Case o' The Week: C.O.V. (without the "V") - Dominguez and Attempted Hobbs Act Robbery as Crime of Violence

  Dissent's cordial contempt, for attempt, attempt.

United States v. Monico Dominguez, 2020 WL 1684084 (9th Cir. Apr. 7, 2020), decision available here.

Players: Decision by Judge Silverman, joined by visiting S.D. District Judge Anello.

  Compelling dissent by Judge Nguyen.

  Hard-fought appeal by ND Cal CJA attorney Gene Vorobyov.  

Facts: Dominguez and a co-conspirator robbed a “Garda” armored car warehouse and made off with nearly a million dollars. Id. at *1. They were not caught.

  About a year later, an informant tipped the FBI off to Dominguez’s plans to pull off another armored car robbery. Id. at *2. The FBI set up a fake crime scene, to make it difficult for Dominguez to drive near the warehouse.

  Armed with a pistol, Dominguez drove to the warehouse to commit the robbery – but called the snitch and nixed the caper after getting within a block, and encountering the FBI “crime scene.” Id.

  He was arrested the next day, and charged with – among other things – attempted Hobbs Act robbery of the warehouse, and a Section 924(c) charge based on that attempt. Id.

Issue(s): Is attempted Hobbs Act robbery a “crime of violence” that will support a Section 924(c) charge?

Held: “We hold that attempted Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3)(A).” Id. at *8.

Of Note: With a polite tone and brutal logic, Judge Nguyen’s dissent tears apart the reasoning of the majority’s “attempt” holding. Id. at *9 (Nguyen, J., dissenting). She starts with the obvious: an attempted Hobbs Act robbery can be committed without any actual use, attempted, use, or threatened use of physical force. Id. A defendant can go down for attempted Hobbs Act robbery even if a “substantial step” towards that crime does not involve “physical force” acts necessary for a “crime of violence” designation. Id. at *10. Judge Nguyen then explains how the majority’s analysis “impermissibly bootstraps a defendant’s intent to commit a violent crime into categorizing all attempts of crimes of violence as violent crimes themselves.” Id. at *11.

  Judge Nguyen’s analysis is spot on: this decision should go en banc. Efforts underway for a PFREB.

How to Use: The majority conspicuously avoids deciding whether “[c]onspiracy to [c]omit Hobbs Act robbery is also a crime of violence under 18 U.S.C. § 924(c)(1)(A).” Id. at *8. (Judge Nguyen insinuates the majority’s dodge allowed it to avoid an irreconcilable conflict: the government conceded that conspiracy to commit Hobbes Act robbery is not a crime of violence. She rightly asks, “If conspiracy and attempt have the same intent requirement, how, under the majority’s approach, could the result be different? The majority doesn’t say.” Id. at *11.)

  In any event, seize the government’s concession in Dominguez: conspiracy to commit Hobbs Act robbery is not a crime of violence supporting a Section 924(c) charge.

                                               

For Further Reading: Over two thousand inmates have tested positive for COVID-19 in Ohio prisons. See article here. Over 1,800 inmates have tested positive in one Ohio prison alone. Id. Why has California generally, and Santa Rita Jail specifically, not seen Ohio’s numbers of positive tests? Because Ohio is “testing everyone -- including those who are not showing symptoms – [and is] getting positive test results on individuals who otherwise would have never been tested because they were asymptomatic.” Id. (emphasis added).

   Santa Rita Jail, by marked contrast, is not testing its entire inmate population: its report of positive cases is therefore radically under-inclusive. See Santa Rita Jail COVID-19 website here. (reporting 33 positive inmate and staff cases); see also “Asymptomatic coronavirus cases at Boston homeless shelter raise red flags, available here. 

  For graphs showing the alarming rates of (underreported) positive tests in Santa Rita, see ND Cal APFD’s Candis Mitchell’s analysis here. 

