Case o' The Week: Timing Is(n't) Everything - Thornhill and the Admission of Sex Priors

Hon. Judge N.R. Smith

  “After” means after.

 (Unless it happens before).

United States v. Thornhill, 2019 WL 5152584 (9th Cir. Oct. 15, 2019), decision available here.

Players: Decision by Judge Tallman, joined by Judge Ikuta. 

 Well-reasoned concurrence by Judge N.R. Smith.  

Facts: A call lead the FBI to Thornhill. They found child porn on his phone, and a handwritten list of porn search terms. Id. at *1. He was charged with receipt of child porn and went to trial. Id. 

  Before trial, the government noticed its intent to introduce evidence of Thornhill’s prior state conviction for sexual abuse of a minor (his eleven-year old daughter.). Id. At trial, Thornhill stipulated that the images were actual minors and were produced outside of the state of Alaska, that the phone was his, and that the search-term list was in his handwriting. Id. at *2. Before any witness testified, the district court deemed the prior admissible. Id. at *8-*9 (N.R. Smith, J., concurring). 

  The government called one witness, an agent. The government introduced Thornhill’s prior, and the agent explained the prior had involved Thornhill’s daughter. Id. at *2. 

  Thornhill was convicted after two days of deliberation, and sentenced to 262 months (on a receipt case!) Id. at *2.  

Issue(s): “The question before us is whether the district court abused its discretion when it admitted evidence of Thornhill’s prior Alaska state conviction for sexual abuse of a minor in the second degree.” Id. at *1.

Held: “We conclude that it did not, and we affirm.” Id.

Of Note: This appeal is about the interplay of FRE 414 (permitting evidence of similar crimes in child molestation cases), FRE 403 (the “probative v. prejudicial” balancing test) and United States v. LeMay, 260 F.3d1018 (9th Cir. 2001) (the Ninth’s explanation of how these rules have to interact).

  The 2001 LeMay opinion set out five factors used to determine admissibility. The fifth factor is “the necessity of the evidence beyond the testimonies already offered at trial.” Id. at *3 (emphasis added). But wait -- in Thornhill, the D.J. didn’t wait to hear the testimony offered at trial. Instead, the court ruled that the prior was admissible before any witnesses testified. So how does the majority reconcile the non-discretionary language of LeMay, with the premature admission in Thornhill? 

  It doesn’t, opines Judge N.R. Smith. 

  In a compelling concurrence, Judge N.R. Smith expresses his “concern” with the majority’s “casual disregard” of the “non-discretionary language” of LeMay. Id. at *7 (N.R. Smith, J., concurring). The concurrence correctly explains that child molestation priors are the easiest for the government to get in, yet they have a “profound impact” on juries. Id. at *8. Because of the jury antipathy these priors evoke, it is particularly important that a district judge balance the admission of a child molestation prior against the testimony the jury has already heard. Id. at *8. In Judge Smith’s view, the Thornhill panel changed Ninth law (LeMay) with no intervening Supreme Court decision: a Miller v. Gammie faux pas. Id. at *8.

How to Use: Judge N.R. Smith concurred in the affirmance of the conviction, despite the majority’s approach, because he viewed the trial error as harmless. Id. at *9 & n.3 (N.R. Smith, J., concurring). A different fact pattern may have cost the government its conviction, after the premature admission of a sex prior. Id.

  Even Judge Tallman, writing for the majority, concedes that “a more complex case might warrant reserving a final ruling until after testimony has been elicited.” Id. at *6. In the majority opinion Judge Tallman emphasizes the simplicity of the Thornhill trial in an effort to avoid LeMay’s “after testimony” rule. 

  Remember that the LeMay fifth factor still exists, and target Thornhill as ripe for distinction: few trials will ever be as simple as this one-witness, many-stip affair.

                                               

For Further Reading: Lousy rules of sex-crime evidence rely on assumptions about recidivism. Turns out, however, that sex offenders are at a lower risk of general recidivism. “Among violent offenders, the annual recidivism rates of prisoners sentenced for homicide or sexual assault were lower than those sentenced for assault or robbery across the 5-year period.” 

  For this intriguing DOJ study on recidivism, see report here. 

