a number of disappointing holdings into a short opinion. The decision’s lead issue is whether robbing a marijuana dispensary is, effectively, a per se impact on interstate commerce that triggers commerce clause jurisdiction for Hobbes Act cases. See id. at *3. 

Extending the Supreme Court’s 2016 Taylor decision, the Ninth holds “(1) that the market for marijuana, including its intrastate aspects, is commerce over which the United States has jurisdiction, and (2) that the commerce element of a Hobbs Act robbery could be established if the robbery could affect commerce over which the United States has jurisdiction.” Id. at *4 (quotations and citations omitted).

A frustrating decision to mull when defending Hobbes Act cases.

How to Use: In this appeal the government kept referring to the short-barreled provision in Section 924(c) as a “sentencing ‘enhancement,’” rather than an element. Id. at *4.

The government was wrong.

Judge Gould takes this opportunity to clarify that, after Alleyne, this factual requirement is an essential element that must be proved to a jury beyond a reasonable doubt. See id.

Sadly, after Woodberry this is an element stripped of any meaningful mens rea requirement. Nonetheless, for future Section 924(c) cases, these are now clearly facts that must be alleged in the indictment, and that the jury must decide beyond a reasonable doubt.                                                   

For Further Reading: President Biden campaigned on criminal justice reform. In a compelling new OpEd, two Federal Defenders describe the many unilateral measures that the Administration should immediately take to deliver on these campaign promises. See Lisa Freeland and David Patton¸ The Biden Administration Can Act on Criminal Justice Act Reform Now, available here.

  Here in NorCal, U.S. Attorney David Anderson (appointed by President Trump), has announced that he will step down by the end of the month. See article here. 

  As main Justice aggressively unwinds Trump policies (and implements the new Biden / Harris priorities), it will be interesting to see how quickly these big changes are felt here in NorCal and the Ninth.  

 

 

 

Image of “Woodberry” from https://uksignshop.co.uk/woodberry

 

 

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

 

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Case o' The Week: No Date, No Time, No Place, No Problem - Bastide-Hernandez and Notices to Appear after Karingithi and Fermin

 “In my view, the majority opinion represents a clear rejection of our binding precedent.” 

The Hon. Judge Milan Smith

United States v. Bastide-Hernandez, 2021 WL 345581 (9th Cir. Feb. 2, 2021) (Smith, Milan, J., dissenting), decision available here.

 Players: Decision by visiting Sixth Circuit Judge Boggs, joined by Judge Bennett. 

Compelling dissent by Judge Milan Smith. 

Hard-fought appeal by AFPD Paul Shelton, Federal Defenders of Eastern Washington.  

 Facts: Bastide-Hernandez, a Mexican national, had “numerous” interactions with immigration. Id. at *1. ICE sent him notices to appear (NTA), but they did not include the date or time of the removal hearing. Id. at *1.

The immigration court then faxed a curative Notice of Hearing, but Bastide-Hernandez denied receiving it -- and the government failed to produce evidence that a custodial officer had transmitted it. Id.

There was a removal hearing – but the government failed to introduce a transcript. Id.

Bastide-Hernandez was later prosecuted for illegal re-entry, in violation of 8 USC § 1326, based on this removal. Id. The district court dismissed, holding that the defective notices deprived the immigration court of jurisdiction. Id. 

The government appealed.

 Issue(s): “Karingithi and Aguilar Fermin have created some confusion as to when jurisdiction actually vests, as neither squarely held that jurisdiction vests immediately upon the filing of an NTA, despite the language of the regulations.” Id. at *1.

 Held: “To clarify, we now hold that the regulation means what it says, and controls. The only logical way to interpret and apply Karingithi and Aguilar Fermin is that the jurisdiction of the immigration court vests upon the filing of an NTA, even one that does not at that time inform the alien of the time, date, and location of the hearing. If this were not the case, upon the filing of an NTA jurisdiction would vest, but then would unvest if the NTA lacked required time, date, and location information, only to once again revest if a subsequent curative NOH provided that missing information. Jurisdiction is not so malleable. Jurisdiction, for all its subtle complexities, is not ephemeral. It either exists or it does not. Under Karingithi and Aguilar Fermin, we now hold that when an NTA is filed, jurisdiction exists and vests with the immigration court.” Id.