Image of Garda armored car from https://abcnews.go.com/US/fbi-men-shootout-rob-armored-car-broad-daylight/story?id=64822253  

Image of Santa Rita Jail wire fence from https://www.berkeleyside.com/2020/04/01/in-covid-19-move-alameda-county-cut-its-jail-population-a-new-state-policy-could-undermine-that

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

Case o' The Week: Ninth Says No to Iffy Quo - Kimbrew and federal bribery statute defenses

  It’s who you know, for quid pro quo.

United States v. Kimbrew, 2019 WL 6693744 (9th Cir. Dec. 9, 2019), decision available here.

Players: Decision by Judge Nguyen, joined by Judge Miller and ED NY DJ Vitaliano.  

Facts: Michael Kimbrew worked as a field representative for a Congresswoman. Id. at *1. He met with owners of a marijuana dispensary, and implied he could protect them despite their lack of a permit. Id.

 The FBI got wind of this overture.

  An undercover FBI agent, posing as the owner of the marijuana shop, met with Kimbrew. Id. at *2. Kimbrew assured the undercover agent that he had substantial influence in the City of Compton, a close relationship with the City Attorney, and the ear of the Congressman. Id. Kimbrew solicited and received a $5,000 payment from the undercover agent. Id.

  Kimbrew was charged with bribery of a public official, in violation of 18 U.S.C. § 201(b)(2)(A). Id. He was convicted after a jury trial. Id.

Issue(s): “Michael Kimbrew appeals his conviction[ ]. . . for . . . bribery of a public official. . . . Kimbrew does not dispute that he took money in exchange for a promise that he made as a federal public official. He instead argues that he promised to do the impossible, so his conduct falls outside the purview of § 201 bribery.” Id. at *1. “Kimbrew . . . contends that the government failed to prove that he could ‘make good’ on his promises, and therefore he did not commit an ‘official act’ within the meaning of the bribery statute.” Id. at *3.

Held: “We are not persuaded, and we affirm.” Id. at *1. “Kimbrew’s argument is both factually and legally incorrect.” Id. at *3. “The evidence shows that Kimbrew and the City Attorney knew each other, and that both worked out of Compton City Hall. . . Although the City Attorney denied that Kimbrew had any influence over him, the jury also heard recorded conversations in which Kimbrew attested that he did in fact have such influence.” Id. at *3. “Similarly, the jury could have reasonably concluded that Kimbrew had a means of influencing the Congresswoman’s actions.” Id. at *4.

  “The statutory definition of ‘official act’ contains broad temporal language that indicates the question or matter at issue need not currently be pending or capable of being brought before a public official . . . This language encompasses scenarios in which a briber might anticipatorily seek to induce official action relevant to a circumstance yet-to-come.” Id. at *4. “[ ][T]he prosecution was not required to prove that Kimbrew could achieve the outcome he promised. The relevant inquiry, instead, is whether Kimbrew agreed to use his official position to exert pressure on another official to perform an ‘official act,’ or to advise another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official. . . . Nowhere in the statute or in the governing case law is there a requirement that the bribe recipient be able to succeed in exerting that pressure or persuading through his advice to realize the desired result.” Id. (internal citations and quotations omitted).  

Of Note: Quid pro quo. 

  Even an unsuccessful quo, or one tied to a contingency, is a federal bribe if the quid is proposed by a government official. Id. at *4. As Judge Nguyen explains, “a bribe tied to a contingency is no less a bribe.” Id. 

  Timely insight from the Ninth Circuit, into the federal bribery statute.

How to Use: Judge Nguyen warns that the “reach of § 201 is not unlimited.” Id. at *5. There must be nexus between the official’s position, and the quo he promises. Id. If the quos are more attenuated than those in Kimbrew, a defense to the federal bribery statue may be available.

                                               

For Further Reading: Last week the Senate confirmed the ninth and tenth Trump appointees, for the Ninth Circuit.

The Hon. Judge Bumatay (L), and the Hon. Judge VanDyke (R)

For an interesting overview of the historical context of these appointments, see “The changing makeup of the ‘nutty’ 9th Circuit,” available here. 