Image of Judge N.R. Smith from https://www.youtube.com/watch?v=NsL1lZjj_vY

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

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Case o' The Week: "Damned be him that first cries hold, enough" custodial time -- A Toughy for McDuffy

“Lay on, MacDuff, and damned be him that first cries hold enough.” MacBeth, Act 5, Scene VII.

United States v. McDuffy, 2018 WL 2207243 (9th Cir. May 15, 2018), decision available here.

Players: Decision by Judge N.R. Smith, joined by Judges Carlos Bea and D.J. Nye.  

Facts: McDuffy robbed a bank while brandishing a handgun. Id. at *1. When a customer tried to grab the gun,  McDuffy shot him in the chest (he later died from the wound). Id. McDuffy was arrested, charged with several federal bank robbery offenses, and went to trial. Id.

  One charge at trial was Section 2113(e) of Title 18; that statute requires “an enhanced punishment for an individual who kills a person in the course of committing a bank robbery.” Id. at *1. McDuffy argued for an instruction that would require the government to prove he “knowingly” killed a person in the course of a bank robbery. Id. (There was some evidence introduced at the trial that McDuffy accidentally discharged the gun. Id. at *1 & n.2.) The court rejected that request, and gave the standard general intent instruction instead. Id.

   McDuffy was convicted and, as required by § 2113(e), was sentenced to life. Id.

Issue(s): “McDuffy appeals, claiming the district court misstated the law when it instructed the jury that § 2113(e) applies to accidental killings.” Id. at *2.

Held: “On de novo review, we find § 2113(e) does not contain a separate requirement that the defendant intend the killing which results from his bank robbery (hereafter, the ‘mens rea requirement’). Thus, the enhancement applies even if a bank robber accidentally kills someone in the course of a bank robbery..” Id. at *2.
  “[T]he district court did not err in instructing the jury that § 2113(e) applies as long as the bank robber kills someone in the course of the bank robbery, regardless of whether the killing was accidental. The only mens rea required is the mens rea necessary to commit the underlying bank robbery.” Id. at *5.

Of Note: Troubling business, when a life sentence results from a general intent offense. The die was cast, however, in Dean v. United States, where CJ Roberts quipped: “Accidents happen. Sometimes they happen to individuals committing crimes with loaded guns.” 556 U.S 568, 570 (2009). 

  Judge Smith tracks the Dean holding requiring minimal mens rea showings for enhanced sentencing under Section 924(c)(1)(A)(iii). Id. at *3-*5. Dean, the Ninth concludes, controls the mens rea issue for Section 2113(e): Congress didn’t intend a higher scienter requirement for this statute, and the Ninth won’t either. Id. at *4. 

  Admittedly not a surprising result – the 7th, 8th, and 10th have the same rule – but disappointing nonetheless.

How to Use: Section 2113(e) is high-stakes sentencing statute for our clients. As held in McDuffy, the government has distressingly low mens rea requirements needed to obtain a life sentence. Note the death of a victim is not the only way to trigger that statute – the enhancement can also be imposed if the robber forces anyone to “accompany him without the consent of such person.” See Section 2113 here.  

  Judge N.R. Nelson explains that the Ninth doesn’t get to that aspect of the statute in McDuffy, id. at *2 & n.3: that fight may be available for another day (although a theory of “accidental” kidnapping does seem a tough row to hoe).

                                               

For Further Reading: In the old days, the “force and violence” prong of the federal bank robbery statute did not require intentional violent force. See e.g. United States v. Alewelt, 532 F.2d 1165 (7th Cir. 1976) (upholding conviction when a teller was pushed to the floor). 

  Bewilderingly, in United States v. Watson, 881 F.3d 782 (9th Cir. 2018), the Ninth nonetheless held that armed bank robbery is a crime of violence that meets Johnson requirements – the intentional use of violent force. 

  Let’s take Watson at its word, revisit bank robbery jury instructions, and require the new Watson / Johnson elements. For a historical look at the origins of the current, weirdly inconsistent status of bank robbery mens rea, see, “Take the Money and Split: The Current Circuit Split and Why Actual Force and Violence or Intimidation Should Not Be Required Under Section 2113(a) of the Bank Robbery Act,” available here. 

