Case o' The Week: Merry Christmas, from St. Nintholas - Sanchez and Rule 29 Win (After Stip Facts Bench Trial!)

Charged with "felon in possession."

Stip'ed to all elements.

Bench trial.

Found guilty by the district court.

 And . . . home for the holidays!

United States v. Sanchez, 2018 WL 6720559 (9th Cir. Dec. 20, 2018) (mem.), decision available here.

Players: Mem. dispo by Judges D.W. Nelson, Wardlaw, and visiting DJ Pratt. Admirable reversal for insufficient evidence on a stip facts bench trial for CD Cal AFPD Jonathan Schneller.

Facts: After plea negotiations broke down, Sanchez had a stip facts bench trial on a § 922(g) (felon in possession) charge. Id. He stipulated to an essential element of this crime: that he had suffered a prior felony conviction. Id. This stip was discussed at the pretrial conference, mentioned by the government in opening and closing arguments during the stip facts bench trial, and was filed on the docket after the close of evidence. Id. The AUSA, however, forgot to move the stip into evidence or read it into the record. Id. 

  The defense did not identify this oversight in a Rule 29 motion during trial. Id. Instead, after the district court found Sanchez guilty, the defense moved for a judgment of acquittal arguing that the government had not introduced evidence of all elements. Id. (citing United States v. James, 987 F.2d 648 (9th Cir. 1993)). 

  The district court denied the motion. Id.

Issue(s): “John Alexander Sanchez appeals his conviction, by bench trial, of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). . . . Sanchez contends his conviction was not supported by sufficient evidence, because the stipulation to his prior felony was not properly entered in the evidentiary record.” Id. at *1.

Held: “We agree, and reverse his conviction.” Id. “In James, we held that a stipulation that had not been read to the jury or received into evidence” could not sustain a conviction, because there was no fact in evidence that the jury could take as proved. We noted that even a correct and signed stipulation not so presented would not be enough, and expressly rejected the argument that a defendant’s stipulation outside the trial record removed that issue from consideration such that no further evidence on the issue was required because a stipulation is conclusive proof of the fact agreed to. . . . .  

  “In the absence of the stipulation here, insufficient evidence exists that would convince any rational trier of fact beyond a reasonable doubt that Sanchez had been convicted of a crime punishable by over a year of imprisonment.” Id. (internal quotations and citation omitted).

  

Of Note: Had the government simply agreed to a conditional plea, and allowed Sanchez to appeal the denial of a pretrial ruling, this remarkable reversal of a conviction after a stipulated facts bench trial would have never happened. See Fed. R. Crim. Proc. 11(a)(2).

  We’re told the USAO’s refusal to offer conditional pleas saves government resources. The Feds are right: here, it saved the government the considerable cost of incarcerating Mr. Sanchez after a Section 922(g) conviction.

How to Use: Like a Christmas fruit cake, this brief mem dispo is dense with little nuggets (but is far tastier). The Ninth rebuffs the government’s attempt to limit the legendary James decision to jury trials. The distinction between jury and bench trials is “of no constitutional significance.” Id. 

  The government’s briefing apparently complained that the defense didn’t identify the government’s failure of proof during trial. See Appellant’s Reply Brief at 2018 WL 4740139. That curious complaint doesn’t even merit discussion in this mem. disp. 

  And the Ninth rejects a “judicial admission” pitch that the government threw into a footnote. “Consigning [the argument to] a single sentence in a single footnote” meant that the government had abandoned the argument. Id. at 1 & n.2.

  Good things come in small packages.  

                                               

For Further Reading: Last August, former CJA Panel Attorney David Anderson was nominated by President Trump to serve as the United States Attorney for the Northern District of California. 

  There had been some talk of a confirmation by the Senate last week. Other events – like the unfortunate shut down of the federal government of the United States of America – appear to have intervened. 

  For an update on Mr. Anderson’s confirmation odyssey, see Congressional website here. 

Image of Legal Clause from https://www.amazon.com/dp/B077SPZLZQ/ref=asc_df_B077SPZLZQ1545476400000?tag=merbethomgarshape-20&creative=395261&creativeASIN=B077SPZLZQ&linkCode=asn&ascsubtag=109354952&customId=B0752XM8J2&th=1

Image of Christmas package from https://www.pinterest.com/pin/424745808590079392/ 

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

.