Image of “Quid pro Quo” from http://secureservercdn.net/166.62.109.86/thq.cd2.myftpupload.com/wp-content/uploads/2019/11/Quid-Pro-Quo-Blog-1068x610.jpg  

Images of the Hon. Judges Patrick Bumatay and Lawrence VanDyke from https://www.law.com/therecorder/2019/11/21/senate-judiciary-moves-ninth-circuit-nominations-forward-in-party-line-vote/

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

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Case o' Week: Sold on Sellers -- Sellers and Discovery on Selective Enforcement Claims

Carl Gunns for Nguyen win.  

United States v. Sellers, 2018 WL 4956959 (9th Cir. Oct. 15, 2018), decision available here.

Players: Majority decision and concurrence by Judge Nguyen. 

The Honorable Judge Nguyen

  DJ Simon, concurring.
  Dissent by Judge Graber, drawn by lot to replace Judge Reinhardt. 
  (Judge Reinhardt, concurring in spirit, with the opinion and Judge Nguyen's terrific concurrence).

  Tremendous victory for former C.D. Cal. AFPD, now stalwart CJA counsel, Carl Gunn.  

Facts: Sellers, who is black, was arrested in an ATF stash house sting put together by ATF Agent John Carr, and was charged in federal court. Id. at *1-*2.

  Sellers sought discovery based on a claim of selective enforcement. Id. at *2. Sellers showed that 39 of 51 CD Cal defendants charged in reverse sting prosecutions were black or Hispanic. Id. 

ATF Agent John Carr

  ATF Agent John Carr testified that 55 of the 60 defendants indicted in his stash house efforts were people of color. Id.

  The court denied the discovery motion, based on the Supreme Court’s 1996 Armstrong decision. Id.  

   Sellers was convicted after a jury trial, and appealed.

Issue(s): “Sellers argues that he was targeted based on his race, and presents evidence that an overwhelming majority of the defendants targeted by law enforcement in similar investigations are African-Americans or Hispanics. To succeed on his selective enforcement claim, Sellers must show that the enforcement had a discriminatory effect and was motivated by a discriminatory purpose. He is unlikely to meet this demanding standard without information that only the government has. Sellers can obtain this information through discovery if he makes a threshold showing. We must decide what that showing is.” Id. at *1.

  “The question we face is whether Armstrong’s standard is equally applicable to claims for selective enforcement, particularly in the stash house reverse-sting context.” Id. at *3.

Held: “We hold that in these stash house reverse-sting cases, claims of selective enforcement are governed by a less rigorous standard than that applied to claims of selective prosecution under . . . Armstrong.” Id.

  “Today we . . . hold that Armstrong’s rigorous discovery standard for selective prosecution cases does not apply strictly to discovery requests in selective enforcement claims like Sellers’s. Contrary to Armstrong’s requirements for selective prosecution claims, a defendant need not proffer evidence that similarly-situated individuals of a different race were not investigated or arrested to receive discovery on his selective enforcement claim in a stash house reverse-sting operation case. While a defendant must have something more than mere speculation to be entitled to discovery, what that something looks like will vary from case to case. The district court should use its discretion . . . to allow limited or broad discovery based on the reliability and strength of the defendant’s showing.” Id. at *6 (emphases in original). Id. at *6,

Of Note: The Sellers opinion is a lovely piece of legal writing by Judge Nguyen. It is a careful and measured analysis that methodically works through the difference between selective enforcement and selective prosecution, and that hews closely to previous discovery decisions in the Third and Seventh Circuits. Id. at *6.

  In her concurrence, however, Judge Nguyen cuts loose. 

  Unleashing a barrage of stats, in her concurrence Judge Nguyen explains exactly how fake stash house schemes target people of color – and ultimately have little impact on real crime rates. Id. at *10. She “question[s] whether conducting stash house operations almost exclusively in neighborhoods known to be black and Hispanic, and excluding neighborhoods known to be white, is in fact a ‘facially neutral’ policy.” Id. at *11.

   If you’ve ever defended a client against these inane and unfair stash house prosecutions, this concurrence is a must-read.