Of Note: In a thoughtful dissent, Judge Milan Smith explains why the panel got it wrong. See id. at *4 (Smith, J. dissenting). 

Judge Smith (correctly) views Karingithi as controlling, and points out that in that case, the alien actually did later receive notice of the time, date and place of the hearing. Id. at *5. That is a big distinction from Bastide-Hernandez, where the Ninth somehow divines immigration court jurisdiction when deficient notices are all that are in the record. Id. at *2. 

Judge Smith’s dissent is spot on: this decision should go en banc.

 How to Use: Immigration gurus urge us to still bring Pereira challenges. As Judge Smith reports, there is now tension within the Ninth’s own Pereira authority, and e.b. or cert. action may be on the horizon. 

Also, it bears noting that Bastide-Hernandez’s own case was remanded by the panel to evaluate potential due process violations (although without a jurisdictional challenge to NTAs, § 1326(d) can be a bit of a sticky wicket.)  

For Further Reading: A central plank in President Biden’s campaign was criminal justice reform. See generally Biden web page here. 

An interesting new op-ed argues that this promised reform will be impossible until Judge Garland gets a hearing and is confirmed as A.G., and new U.S. Attorneys take over the local reins. See “Delays in Garland hearing, and in replacing U.S. attorneys, put justice reform in jeopardy,” available here. 

Here in NorCal, five contenders are running for the U.S. Attorney spot – presenting a real opportunity for the first Black U.S. Attorney in the district in roughly forty years. See “Who is in the Running for the San Francisco U.S. Attorney Spot, available here.  

 

 

Image of the Honorable Judge Milan Smith from https://www.latimes.com/california/story/2020-02-22/trump-conservative-judges-9th-circuit

 

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

 

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Case o' The Week: Death, Taxes, and CJA Contributions - Robertson and CJA Contributions After Death

Ab initio, but not finito.

United States v. Carri Robertson, 2020 WL 6604323 (9th Cir. Nov. 12, 2020), decision available here.

Players: Decision by DJ Stearns, joined by Judges Bybee and Collins.  

Facts: Joseph Robertson was appointed an AFPD after being indicted for environmental crimes. Id. at *1. His first trial resulted in a hung jury and mistrial. Id. Assets revealed in that trial prompted the court to order CJA contributions. Id. at *2.

  Robertson was convicted at his second trial, lost in the Ninth, and sought cert.

  Robertson died while his petition was pending, and SCOTUS GVR’ed the petition. Id. at *2.

  On remand, the Ninth granted the motion of Carri Robertson (Robertson’s widow) vacated Joseph Robertson’s conviction and sentence ab initio, and directed refund of the amounts he had paid towards special assessments and restitution. Id.

  On remand the district judge, however, held that the CJA contribution order was not abated. Id.

   Widow Carri Robertson appealed. Id.

 Issue(s): “We consider whether vacating the indictment against a criminal defendant ab initio following his death during the pendency of a certiorari petition to the Supreme Court requires vacation of an order issued under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A, to make payments to reimburse in part the costs of his defense.” Id. at *1.

  “Whether a CJA reimbursement order falls within the scope of the abatement of an indictment is a matter of first impression for this court.” Id. at *3.

Held: “Because a CJA reimbursement may be ordered in the absence of a conviction (after a mistrial, in this case) . . . it is not a part of the criminal proceeding that is extinguished by abatement ab initio. . . . . Id. at *4.

  “There is also heft to the argument that enforcing Robertson's CJA reimbursement order comports with the principle of finality. . . . [O]nly non-final matters . . . are abated because a defendant's death prevents the proceeding from reaching a conclusion. . . . Here, Robertson did not challenge this court's affirmance of the CJA reimbursement order when he sought certiorari . . . . Accordingly, the affirmed CJA reimbursement order is a final order not subject to abatement.” Id. at *5 (internal quotations and citations omitted).

