Case o' The Week: Ninth Mulls Geometric Skeptics - Rodriguez Gamboa and Lorenzo Challenges to Cal H&S Section 11378

  Feds attack California’s efforts to criminalize meth.

United States v. Rodriguez-Gamboa, 2019 WL 7206435 (9th Cir. Dec. 27, 2019), decision available here.

Players: Decision by Judge Hurwitz, joined by Judge Wardlaw and DJ Bataillon. 

  Righteous fight by CD Cal AFPD David Menninger.  

Facts: Rodriguez-Gamboa, a Mexican national, was removed after sustaining what she was told was an agg felony: possession of meth for sale, in violation of California Health & Safety Code § 11378. Id. at *2.

 She reentered the U.S. without inspection, was charged with illegal reentry in violation of 8 USC § 1326, and pleaded guilty. Id.

  The Ninth then held in “Lorenzo I” that § 11378 does not qualify as a “controlled substance offense” under the immigration statute, because the California statute applied to both “optical and geometric isomers” of meth. Id. See generally Lorenzo Blog entry here. 

  Rodriguez withdrew her plea. Government experts then declared that geometric isomers of meth do not, in fact, exist. Id. at *3. Relying on Lorenzo I, the district court dismissed the Information: the government appealed. Along the way, the Ninth replaced Lorenzo I with Lorenzo II, a mem dispo that arrived at the same result at Lorenzo I. Id. at *1.   

Issue(s): “We are asked to decide whether the definition of methamphetamine under California law is broader than the definition under corresponding federal law. The issue is pivotal in this case because . . . Rodriguez-Gamboa did not commit illegal reentry under 8 U.S.C. § 1326 if the California law is categorically broader than the federal one.” Id. at *1.

Held: “The government’s argument rests entirely on its factual assertion that the geometric isomer of methamphetamine does not exist. But, the district court never made such a finding, and we cannot do so for the first time on appeal. . . . . Because resolution of the factual issue of whether geometric isomers of methamphetamine exist has the potential to inform our disposition of this appeal and future cases, we remand to the district court for the limited purpose of resolving that evidentiary issue in the first instance. The panel will retain jurisdiction over the appeal and address its merits after the district court reports its factual findings.” Id. at *4. (internal citation and footnote omitted).

Of Note: Rodriguez-Gamboa is fascinating, because it highlights one of many tensions in the categorical analysis. The government argues that there is no “realistic probability” that Rodriguez was convicted of a broader “geometric isomer” offense in California, because such geometric isomers do not exist.

  Rodriguez shrugs, and points to the literal text of the California statute – a state law indisputably broader than the federal offense, because it criminalizes isomers not covered by the feds. Id. at *4.

  The Ninth resolves this tension by, well, putting if off for another day. After the district court does some fact-finding on geometric isomers, the same Ninth panel will then tackle the question. Until that dust settles, continue to preserve Lorenzo challenges to § 11378 priors.   

How to Use: A threshold appellate issue was whether Rodriguez should have been allowed to withdraw her guilty plea. Judge Hurwitz makes short work of that question. Fed. R. Crim. Proc. 11(d)(2)(B) permits a district court to allow a defendant to withdraw a guilty plea. A defendant has to show a “fair and just reason” for requesting the withdrawal. Id. at *3. “A change in the law can justify withdrawal of a plea,” id., -- and Lorenzo I fit the bill. Remember Rodriguez-Gamboa when changes in law makes a plea agreement less attractive.

                                               

For Further Reading: Do new Trump appointees await the Ninth in the New Year? 2020 will begin with ten Trump jurists on the Ninth (as Judge VanDyke takes Senior Judge Bybee’s seat). See Seniority List here.

 A trio of active Bush appointees remain in the Circuit: Judges Callahan, Milan Smith, and Ikuta. See Federal Bar Association summary here. 

Image of vintage USAF Poster from https://imgur.com/r/vintageads/liQ7BBN

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

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Case o' The Week: Ninth Rejects Gov't's Optical Illusion - Lorenzo v. Sessions, Cal H&S 11378 and Federal "Controlled Substances"

  For Alain Baxter, and for Elisio Atenia Lorenzo, isomers make all the difference.