How to Use: The Feds of NorCal rage for RICO, and are dying for death. What percentage of our tsunami of RICO and capital defendants are people of color? 95%? Higher?

  It is time for beloved data nerds to run some RICO regression models, and for capital counsel to shake loose some Sellers discovery from ATF, the FBI, Homeland Security, and local law enforcement.  

                                               

For Further Reading: Sellers confirms what we knew: the Honorable District Judge Edward Chen got it right. In 2017, Judge Chen ordered a broad swath of discovery on the ND Cal FPD’s selective enforcement claim in the notorious San Francisco “Safe Schools” prosecution. See “For Further Reading” at blog entry, here. 

The Honorable Judge Edward Chen

   The ND Cal United States Attorney's Office dismissed those "Safe Schools" indictments, rather than complying with Judge Chen’s remarkable discovery order. While these dismissals were welcome victories for our clients, the win left unaddressed many serious questions about this profoundly misguided prosecution.

   We’ll now get answers.

  The ACLU has recently filed a civil lawsuit on behalf of these Safe Schools defendants. See ACLU press release here. 

   Notably, the ACLU’s Cross suit was recently related back to the Mumphrey litigation (the original Safe Schools criminal case). See CV 18-06097 EMC (N.D. Cal. Oct. 16, 2018), Dkt. #22, Ord. relating case.

  This means that the whole "Safe Schools" mishigaas is now right back where it belongs: before Judge Chen. 

Image of the Honorable Judge Nguyen from https://www.scpr.org/news/2011/12/01/30139/key-senate-committee-approves-la-judge-ninth-circu/ 

Image of “Stash House” from http://lovewheels.site/stash-house/

Image of ATF Agent Carl Gunn from http://www.agingrebel.com/wp-content/uploads/2014/06/John-Carr1.jpg

Image of the Honorable Judge Edward Chen from https://www.law.com/therecorder/almID/1202766928888/how-judge-chen-put-himself-on-the-wrong-side-of-the-ninth-circuit-in-uber-case/

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

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Case o' The Week: Ninth Tuts Hut Scuttlebutt - Wells and FRE 404(b) Evidence

What happens on Attu, stays on Attu . . .

United States v. James Michael Wells, 2017 WL 6459199 (9th Cir. Dec. 19, 2017), decision available here.

Attu Island, Alaska

Ed. note: A slow week for decisions is a good opportunity to revisit the Ninth's recent Wells decision, for its analysis of FRE 404(b). 

Players: Decision by visiting DJ Walter, joined by Judges Tashima and Nguyen. Concurrence by Judge Nguyen. Partial concurrence and dissent by Judge Tashima. 

  Impressive victory for former CD Cal AFPD Davina Chen.

Facts: Wells worked at an Alaskan Coast Guard facility on Kodiak Island. Id. at *2. In April 2012, two of Wells’ co-workers were found, murdered, at the facility.

  On the morning of the murders, Wells had left voicemails on the victims’ phones, explaining he’d had tire problems. Id. Surveillance footage, a history of workplace disputes, and suspicions about the damaged tire and alibi eventually lead to Wells’ indictment for the murders.

  At trial, the government introduced testimony that Wells had disobeyed a direct order from a supervisor in 2003, and had hauled back a fiberglass hut that was having problems, from Attu, a remote island on the Aleutian Chain. Id. at *20.

  The government argued that this 2003 “hut” episode was the best example of Wells’ “narcissistic traits” and was “the height of ego” – consistent with personality-profile testimony the government’s “expert” had offered. Id. The court found this “hut” episode was “inextricably intertwined” with the charged events, “relevant to motive,” and “help paint a picture of the work environment.” Id.

  Wells was convicted.

Issue(s): “Wells challenges a significant amount of testimony as impermissible character and other act evidence, under Federal Rules of Evidence 404(a) and 404(b), respectively. . . .” Id. at *17.