 Of Note: The Ninth’s new rule is a bit of a head-scratcher. Whomever was entitled to restitution is out-of-luck when a defendant dies during a pending case, and the case is “extinguished by abatement ab initio.” But the debt for a CJA contribution survives? Visiting Mass. DJ Stearns announces this new Ninth Circuit rule, and tries to distinguish CJA contributions from restitution orders. See id. at *3.

One factor in this outcome appears to be that Robertson did not challenge the CJA contribution in his cert. petition. See id. at *5. Query whether there might be an exception to this new rule if the parties had kept the CJA contribution issue alive.

How to Use: To get to this new rule, the Ninth first rejected the widow’s challenge to the district court’s subject matter jurisdiction. Id. at *3. Along the way, it repeats some black letter law often helpful to the defense: “[I]t is familiar law that a federal court always has jurisdiction to determine its own jurisdiction.” United States v. Ruiz, 536 U.S. 622, 628 . . . (2002). Look to Robertson for a recent cite on the “j/x for its own j/x” proposition (particularly helpful when the Ninth is determining the legality of a sentence on appeal).

For Further Reading: Last week NorCal lost one of its legendary leaders: investigator Raymond McGrath. Raymond worked on the historic Irish extradition cases in the ‘80s, helping to defeat extradition orders and ultimately challenge the special terrorist courts of Northern Ireland. See article here; see also article here. 

Mr. Raymond McGrath

Raymond was inspired to professionalize investigations in human rights cases. He founded the Institute for International Criminal Investigations, which has trained over 200 people from 48 nationalities in the Hague. See article here. 

Raymond passed away after a brave, quarter-century battle with cancer. His courage and passion continues to inspire us all.  

  

Image of “ab initio” from https://datainnovationsummit.com/abinitio/

Image of Mr. Raymond McGrath from https://encore.org/purpose-prize/raymond-mcgrath/  

 

 

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

 

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Case o’ The Week: J/x Jinx - Luong and "interstate commerce" proof, Hobbs Act robberies

Ninth denies Perry Mason surprise.

 

 

United States v. Luong, 2020 WL 4033847 (9th Cir. July 17, 2020), decision available here.

 

Players: Decision by visiting District Judge Smith, joined by Judges Rawlinson and Bybee.

  Hard fought appeal by former ND Cal AFPD Ned Smock, and ND Cal AFPDs John Paul Reichmuth and Robin Packel.

 

Facts: It was effectively conceded at the Hobbs Act trial that Luong had robbed a man at gun point. Id. at *1. Luong, who lived in the Bay Area, had lured the Bay Area victim to a BART station through a car ad placed on a Bay Area Craigslist post. Id. Craigslist is a local internet service, although it does link to sales of similar items in adjacent states. Id. 

  The defense only contested the interstate commerce element at trial: the jury hung on the Hobbs Act and 924(c) counts. Id. Luong was convicted at retrial.

 

Issue(s): Was there sufficient evidence of interstate commerce to satisfy the Hobbs Act jurisdictional requirement?

 

Held: “Even if we view Craigslist as facilitating only local transactions, the interstate-commerce jurisdictional nexus is still met here. The Supreme Court’s opinion in Taylor v. United States, 136 S. Ct. 2074 (2016), guides our analysis. In Taylor, the Supreme Court concluded that, because Congress has the authority to regulate the national marijuana market, including the purely intrastate production, possession, and sale of marijuana, based on its aggregate effect on interstate commerce, so too may Congress regulate intrastate marijuana theft under the Hobbs Act. Id. at 2077. While the Court in Taylor limited its holding ‘to cases in which the defendant targets drug dealers for the purpose of stealing drugs or drug proceeds[,]’ and declined to ‘resolve what the Government must prove to establish Hobbs Act robbery where some other type of business or victim is targeted[,]’ id. at 2082, the logic employed in Taylor readily applies to the facts of this case. Therefore, the Hobbs Act’s interstate-commerce element is satisfied in cases like this one, where the government demonstrates that a person used a commercial website to advertise a commercial transaction in order to facilitate a robbery.” Id. at *5. 