Case o' The Week: Five Federal Circuits, Jumping on a Bed, Three Fell Off and Bumped Their Heads - Mahan

In Mahan, the Ninth creates a new rule and joins five other federal circuits that have held exchanging guns for drugs is using firearms "in furtherance" of drug trafficking, in violation of 18 USC § 924(c). United States v.William Mahan, __ F.3d __, 2009 WL 3807100 (9th Cir. Nov. 16, 2009), decision available here.

(Or, arguably, the Ninth has joined two other federal circuits that have so held in a published decision . . . .)

Players: Decision by Judge O’Scannlain (left), joined by Judge N. Randy Smith and Senior District Judge Wolle.

Facts: Oregonians Zane and Shawn offered to sell stolen guns to defendant Mahan. Id. at *1. The three smoked some meth while discussing the deal, then settled on trading the guns for 1/8th of an ounce of meth and $700. Id. Among other things, Mahan was convicted at trial for 18 USC § 924(c), possession of a gun “in furtherance” of a drug transaction. Id. Mahan’s Rule 29 motion was denied.

Issue(s): “We must decide whether an individual who trades drugs for guns possesses the firearms ‘in furtherance of’ his drug trafficking offense.’” Id. at *1.

Held: “Five other courts of appeals have confronted cases factually similar to this one, and all have either decided or assumed without deciding that a defendant who, like Mahan, received firearms in exchange for drugs possesses those firearms ‘in furtherance of’ a drug trafficking offense.” Id. at *2. “These cases demonstrate the common sense proposition that when one accepts a gun in exchange for drugs, the gun is an integral part of the drug sale because without the gun - the ‘currency’ for the purchase - the drug sale would not take place.” Id. at *3. “In light of the unanimity and clarity of our sister circuits’ precedent, we decline Mahan’s invitation to create a circuit split, and hold that a defendant who accepts firearms in exchange for drugs possesses the firearms ‘in furtherance of’ a drug trafficking offense.” Id. (emphasis added).

Of Note: The Mahan Court suggests that five other circuits have unanimously adopted this panel’s new § 924(c) rule. That suggestion bears further scrutiny. Mahan cites the unpublished Fourth Circuit decision, Boyd. Boyd, however, was issued in 2006: before memorandum dispositions became “cite-able” under new Federal Rule of Appellate Procedure 32.1. Indeed, the Fourth Circuit “disfavors” citation of its unpublished decisions issued before January 1, 2007. See U.S. Ct. App. 4th Cir. Rule 32.1.

The cited, two-page First Circuit memorandum disposition, Dolliver, was at least issued after the inane new rule that permits the citation of mem dispos as of January 1, 2007. First Circuit Rule of Appellate Procedure 32.1.0, however, limits the citation of mem dispos for their “persuasive” value and explains that they are not binding precedent. (That rule also requires parties to note that these decisions are “unpublished” in their briefs – a fact not mentioned in Mahan).

Of the three circuits with published decisions on this § 924(c) issue, one has “assumed without deciding” that guns traded for drugs are used “in furtherance” of a trafficking offense.

In short, only two circuits have held in a published decision that this type of “guns-for-drugs” trade is a sufficient nexus to support a § 924(c) conviction. The Mahan panel hangs the Ninth Circuit’s new § 924(c) rule on the “unanimity and clarity of our sister circuits’ precedent”: not quite as impressive a wall of authority as it appears at first glance.

How to Use: This is an infrequent fact pattern, but if it comes up an objection is worthwhile. As discussed above, the phalanx of circuit authority may not be as formidable as suggested in the Mahan opinion, and the Supreme Court may end up clarifying the real meaning of “in furtherance” in the Section 924(c) statute.

For Further Reading: The citation of memorandum dispositions is bad for indigent defense. The classic mem dispo quickly affirms a conviction or denial of a motion in a down-and-dirty document with little analysis and few facts. Bringing these bastard children of the judiciary into the case law clan infects clean jurisprudence and principled analysis with sloppy (and often, defense-hostile) reasoning.

For a contrary view, see the interesting article on the “new” rule allowing citation of mem dispos – and defenders’ responses. Stephen R. Barnett, The Dog that Did Not Bark: No-Citation Rules, Judicial Conference Rulemaking, and Federal Public Defenders, 62 Wash. & Lee Rev. 1491 (2005), available here.


Image of the Hon. Diarmuid O'Scannlain from http://www.abovethelaw.com/images/entries/diarmuid%20o%27scannlain%20diarmuid%20f%20o%27scannlain.jpg

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

.