Lorenzo v. Sessions, 2018 WL 4100360 (9th Cir. Aug. 29, 2018), decision available here.

British alpine skier Alain Baxter, disqualified because of a (legal) isomer of meth

Players: Decision by Judge Fisher, joined by C.J. Thomas and Judge Bea.

Facts: Lorenzo, a citizen of the Philippines, was convicted of possession of meth for sale in violation of Cal. Health and Safety Code § 11378. Id. at *2.

  Homeland Security initiated removal proceedings. Id. The removal relied on the characterization of Lorenzo’s priors as “relating to a controlled substance,” as defined (by cross-references) in the INA. Id. at *2.

   Lorenzo moved to terminate proceedings, arguing that the Cali definition of meth was broader than the Fed definition of “controlled substances,” because the federal Controlled Substance Act (“CSA”) included only optical isomers of methamphetamine. California’s definition included both optical and geometric isomers of methamphetamine. Id. at *3.

  The IJ rejected Lorenzo’s challenge, the BIA affirmed, Lorenzo appealed.

Issue(s): “We recognize that, in applying the first step in the categorical approach in this case, we have had to examine a disjunctive list within another disjunctive list. At the more general level, we must examine the disjunctive list of drug types – e.g., cocaine, heroin, methamphetamine – covered by California law. . . . At the more specific level, however, California law also includes disjunctive lists within a drug type, listing, for example, several types of methamphetamine – methamphetamine, its salts, its optical and geometric isomers, and salts of its isomers.” Id. at *7 (citation omitted).

Held: “Although we may not have expressly addressed this situation before, it is apparent that, when this situation arises, we must conduct a Taylor analysis with respect to both disjunctive lists.” Id.

  “We hold Lorenzo’s methamphetamine convictions under §§ 11378 and 11379(a) do not qualify as grounds for removal under 8 U.S.C. § 1227(a)(2)(B)(i).” Id. at *3.

  “In sum, California law demonstrates that optical and geometric isomers of methamphetamine are alternative means of committing a single controlled substance offense under California law. The government does not argue otherwise. The overly broad methamphetamine element, therefore, is not divisible. Because the California statute is overbroad and not divisible with respect to the overbroad element, we do not apply the modified categorical approach to determine whether Lorenzo’s convictions involved a type of methamphetamine covered by the CSA.” Id. at *8.

Of Note: This is a huge win for Benjamin Aiken and his Orrick colleagues, and the immigration bar is excited at prospects for relief. Lorenzo, however, has important ramifications for criminal defense as well. Most obviously, § 1326 clients with H&S § 11378 priors now have a challenge to their prior removals. 

  (And other opportunities beckon . . . .)

How to Use: If H&S § 11378 (meth) doesn’t qualify as a “controlled substance” for the INA, does it qualify as a “controlled substance” for the Guidelines (Career Offender, § 2K2.1, etc.), or for a § 851 federal prior?

    Nope (we think).

  In United States v. Leal-Vega, 680 F.3d1160, 1167 (9th Cir. 2012), Judge M. Smith explained that “controlled substances” in the Guidelines refer to the federal drug schedules (the Controlled Substance Act, or “CSA.”). That’s the very same CSA analyzed by Judge Fisher in Lorenzo. 
  Big red flag for clients with H&S § 11378 priors: they may not be Career Offenders, may have substantially lower felon-in-possession guidelines, and may not be “prior-able” under 21 USC § 851.   

                                               

For Further Reading: As Lorenzo illustrates, “categorical analysis” – huzzah!

  In a worrisome development, however, the Sentencing Commission is mulling whether to instead look at “actual conduct” for priors. See final notice here, Priority Three.

  Although Commissioners Barkow and Breyer both have reservations, see hearing video here, at 7:00 – 13:55, a Commission “examination” of the categorical analysis is nonetheless underway.

 Imagine the mischief we’ll make with mini-sentencing trials in federal court, bickering over decades-old evidence from dusty old state proceedings!  