 

Of Note: Luong only contested the jurisdictional element at trial, and objected to evidence related to that element. Id. at *13. The district court nonetheless denied acceptance of responsibility at sentencing! In a silver lining to this dark cloud of a case, the Ninth reverses and remands for a resentencing. Defense counsel, explains the Ninth, cannot be expected to sit on their hands and tolerate government surprise witnesses “a la Perry Mason.” Id. at *14. 

    Luong is the rare acknowledgement that “acceptance of responsibility” should not be used as a hammer to punish defendants for going to trial on jurisdictional elements: a welcome addition to the law on that guideline. 

 

How to Use: On appeal, Luong forcibly argued that the Hobbs Act statute has a different and more-demanding interstate commerce requirement than other criminal statutes, that are satisfied by mere “use” of interstate commerce. Id. at *6. 

  The Ninth dodges this issue, holding that Luong’s use of Craigslist was sufficient to satisfy the Hobbs Act requirement, even if it is more stringent. Id.  

  This section of the decision is worth a very close read for Hobbs Act cases: even visiting DJ Smith concedes in Luong that there are cases where a robber’s use of the internet would be so minimal as to fall short of the jurisdictional requirement.

                                               

For Further Reading: COVID-19 now rages through Santa Rita Jail. The huge facility houses almost all federal pretrial inmates in the Northern District of California. The jail now has over 100 inmates who have recently tested positive, and over 40 deputy sheriffs. See article here. At least forty of these COVID-positive inmates are feds: a disproportionately high figure, considering the relative population of federal inmates in the jail. 

  Although county inmate populations have been voluntarily reduced in the jail, the federal population has again risen to pre-pandemic high levels. 

  This new crisis cries out for the U.S. Attorney’s Office to reduce the numbers of federal inmates. Time for a NorCal Bail Summit.

 

 

Image of Perry Mason from https://www.townandcountrymag.com/leisure/arts-and-culture/a32947129/how-perry-mason-hbo-tv-different-from-original/

 

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

 

 

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Case o' The Week: Ninth Gives Two Bites at Appeal Notice - Shehadeh, Notices of Appeal, and Restitution Orders

  New Ninth jurist pens – "appealing" – decision.

The Hon. Judge Ryan Nelson

United States v. Shehadeh, 2020 WL 3278724 (9th Cir. June 18, 2020), decision available here.

Players: Decision by Judge R. Nelson, joined by visiting Judge Stiler and Judge Bybee.  

Facts: Shehadeh pleaded guilty to a thirty-year deal in an arson case. He moved for immediate sentencing without a PSR. Id. at *1.

  The district court obliged.

  Two months later, Shehadeh moved to withdraw his plea. Four months after that, the court held it lacked jurisdiction and denied the motion. Id. at *2.

   The court then entered an amended judgment with a restitution order. Id.

   Shehadeh appealed.

Issue(s): “’A defendant must file a notice of appeal within fourteen days of the entry of either the judgment or the order being appealed . . . Shehadeh contends his appeal was timely because he filed it within fourteen days of the district court’s entry of its amended judgment ordering restitution. The government argues Shehadeh’s appeal is untimely because he did not appeal within fourteen days of the district court’s entry of judgment announcing his custodial sentence.” Id. at *2.

   “The government argues that because deferred restitution cases involve two appealable judgments, not one, . . . Shehadeh was required to appeal within fourteen days of the district court’s entry of judgment on Shehadeh’s custodial sentence in February. Instead, Shehadeh waited to appeal until after the district court entered its amended judgment ordering restitution six months later.” Id. [The Supreme Court in Manrique v. United States, . . . 137 S. Ct. 1266 . . . (2017)] “only held that a notice of appeal filed after a sentence of imprisonment does not ‘spring forward’ to become effective to appeal an order of restitution entered later . . . The Court did not address the opposite issue presented here: is a defendant’s notice of appeal after an amended judgment ordering restitution timely to appeal the initial judgment of conviction and sentencing?” Id.