Case o' The Week: "A Masterpiece of Craftsmanship" - Paul, "Unreasonable" Guideline Sentences, and Mem Dispos

The Ninth Circuit denies an en banc call for an opinion that is (in our view, if not Judge O'Scannlain's) a "masterpiece of craftsmanship" -- finding an in-guideline sentence "unreasonable" in one of the few post-Booker sentencing review cases to do so. United States v. Paul,__ F.3d __, No. 08-30125, 2009 WL 3109873 (9th Cir. Sept. 30, 2009) (Ord.), decision available here.

Players: Concurrence in order denying rehearing en banc by Judges Reinhardt (above left) and M. Smith. Dissent from order by Judge O’Scannlain (above right), joined by four other judges. Nice victory by Montana AFPD Michael Donahoe.

Facts: Patricia Paul was convicted of embezzlement and sentenced by Montana District Judge Haddon to an in-guideline sentence of sixteen months. Id. at *1. In Paul I, a memorandum disposition, a panel reversed the sentence as “not reasonable” because the judge hadn’t fully considered the many mitigating factors. United States v. Paul, 239 Fed.Appx. 353, 355 (9th Cir. Aug. 17, 2007) (mem.).

On remand, Judge Haddon reduced the sentence by a whopping month. 2009 WL 3109873, *1.

Paul appealed again, and the panel of Judges Reinhardt and M. Smith reversed again in a published opinion, finding Judge Haddon had “flouted” both the “spirit and express instructions” of the mandate. Paul, 561 F.3d 970, 973-74 (Paul II). In Paul II (a published decision), the per curiam panel explained in detail why the 16-month in-guideline sentence was unreasonable, and sent it back to another district court judge. Judge Hall dissented.

There was a sua sponte en banc call on Paul II; the order rejecting that call is the subject of this memo.

Issue(s): Either 1. “[W]hether a district court can disregard the spirit and express instructions of an appellate court’s mandate to reconsider an unreasonable sentence,” 2009 WL 3109873, or “[W]hether Paul’s new 15-month sentence was substantially unreasonable,” id., or both.

Held: En banc call rejected - either Judge Haddon ignored the spirit and express instructions of the mandate, or the 15-month in-guideline sentence was unreasonable, or both.

Of Note: This Paul order is worth a read because it lifts the curtain to the Ninth Circuit’s battles in this post-Booker sentencing. It contains a passage just for us – Judge O’Scannlain writes, “I dissent for the narrow purpose of sending the criminal defense bar this message: do not cite this case for the proposition that Paul's sentence was substantively unreasonable.” Id. at *1. Message received – Criminal Defense Bar take note: a distinct minority of the Ninth Circuit (five dissenting judges) doesn’t want you to cite Paul for the proposition that an in-guideline sentence can be unreasonable.

Of course, the remaining twenty-two active judges may think that such use of Paul is just fine . . . .

How to Use: Should you cite Paul I or II when arguing that an in-guideline sentence is unreasonable? You don’t have much choice – there’s precious few decisions reversing an in-guideline sentence as unreasonable.

This order also continues the interesting debate on mem dispos. Judge O’Scannlain grumbles in his dissent that Paul I should not be cited, because it is a mem dispo (despite the fact that its language and holding were “elevated” into a published opinion in Paul II).

Of course, thanks to an inane Supreme Court rule, mem dispos can now be cited. Granted, as Judge Tashima pointed out recently in Contreras, mem dispos often contain pretty dubious analysis. 2009 WL 2960623, *3 n.4 (referring to the McCoy mem dispo).

One of the biggest fights over the significance of mem dispos took place in the (now withdrawn) Carver v. Lehman case (see blog here). In Carter, two judges fought over the precedential value of mem dispos in a heated debate. The two jurists? Judges Reinhardt and M. Smith – the two judges now standing by Paul I and Paul II against Judge O’Scannlain’s dissent.

For Further Reading: Depressing that this brouhaha is over - gasp - one reversal of an in-guideline sentence. Who stole our Booker revolution? For a very interesting look at the state of our sentencing scheme, hit Professor Berman’s blog here. He describes a new article by Professor Ricardo Bascuas titled, “The American Inquisition: Sentencing after the Federal Guidelines.” From the abstract, sounds like a great piece – a blunt assessment of federal sentencing in the shadow of the mandatory – er, “advisory” – guidelines.



Image of the Hon. Diarmuid O'Scannlain from http://www.uscourts.gov/ttb/dec05ttb/legislationwaits/index2.html . Image of the Hon. Stephen Reinhardt fromhttp://www.law.harvard.edu/academics/clinical/imconf99/judger2.JPG

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

.

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



.