Image of MacBeth and MacDuff from http://betterlivingthroughbeowulf.com/trumps-misuse-of-macduffs-birth-language/

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

Case o' The Week: The Ninth Goes Generic - Cisneros and Categorical Analysis of Oregon Priors

 Just another “generic” decision (happily!)

United States v. Cisneros, 2016 WL 3435389 (9th Cir. June 22, 2016), decision available here.

The Hon. Judge N.R. Smith

Players: Decision by Judge N.R. Smith, joined by Judges Goodwin and Ikuta. Big win for D. Or. AFPD Brian Butler.  

Facts: Cisneros was sentenced to an ACCA mandatory-minimum fifteen years. Id. at *2. He had six priors: conspiracy to deliver a controlled substance, three Oregon eluding felonies, and two first-degree Oregon burglaries. Id. The district court held that all six prior convictions qualified as predicates. Id. The Ninth upheld the sentence, but a G.V.R. (granting, vacating, and remanding) from the Supreme Court sent the case back to the Circuit.

Issue(s): “We must determine whether at least three of Cisneros's previous convictions are . . . violent felonies under ACCA.” Id. “[I]n order for ACCA's mandatory-minimum sentence to apply to Cisneros, both of his previous convictions for first-degree burglary under [Or. Rev. Stat.] section 164.225 2 must qualify as . . .  violent felonies. [T]hey do not have ‘as an element the use, attempted use, or threatened use of physical force.’ . . . ‘Therefore, we must determine whether Cisneros's convictions for first-degree burglary qualify as violent felonies under § 924(e)(2)(B)(ii)—i.e. whether a conviction for first-degree burglary under Oregon law is a categorical match to generic burglary under federal law.’” Id. at *3.

Held: “The government concedes that these prior [Oregon fleeing or attempt to elude police] convictions are not . . . violent felonies. We agree . . .” Id. at *2. 

  “Oregon's burglary statute is not a categorical match to generic burglary, because the Oregon statute defines building more broadly than does generic burglary and therefore criminalizes more conduct than generic burglary.” Id. at *4. ‘Oregon Revised Statutes section 164.225 is not divisible. This conclusion ends our inquiry; we need not proceed to step three. Cisneros's burglary convictions are not a categorical match to generic burglary, because the Oregon statute is overbroad and indivisible. Therefore, such convictions do not qualify as violent felonies under § 922(e)(2)(B) and ACCA’s mandatory minimum sentence is not applicable to Cisneros.” Id. at *6.

Of Note: Big week, for Johnson efforts – and all good news. In addition to the Ninth’s decision in Cisneros, the Supreme Court issued Mathis, 2016 WL 3434400 (June 23, 2016). Justice Kagan explains that the “underlying brute facts or means” make no difference when there’s a mismatch of elements between the prior and the generic offenses: even if the defendant’s conduct in the prior fits within the generic offense. Id. at *6. A big win for Iowa Fed. Defender James Whalen. 

   And back in the Ninth, an unusual event: a published decision from a Screening Panel (Judges Bea, Watford, and Friedland). In Orona v. United States, 2016 WL 3435692 (June 22, 2016), the per curiam opinion explains that the AEDPA clock is tolled when a petitioner files a SOS motion in the Ninth. Id. at *2. Good news for the Johnson brigades nervously checking SOS dockets, as the 1-year Johnson deadline loomed. See generally id. at *2. (“Given the large volume of second or successive applications our court must process each month, it frequently takes us longer—sometimes much longer—than 30 days to rule on such applications.”)  

How to Use: Mathis and Cisneros are welcome additions for our § 2255 oppositions that are soon due. Now, keep a nervous storm eye this week on the impending Voisine. See Professor Rory Little’s (gloomy) blog analysis here. 

  The good Prof. has been right before: here’s hoping his prediction is off the mark, this time.

                                               

For Further Reading: Paresh, your office is a mess! For a nice piece on all of our Johnson efforts, and a well-deserved shout-out for our Johnson hero, Paresh Patel, see One of Scalia’s Final Opinions Will Shorten Some Federal Prison Sentences, available here.