Held: “For the reasons that follow, we find that the district court erred in admitting the 2003 incident, as it was neither inextricably intertwined nor permissible motive evidence under Rule 404(b)(2).” Id. at *20.

  “[United States v.] Dorsey, [677 F.3d 944 (9th Cir. 2012)], illuminates the difference between finding that evidence is inextricably intertwined, and therefore not subject to Rule 404(b) analysis, and finding that evidence falls under one of Rule 404(b)’s permissible uses, namely to prove motive. In determining whether particular evidence is necessary to the prosecution's “coherent and comprehensible story,” we ask whether the evidence bears directly on the charged crime. 677 F.3d at 952 (internal quotation marks omitted). “There must be a sufficient contextual or substantive connection between the proffered evidence and the alleged crime to justify exempting the evidence from the strictures of Rule 404(b).” . . . Here, none of the other acts evidence bears ‘directly’ on the charged crimes, or has the requisite “contextual or substantive connection” to be categorized as inextricably intertwined. It was error for the district court to admit it as such . . . (second citation omitted).” Id. at *21.

Of Note: As noted in an earlier COTW, this is a dense decision with many valuable nuggets to mine. Not discussed here is another great holding, finding a government shrink’s testimony about Wells’ personality “profile” was erroneous. Id. at *16. That expert error, combined with this FRE 404(b) error, earned a reversal on a double-homicide conviction.

  An important decision well worth a close read, on many fronts.

How to Use: Wells is a welcome limitation on that dangerously mushy “inextricably intertwined” FRE 404(b) theory used to smuggle in a defendant’s prior bad acts.

  The decision also rejects the government’s reliance on this workplace dispute to show Wells’ motive (another 404(b) theory of admission). There was “no logical basis,” the Ninth observes, to explain how a beef with a different supervisor, bearing no relation to either victim, from a decade before the murders, showed Wells’ intent for these homicides. Id. at *21. Instead, the government’s “motive theory was couched in the broadest possible terms in order to sidestep evidentiary hurdles.” Id.

  Turn to the great language in Wells to fight the government’s inevitable blunderbuss barrage of FRE 404(b) theories.

For Further Reading: Ten Ninth judges appointed by Democrats (out of 29 authorized judgeships), are currently eligible for senior status.

  For a fascinating (albeit slightly right-leaning) analysis of President Trump’s potential impact on the Ninth (and other federal courts of appeal), see the National Review article here. 

Image of Attu Island from https://i.pinimg.com/originals/f4/9d/4c/f49d4cd05431305559d319fb26d8d45a.jpg

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

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Case o' The Week: "Tend to Your own Knitting," Ninth Warns Gov't - Wells and CJA Appointments

“As Justice Louis D. Brandeis warned many years ago: ‘The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.’ Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). 

  After all, United States prosecutors are bound to appear in the name of Justice. We are of the opinion that the Government overstepped its bounds early in the pretrial process and continued to overreach during trial. The Government's actions, unchecked by the district court at critical points, so tipped the scales of justice as to render Wells' trial fundamentally unfair. Therefore, we reverse and remand for a new trial.”

  United States v. James Michael Wells, 2017 WL 6459199 (9th Cir. Dec. 19, 2017), decision available here.

Players: Decision by visiting DJ Walter, joined by Judges Tashima and Nguyen. Concurrence by Judge Nguyen. Partial concurrence and partial dissent by Judge Tashima. Big win for former CD Cal AFPD Davina Chen (the case was reversed on grounds not reported here).

Facts: Wells was charged with death-eligible homicide counts. Id. at *3.

  Federal Defender Rich Curtner was appointed to represent Wells, and second CJA counsel was appointed under 18 USC § 3006A. Id. The government challenged the ex parte nature of the CJA appointment. Id.

  The government proceeded on the case with three attorneys.

  After the government confirmed it would not be seeking death, it moved to have the second CJA counsel removed. Id. FPD Curtner fought the motion, explaining he was managing an office in financial crisis because of sequestration, that another AFPD was not available to try the case, that CJA counsel had a relationship with the client and a deep understanding of discovery, and that if CJA counsel was removed it would be three government prosecutors against one public defender. Id.