Image of "old evidence" from https://www.youtube.com/watch?v=a2buTsEp13M 

Image of Alain Baxter from http://www.chm.bris.ac.uk/motm/methamphetamine/methh.htm

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

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Case o' The Week: Ninth Won't Cross A Bridge Too Far - Lemus and Extrapolating Purity When No Drugs in Evidence

  The Ninth refuses to gaze into the "crystal" ball to guess at meth purity, when no meth is in evidence.

United States v. Lemus, 2016 WL 805739 (9th Cir. Mar. 2, 2016), decision available here.

Players:  Decision by Judge M. Smith, joined by Judges Reinhardt and Paez. Big win for Deputy Fed. Public Defender Michael Tanaka, C. D. Cal. Federal Public Defender.

Facts: FBI Informant Ana Montano met Lemus in a bar. Id. at *1. After she discussed Lemus’s gang, she asked if he could supply her with ounce quantities of meth. Id. Lemus replied he had a pound for sale. Id. 

  The informant later tried to buy ounces from Lemus; he demurred, saying his source only sold it by the pound. Lemus offered the informant a sample (she declined). Id. 

  Agents followed Lemus, but didn’t conduct a traffic stop, and did not get a search warrant to search for drugs. Id. No drugs were ever seen, or recovered. Id. 

  Lemus was convicted after a jury trial of possession of over 50 grams of meth with the intent to distribute. Id.

Issue(s): “Lemus argues that the quantity finding is unsupported by evidence because there was no drug seized that could be tested for purity to determine whether it contained at least 50 grams of methamphetamine.” Id. at *4.

Held: “It would be a bridge too far to allow a jury to extrapolate from comparison drugs that were not from activity related to the defendant or a conspiracy in which the defendant is involved. A 90% level of purity would more than suffice to support the jury’s quantity determination, if adequately connected to the drugs concerning which Lemus had constructive possession. However, the government failed to include evidence connecting that purity level to Lemus. Viewing the evidence in the light most favorable to the government, no reasonable factfinder could have determined beyond a reasonable doubt that Lemus possessed more than 50 grams of methamphetamine.” Id. at *5. 

  “Because the drug quantity fails based on insufficient evidence, the government may not retry that issue, and instead must seek resentencing based solely on the basic possession conviction, i.e., under the lowest quantity category in Federal Sentencing Guidelines § 2D1.1.” Id.

Of Note: Why is this conviction upheld? There were no drugs seized or even seen: the evidence was solely Lemus’s boasting during the meetings with the informant. Remember the good old corpus delecti rule? A defendant’s own inculpatory statements cannot – alone – support a conviction? Id. at *2. The Court explains that corpus delecti remains the rule, but (thus far) in the Ninth, it applies only as to a defendant’s confession, not to contemporaneous crime statements. Id. 

  Here, Lemus’s “pound” drug brags happened during the offense (he dismissed them as jokes during his “confession”) so corpus delicti is not a bar. 

  The Second and Tenth Circuits have (wisely) extended a corroboration requirement from the confession context to include statements made during an offense. Id. at *3. Judge Smith avoids whether to adopt that prudent requirement in the Ninth, finding that in any event there was sufficient corroboration from Lemus’s other actions during the offense. Id. 

   It thus remains an open question in the Ninth whether corpus delecti corroboration requirements extends past confessions, to offense statements.

How to Use: This is a welcome win on drug mand-mins, but read the opinion carefully. Judge Smith notes the Ninth has previously upheld convictions requiring proof of meth amounts in the absence of the drugs themselves (and thus, without purity testing) when the jury could infer the meth offered was at least as pure as some actual meth, related to the case, that could be used for comparison. Id. at *4. A great outcome, in Lemus, but beware of the caveats.

                                               

For Further Reading: For a compelling explanation of the corpus delicti rule (told in the context of a troubling murder conviction), see David A. Moran, In Defense of the Corpus Delicti Rule, available here.