Image of the Honorable Judge N.R. Smith from http://dl9fvu4r30qs1.cloudfront.net/eb/8f/61678b0b4887866b0e92bd171f58/judge-nr-smith.R.%20Smith.jpg

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

Case o' The Week: Ninth OK with (Account Expert) Lay -- Aubrey and (Non)-Expert Accountant Opinion

  He could have been admitted as an expert, but instead the government accountant testified as a lay witness.

  He could have shown the evidence of misappropriation, but instead the government accountant showed a “summary chart” that became the evidence.

   Coulda, shoulda, woulda . . .

United States v. Aubrey, 2015 WL 5201800 (9th Cir. Sept. 8, 2015), decision available here.

Players: Decision by Judge N.R. Smith, joined by Judges O’Scannlain and Ikuta. Hard-fought appeal by Chief Ass’t Michael Kennedy, and Defender Rene Valladares, D. Nev. FPD.  

Facts: HUD allocates money to Indian tribes to construct affordable housing. Id. at *1. Aubrey was a contractor whose companies built houses on Indian lands. Id. at *2. He received HUD funds for a housing project, and placed them in a comingled account with his own funds. Id. at *3. Id. His subcontractors who did authorized work on Indian housing did not receive the payments cut by HUD; payments that had wound their way to Aubrey. Id. He was charged with conversion and misapplication of tribal funds. Id. at *4. At his trial, a HUD forensic accountant testified, introduced summary charts tracing the movement of funds, and explained he had used the “last-in-first-out” accounting method. Id. at *4. The accountant – who had not been admitted as an expert – testified over defense objection. Id. Aubrey was convicted. Id. at *5.

Issue(s): “Aubrey argues that the district court erred in admitting [the accountant’s] testimony as summary testimony and by admitting the summary exhibits, because he was not certified as an expert witness.” Id. at *5.

Held: “[The accountant] was not required to be certified as an expert. [The accountant] testified about his own personal investigation . . .  in his capacity as a HUD auditor in accordance with [FRE] 701. Although [the accountant] might have been eligible to be certified as an expert, the district court properly restricted his testimony to the areas in which he had personal knowledge (the documents, investigation, and the methods he used to prepare his summary) and prevented him from providing in-depth analysis of various accounting methods. Simply because [the accountant] stated that he used ‘last-in-first-out’ to construct his summary charts did not transform his testimony into expert testimony. Instead, [the accountant] was merely providing foundation for the evidence he was presenting. Further, when [the accountant] was prompted by the prosecution to discuss the merits of the “last-in-first-out” accounting method, the district court properly prevented [the accountant] from answering, as that sort of testimony could stray into the realm of expert testimony. Accordingly, two passing references to the ‘last-in-first-out’ method (when explaining his own procedure in constructing the charts) is not sufficient to require the district court to certify [the accountant] as an expert witness.” Id. at *11.

Of Note: A parallel issue was the use of summary charts, under FRE 1006. Id. at *11. The accountant prepared these charts after going through bankers boxes of evidence. Id. The Court upheld admission of these charts as evidence, because the underlying docs were (apparently) admissible (though not admitted?), were given to the defense, there was no objection as to accuracy, and there was a pattern limiting instruction. Id. Important to note, though, that the Court resorts to plain error analysis because there was no objection to the charts below. Id. at *12. This seems a squirrely and dangerous area of evidence: the jury is instructed that the charts are “only as good as the underlying supporting material,” but the jury is never actually given the underlying supporting material to evaluate. The Ninth’s Pattern Instruction4.16 could use some work: maybe a requirement that supporting docs referenced in a summary chart must actually be admitted and made available to the jury?

How to Use: It is bad enough when a gov’t agent (cop) testifies as both a lay witness and expert. See, e.g., Torralba-Mendia, 784 F.3d 652 (9th Cir. 2015), blogged here.  Aubrey is worse: this accountant should have gone through qualifying as an expert, but wasn’t offered as an expert at all. Fortunately, the Ninth emphasizes the court’s limitations on explanations of accounting procedures – a limitation to emphasize when faced with this type of witness.

                                               

For Further Reading: This case is big news, with downstream consequences, in the Navajo Nation. See Navajo Times article here.  

Image of cufflinks from http://www.thecufflinksshop.com/4452-large_tcls/trust-me-i-m-an-accountant.jpg

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

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