  Despite FPD Curtner’s objections, the magistrate judge granted the government’s motion, CJA counsel was removed, and Wells was convicted after trial. Id. at *4.

Issue(s): “[ ] Wells challenges the district court’s removal of his second court-appointed attorney following the Government’s decision not to seek the death penalty.” Id. at *4.

Held: “Applying [a] deferential standard, we do not find that the removal of [CJA counsel] was reversible error, but neither can we accept without comment the Government’s interference in the status of Wells’ representation.” Id. at *5.

  “[W]e find no indication that the magistrate judge considered the candid statements of FPD Curtner, advising of the crippling effects of the unprecedented fiscal crisis as it related to his ability to serve as Wells’ sole counsel.” Id. at *6.

  “[O]f much greater concern to this Court, is the means by which the question of [CJA counsel’s] continued appointment was placed before the magistrate judge. After contesting the initial dual appointment, the Government again placed itself in an ethically compromised position by challenging the continuation of [CJA counsel’s] appointment once the death penalty was eliminated. This strikes the Court as highly unusual. Indeed, it constitutes two improper insertions by the prosecution into a matter exclusively within the province of the judiciary. While such a motion would be disfavored in any setting, it is particularly so where a successful challenge would leave a uniquely beleaguered FPD battling against the unlimited resources of the Government, on behalf of a client whose liberty is at stake. . . .

   The Government's decision to insert itself into the important determination of Wells’ fair representation carries with it a reproachable air of stacking the deck, for which we cannot offer tacit acceptance.” Id. at *6 (citations omitted) (emphasis added).

Of Note: What role should the government play in the question of CJA representation?

  The Ninth is unequivocal: “[I]n the future, the Government should tend to its own knitting.” Id. at *7.

  Wells is a seminal case on the need for independent and realistic assessment of the need for CJA counsel --and the USAO is to play no role in this assessment.

  Wells also calls out the injustice of the resource imbalances facing CJA counsel, calling out the “stacked deck” orchestrated by the government.

  A must-read for FPD and CJA counsel (and, as Judge Ngyuen warns, an opinion that DOJ should mull deeply). Id. at *29.

How to Use: When Death departs, so does Learned Counsel, right?

  Maybe not.

  The Ninth provides a sympathetic discussion of the procedure by which second CJA counsel can stay in a (former) capital case. Id. at *5. 

  RICO-wrestling CJA counsel should give this primer a very close read: seconds should stay, in some cases.

               

                         

For Further Reading: The homicides on this remote Alaskan island have a vaguely Fargo-esque quality. 

  For an article describing the work feud that (allegedly) triggered the murders, see the article here. 

Image of men knitting from https://here-is.com/kentishtowner/wp-content/uploads/sites/13/2015/01/knittingmen.jpg

Image of James Wells from http://wirelessestimator.com/articles/2016/wives-of-murdered-tower-techs-sue-the-coast-guard-for-wrongful-death/ 

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

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Case o' The Week: Ninth, Conflicted - Walter-Eze and "Actual" Conflicts of Interest

Actual conflict = actual presumed prejudice?

Actually, not this time.  

United States v. Sylvia Ogbenyeanu Walter-Eze, 2017 WL 3648511 (9th Cir. Aug. 25, 2017), decision available here.

Players: Decision by visiting D NY DJ Amon, joined by CJ Thomas. Concurrence (only in judgement) by Judge Nguyen.

Facts: Walter-Eze was charged with health care fraud. Id. at *2. Court-appointed counsel received three trial continuances. Id.

  Two weeks before trial, retained counsel appeared. Id. The district court allowed the substitution after receiving commitments to proceed on an agreed-upon trial date. Id. Nonetheless, on the first day of trial, counsel filed an emergency motion to continue, explaining they were not prepared. Id. at *3.

   The court agreed to continue if counsel agreed to pay witness and jury fees. Id. Defense counsel worried that this might get reported to the California State Bar, so agreed to proceed to trial. Id.