Image of “A Bridge Too Far” from http://static.rogerebert.com/uploads/movie/movie_poster/a-bridge-too-far-1977/large_ormdFwSHGVgsWdrzP5pRPaA6nme.jpg

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

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Case o' The Week: Microwave meth and MVRA, Brock-Davis

Microwave meth in Missoula, Montana motel makes for pretty good MVRA decision. See United States v. Rose Brock-Davis, __ F.3d __, 2007 WL 2828819 (9th Cir. Oct. 2, 2007), decision available here.

Players: Admirable win by Montana AFPD John Rhodes. Interesting opinion with some important new MVRA rules, by Judge Tashima.

Facts: A housekeeper discovered a suspicious substance in a Missoula, Montana, motel where Rose Brock-Davis and her co-D had checked-in. 2007 WL 2828819, *1. A bust revealed a microwave and microwave precursors in their car. Id. at 1. The co-D warned cops to check another motel room: in it, they found an ice box with meth chemicals, and other material associated with a meth lab. Id. at *2. Brock-Davis pleaded guilty to fraud and identity theft, and conspiracy to manufacture meth. Id. at *1. At sentencing, the owner of the second motel sought restitution for professional clean-up of the meth chemicals, lost rental value of the room, and for asbestos clean-up – required or suggested by the DEA. Id. at *2. Over defense objection, the Court issued a restitution order of $13,248.45 to the hotel for all of the above “losses.” Id. at *3.

Issue(s): “Brock-Davis contends, first, that there was no statutory authorization for the restitution imposed, because the MVRA does not authorize remediation costs for a motel room. Second, she argues that the motel was not a “victim” of her offense as defined by the MVRA. Third, she contends that there was an intervening cause of the loss to the motel that prevents her from being liable for restitution. Fourth, she urges that inconsistencies in the amounts requested invalidate them. Fifth, she argues that she should not have been liable for lost income. Finally, she contends that she should not have been held liable for costs related to asbestos testing performed at the motel because these costs were not directly related to her offense of conviction.” Id. at *1.

Held: “Brock-Davis’ first four contentions are unpersuasive but, as to the fifth and sixth issues, we conclude that the district court erred when it awarded restitution for the motel’s lost income from the motel room and when it required restitution for the total amount of the unsegregated bill, which included asbestos-related costs. Accordingly, the restitution order will be vacated and remanded as to the issues of lost income and asbestos-related costs.” Id.

Of Note: There’s a number of new Ninth Circuit rules for Mandatory Victim Restitution Act (MVRA) cases in opinion. Judge Tashima holds that the MVRA covers restitution for repair of property - like motel rooms - to their pre-crime state. Id. at *4-*5. Second - and of concern – the Court allows restitution for the second damaged hotel, even though Brock-Davis didn’t plead to the meth in that room. Id. at *6. Instead, as noted above, she plead to a conspiracy involving an entirely different “meth” motel. This is a disappointing expansion of the MVRA which sweeps in what is effectively “relevant conduct” (although this is a holding based on amendments to the MVRA). Third, the Court reaffirmed that consequential damages – like the inability to rent rooms – are not included under the MVRA, and reverses the restitution order on that basis. Id. at *9. Finally, the Court emphasized the need for a causal link between the crime and restitution ordered: here, “asbestos testing and removal” didn’t cut it. Id. at *8.

How to Use: AFPD John Rhodes admirably takes-on a restitution order on pretty unsympathetic facts: meth contamination of a motel room. The decision illustrates that the MVRA is not without its limitations, and restitution orders that seek recovery beyond damage caused by the crime are can be successfully attacked. Note also that John preserved a Booker challenge for Supreme Court review, id. at 1 n.1; an example worth following .

For Further Reading: How many Ninth Circuit decisions involve meth in a motel in Missoula, Montana? A bunch: United States v. Barragan, 263 F.3d 919 (9th Cir. 2001); United States v. Barragan-Espinoza, 350 F.3d 978 (2003); United States v. Dowd, 417 F.3d 1080 (2005), and of course, Brock-Davis. For some interesting stats on Montana “ice,” visit the Montana Meth project at http://www.montanameth.org/ .

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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