Held: “We hold that in these circumstances it is.” Id.

  “It is true that, after Manrique, Shehadeh could have filed an appeal within fourteen days after the initial judgment imposing his custodial sentence . . . But he was not required to do so. Our conclusion today is that, where a district court defers its restitution order, a defendant wishing to appeal his conviction and sentence of imprisonment may enter a notice of appeal either within fourteen days following the district court’s entry of the custodial sentence, or within fourteen days of the entry of the amended judgment, which includes the amount of restitution.” Id. at *2.

Of Note: Shehadeh waived the PSR in the district court, then complained there was no PSR on appeal. The Ninth shrugs and concludes PSRs are no longer required. “In light of the Supreme Court’s . . . holding in . . . Booker, . . . that the Sentencing Guidelines are advisory, Turner’s holding that a presentence report cannot be waived is no longer good law . . . Congress has not acted since Booker to prohibit waiver of a presentence report. We will not prohibit that waiver here, where the defendant knowingly waived his right to preparation of a presentence report and asked to proceed to sentencing as quickly as possible.” Id. at *5. Shehadeh deeming PSRs waivable is welcome news, as we’re forced to jam cases towards quick time-served sentencing (i.e., 98% of NorCal’s “Tenderloin” “$20 hand-to-hand” drug felonies that have plagued our federal courts).

How to Use: Shehadeh third holding is this: a district court does have jurisdiction to consider a motion to withdraw a plea of guilt, filed after the “primary” sentencing but before the (later) restitution order is imposed. Id. at *3.

  Mull this timing wrinkle: after Shehadeh, when there are many months between sentencing and the restitution order, there is much time for buyer’s remorse and a (perhaps imprudent) motion to withdraw . . .

                                               

For Further Reading: Last week S.F. D.A. Chesa Boudin announced that his office will not charge cases that rely on officers with serious prior misconduct. See S.F. D.A. policy here.

  Will the N.D. Cal U.S. Attorney’s office join in this admirable policy? Or will cross-designated federal officers just salvage cases with bad cops, that Boudin dumps from the Hall of Justice?

Image of the Honorable Judge Ryan Nelson from https://www.eastidahonews.com/2019/03/judge-ryan-nelson-honored-during-investiture-ceremony/

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

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Case o' The Week: "Demons Made Me Do It" - Read, Mentally-Ill Clients and Insanity Defenses

Still crazy, after all these years.

United States v. Read, 2019 U.S. App. LEXIS 7652 (9th Cir. Mar. 18, 2019), decision available here.

Players: Decision by Judge Hawkins, joined by Judges M. Smith and Hurwitz. Reversal for Mr. Read earned by former CD Cal AFPD, now CJA Attorney, Davina Chen.

Facts: While an inmate at FCI-Phoenix, Read stabbed his cellie thirteen times. Id. at *2. When later detained, Read said he had no memory of the attack. Id. at *3.

  He was charged with federal assault.

  A shrink diagnosed Read with schizophrenia and severe cannabis use disorder. Id. Read was found incompetent and sent to the BOP for restoration. Id.

  The BOP shrink noted that Read experienced the sensation of having his stomach cut out with a knife, by virtue of a voodoo doll being used against him. Id. at *4. The BOP doctor also confirmed the schizophrenia and cannabis-use diagnoses. Id. Nonetheless, the BOP psychologist found Read competent to stand trial. Id.

  Defense counsel then hired a neuropsych, who opined that Read was unable to form the criminal intent for the assault. Id. Defense counsel noticed an insanity defense, prompting another gov’t psych eval. Id.

  Read returned from a remote evaluation. After a Faretta hearing he successfully moved to proceed pro se (with the defense attorney as standby counsel). Id. Read flatly rejected an insanity defense, and insisted instead with going forward with a defense theory of “demonic possession.” Id. at *6-*7.

  The court then reappointed standby counsel as Read’s counsel, who “ably, but unsuccessfully, . . . present[ed] an insanity defense at trial.” Id. at *8.

