Case o' The Week: 1 (Jury Note) + 0 (Defense counsel) = 1 (Remand): Bladimir Martinez, Jury Notes, and Structural Error

The Honorable Judge Kim Wardlaw

"You have a problem with that?"

(Because, it turns out, the Ninth does as well). 

 United States v. Bladimir Martinez, 2017 U.S. App. LEXIS 4270 (9th Cir. Mar. 10, 2017), decision available here.

Players: Decision by Judge Wardlaw, joined by Judges Reinhardt and ND Cal District Judge Ronald Whyte. 

 Big win for AFD Doug Keller, Federal Defenders of San Diego, Inc.

Facts: Martinez was found just north of the border. Id. at *3-4. He was charged with 8 USC § 1326. Id. at *3. Specifically, he was charged with having been removed “subsequent to December 3, 2010,” the date of an agg felony conviction. Id.

  The jury was not instructed that it had to make a finding about the removal date, or that this removal date had to be proved beyond a reasonable doubt. Id. at *5.

  The jury wrote a note, asking about a portion on the verdict form that listed the December date. Id. at *5-*6. Without telling counsel, the judge wrote back, “It is a matter for the court to consider, not the jury. The jury has to consider whether the defendant was deported or removed after that date.” Id. at *6.

  Eight minutes later the jury reported it had reached a (guilty) verdict. Id.

  When counsel returned, the court revealed the earlier question and explained, “I didn’t think it was important to bring [counsel] back in to answer this question, so I answered it myself . . . . So you know, if you have a problem with that, I guess you’ll take it up with the Court of Appeals.” Id. at *6.

  “Defense counsel apparently had a problem with the court’s decision not to consult with counsel before answering the jury’s question, and this is the resulting appeal.” Id.

Issue(s): “[W]hether the judge's ex parte response to a mid-deliberations jury note about the significance of an Apprendi sentencing factor was structural in nature[?]” Id. at *17-*18.

Held: “We need not decide in this case . . . because we find that the constitutional error was not harmless beyond a reasonable doubt . . . .” Id.

   “The court’s failure to consult Martinez’s counsel before responding to the jury note violated [Fed. R. Crim. Proc. Rule 43]. . . and the Sixth Amendment. Because much of the government’s documentary evidence concerning Martinez’s prior removal contained demonstrable errors, and because defense counsel, had she been consulted, would have specifically requested that the trial court instruct the jury that the government was required to prove the removal date beyond a reasonable doubt, the district judge’s error was constitutionally harmful. We therefore vacate Martinez’s sentence and strike the special finding. On remand, the government may elect to retry the removal date issue before a sentencing jury, or it may request that the district court resentence Martinez under the two-year sentencing provision in 8 U.S.C. § 1326(a).” Id. at *1.

  “[T]he district court judge expressed views . . . that reasonably could lead the defendant to question the presence of bias. Because we do not think that the district court judge would be able to put these views out of his mind and in order to preserve the appearance of justice, upon remand the Clerk . . . shall reassign this case to a different district court judge . . . .” Id. at *28.

Of Note: The Court reversed after a jury trial, so why wasn’t the conviction knocked, instead of the sentence?

  Apprendi.

  The timing of the removal escalated the exposure on this case from two, to twenty, years. Id. *3. Martinez was found guilty of the offense – being found in the U.S. after removal – but because the jury question bore on this timing issue (removal after agg felony?) this was Apprendi sentencing error. The case was accordingly remanded for a sentencing finding by a jury, or (preferably!), imposition of the two-year max sentence. Id. at *27 & n.7.

How to Use: The hairy issue at the heart of Martinez was Cronic structural error. Id. at *14. Judge Wardlaw carefully works through this analysis, concluding that the Ninth “seems to have muddled the analysis of which trial stages are ‘critical stages’ so as to trigger Sixth Amendment rights and which are ‘critical stages’ so that the absence of counsel during the stage is structural error.” Id. at *14 & n.4.

  Though the Court dodges the ultimate issue here, Martinez is nonetheless a useful decision to at least identify the competing authority on structural error.                                              

For Further Reading: The Brave Little Tailor has nothing on POTUS: last week, President Trump fell 46 in one blow.

 For a list of the U.S. Attorneys asked to resign by the new Administration, with separate links to reporting articles, see Wikipedia entry here. 

Image of the Honorable Judge Kim Wardlaw from https://pbs.twimg.com/media/B0pTNhDIQAAaYJz.jpg

Image of Mickey Mouse, as the Brave Little Tailor, from https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiHFBnplzksFOx5vnVqJgS9HLxpivC2v3XYJkcT15Hj3y3iA7thXpG9TL7iYsCC5NqiB7DslS0IXYa4AZkrWfvj15holtAhEQcXHAwc-KX7tVsD8dF4abATpBQjj9DXHOrpKN0ivw/s1600/BIG1_--brave-little-taylor-1938-2_jpg.jpg 

Steven Kalar, Federal Public Defender, Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: 1,600 Pages, Yet Called "Briefs" - Christensen and Federal Hacking Statute

“Defendants have raised a staggering number of issues on appeal. Their briefs – fourteen in all – totaled over 900 pages.” . . .  “The government is similarly verbose. Its answering brief was nearly 700 pages.” United States v. Christensen, 2015 WL 5010591, at *2 & n.1. (9th Cir. Aug. 25, 2015), decision available here.

  

We’ll skip an issue or two here, and focus on (the winning) one.

Players: Decision by Judge Clifton, joined by Judges Fisher and Chief D.J. Christensen. NorCal’s own CJA Counsel Steven Gruel on the briefs (among others).

Facts: Private investigator Anthony Pellicano (above) illegally tapped calls for his clients. Id. at *2. He paid Turner, a phone employee, to grab needed data. Id. He paid LAPD Officer Arneson, to search confidential police databases for information about targets. Id. Along with other defendants, Turner and Arneson were charged with a bevy of wiretapping and RICO crimes and convicted after trial. Id. at *1. 

Specifically, Turner was convicted of aiding and abetting computer fraud under the Computer Fraud and Abuse Act (“CFAA”). Arneson was convicted of unauthorized computer access of US agency information. Id. at *11.

Issue(s): Was the jury erroneously instructed that it was a crime if Turner and Arneson accessed computers with authorization, but used that access to obtain data beyond that authorization. Id. at *12.  

Held: “Following the convictions, this court decided United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc). Nosal held the term “exceeds authorized access,” an element of both offenses under the CFAA, to be ‘limited to violation of restrictions on access to information, and not restrictions on its use. Id. at 864. Based on Nosal, we vacate the convictions under the CFAA.” Id. at 11 (emphasis in original). 

“The jury instructions defining both computer fraud and unauthorized computer access of United States agency information were plainly erroneous under Nosal. The error was prejudicial. We therefore vacate Turner’s conviction for aiding and abetting computer fraud, Arnerson’s convictions for computer fraud and unauthorized computer access, and Pellicano’s convictions for aiding and abetting both computer fraud and unauthorized computer access.” Id. at *13.

Of Note: One of (many, many) issues in this appeal was the alleged targeting and ultimate dismissal of a juror in one of the trials involved. Id. at *50 (Christensen, Chief D.J, concurring in part and dissenting in part). Judge Christensen (D. Montana) pens a particularly compelling dissent, strongly suggesting that the juror was targeted for questioning (and excused) not because on his ability to follow the law, because of his (pro-defense) views of the merits of the case. Id. 

This thoughtful dissent on juror independence – and the majority’s counterpoint on jury nullification – is buried in a long opinion, but is an important issue. As Chief Judge Christensen explains, the issue bears directly on the “Sixth Amendment right to a unanimous and impartial jury.” Id. at *53. Worth wading through a long decision to get to this most-troubling dispute.

How to Use: Trying to save Arneson’s conviction (the cop), the government argued that Nosal doesn’t limit criminal liability for access of government information – state and federal laws prevent such access. Id. at *12. The Ninth isn’t buying it. “Congress has created other statutes under which a government employee who abuses his database privileges may be punished, but it did not intend to expand the scope of the federal anti-hacking statute.” Id. 

This Christensen holding is a good Nosal brush-back for the government: the CFAA is an anti-hacking statute, not a general computer crimes catch-all. The sharp lines drawn by the Ninth are handy to have, when facing expansive theories of criminal liability under the CFAA.

                                               

For Further Reading: In a doubly sad day for the Ninth Circuit and the Central District of California, Circuit Judge Harry Pregerson, and his son, District Judge Dean Pregerson have both announced their intention to take senior status this winter. See article here.  

The year will bring many more celebrations and reflections on both of their careers – a well-earned transition for both, but a big loss for us all.

Image of Mr. Pellicano from http://desperateexes.com/wp-content/uploads/2008/12/pellicano550.jpg

Steven Kalar, Federal Public Defender, Northern District of California. Website at www.ndcalfpd.org

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