Issue(s): “We address a question of first impression: whether a criminal defendant has the Sixth Amendment right to demand that counsel not present an insanity defense.” Id. at *1.

   “Read claims the district court violated his Sixth Amendment right to present a defense of his own choosing by terminating self-representation and permitting counsel to make an insanity defense.” Id. at *12. 

  “[W]e today face a question of first impression in this circuit.” Id. at *13.

Held: “We hold that McCoy v. Louisiana, 138 S. Ct. 1500 (2018), requires under the facts of this case that the demand be honored. We . . . reverse and remand for a new trial.” Id. at *1.

  “[A] district court commits reversible error by permitting defense counsel to present a defense of insanity over a competent defendant's clear rejection of that defense.” Id. at *12.

Of Note: Read is peppered with the “bizarre.” The D.J. characterized Read’s “demonic possession” defense as “bizarre.” Id. at *8. Judge Hawkins characterizes McCoy’s defense theory in the controlling SCOTUS McCoy case as “every bit as bizarre as Read’s.” Id. at *14. The Supreme Court in McCoy, followed by the Ninth Circuit in Read, place the highest value on the “autonomy” rights of (patently mentally-ill) defendants who want to pursue these “bizarre” defenses and reject insanity defenses over the advice of counsel.

  A decade ago, Judge Reinhardt predicted precisely the – well, bizarre – real world outcomes created by this focus on the "autonomy" of mentally ill defendants in his compelling Farhad concurrence. See 190 F.3d 1097, 1107 (9th Cir. 1999) (Reinhard, J. concurring)  ("The right to self representation must be balanced, like the right to waive conflict free counsel in Wheat, or the right to a public trial in Estes, against the Due Process Clause's fundamental, guarantee that trials will be reliable, just, and fair. Surely if the right to a fair trial is compelling enough to justify the Court's previous limitations on Sixth Amendment rights, it is compelling enough to limit, in appropriate cases, the Sixth Amendment right at issue here. As with most other individual rights, there are competing and countervailing interests, both personal and social. Nothing inherent in the implied right of self representation justifies exalting that right over all others in the constitutional constellation, or requires the courts to permit Farhad and others with similar limitations or incapacities to turn criminal trials into travesties. Rather, courts can develop rules for determining when the exercise of the right to self representation would be consistent with the mandate of the Fifth Amendment, and when it would not. In the latter case, the right to self-representation would give way."); See generally blog entry here.

   However, while wrestling with Read down in the district court trenches, note an interesting hint from the Ninth. Judge Hawkins explains that, at this time, the Ninth refuses to limit the right to refuse an insanity defense in cases where the defendant is actually mentally ill. Id. at *20 & n.5. Judge Hawkins throws in an intriguing “but see” to a case imposing that limit – maybe an invitation for a future argument?   

How to Use: Can our truly nutty clients go pro se?

  Probably not.

  In a very helpful holding, Judge Hawkins gives much guidance on what a D.J. should consider when making this tough call. Id. at *17-*18.

  Read Read for a valuable discussion on Faretta / Edwards / Ferguson pro se issues – Read is a now lead pro se case.   

                                               

For Further Reading: In 1998, Theodore “the Unabomer” Kaczynski pleaded guilty and avoided the death penalty. See NYT article here. 

  In a later dissent from the denial of a habeas petition, Judge Reinhardt described the tensions between the mentally-ill Kaczynski and his very able defense counsel over the question of an insanity defense at trial. United States v. Kaczynski, 239 F.3d 1108, 1119 (9th Cir. 2001) (Reinhardt, J., dissenting).

  Looking back at Kaczynski through the prisms of McCoy and Read, would the Unabomber have gone to trial without an insanity defense (and thus been awaiting execution) today?

Image of voodoo doll from https://pokerground.com/en/do-you-believe-in-poker-superstitions/

Image of Ted Kaczynski from https://news.yahoo.com/letters-from-a-serial-killer--inside-the-unabomber-archive-234543736.html

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

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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

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