   On appeal, Walter-Eze chronicled defense counsel’s failure to review government exhibits, failure to prepare jury instructions, complete a PowerPoint presentation in time for closing, failure to secure attendance of defense witnesses, or give the government a timely list of witnesses or experts. Id. at *10.

  Walter-Eze was convicted and sentenced to ninety-seven months. Id.

Issue(s): “Walter-Eze raises challenges to her conviction . . . [on the ground that] a conflict of interest created by the district court when it conditioned an adjournment on counsel’s paying jury costs and witness fees violated her Sixth Amendment right to counsel.” Id. at *2.

Held: “[F]or the purposes of Sullivan’s presumption of prejudice, we hold that under the circumstances present here, both the threat of fees and the threat of potential sanctions created a conflict of interest that adversely affected counsel’s performance.” Id. at *6.

  “In this case, the conflict was concretely manifest in real time, as Darden was called upon to choose between being fined and potentially facing a bar investigation or going to trial even though he and his co-counsel repeatedly indicated on the record that they were unprepared. For this reason, the government is wrong to assert that Darden was faced with only a ‘possible’ conflict. In fact, the existence and impact of the conflict could not have been clearer.” Id. at *7.

  “[U]nder the facts of this case, Walter-Eze must show that she was prejudiced by this actual conflict, and because she is unable to do so, we do not disturb the verdict.” Id. at *8.

Of Note: In the 1980 Sullivan decision, the Supreme Court presumed prejudice when defense counsel had an actual conflict – thereby avoiding the prejudice requirements of “normal” Strickland challenges. The real issue in Walter-Eze is whether the Ninth will presume prejudice after it finds an “actual conflict” on these particular facts.

  In an important (albeit confusing) holding, DJ Amon relies on the 2002 Mickens Supreme Court decision and concludes that – despite a clear finding of an “actual conflict” – prejudice will not be presumed in this case. Id. at *5.

  Judge Nguyen doesn’t understand this analysis: in her concurrence, she questions how the majority finds an actual conflict that does not trigger the presumption of prejudice. Id. at *18.

  Practically speaking, the Walter-Eze decision may effectively limit “presumed prejudice” to cases where defense counsel represents multiple clients in the same case. However, as Judge Nguyen complains, this outcome is a fact-entangled “rule” that seems ripe for further exploration.

How to Use: Whatever its shortcomings, Walter-Eze is an exhaustive discussion of conflicts. Id. at *5 -*7. Conflicts are a fuzzy field – at a minimum, the opinion is a helpful compilation of authority.

                                        

For Further Reading: Can you avoid a Ninth Circuit decision, just because mandate has been stayed? No – and neither can judges. As the Ninth just concluded, “Notwithstanding this high threshold, petitioners have demonstrated that the judges within the District of Arizona who found that Sanchez-Gomez was not binding on them committed clear error.” See Ord. here. 

  A remarkable win in the righteous shackling saga – congrats to D. Az. AFPD Dan Kaplan.

Image of “Conflict of Interest” from http://freedomradio91.com/wp-content/uploads/2016/05/Article-Conflict-of-Interest.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website available here.

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Case o' The Week: Ninth Endorses Defenders' Lack of Restraint(s) - Blanket shackling policies for non-jury proceedings

  How do you feel about full five-point restraints on detained defendants, regardless of individualized danger, for almost all non-jury appearances?

  The Federal Defenders of San Diego, Inc. feel the same way.

  Fortunately, so does the Ninth.

United States v. Sanchez-Gomez, 2015 WL 5010701 (9th Cir. Aug. 25, 2015), decision available here.

Players: Decision by Judge Schroeder, joined by Judge Nguyen and DJ Zouhary. Big victory for Executive Director Reuben Cahn, and AFD’s Sherleen Charlick and Ellis Johnston III, Federal Defenders of San Diego, Inc.

Facts: The U.S. Marshal for the S.D. of California wrote to the Chief Judge in 2013, asking for a policy of full restraints on defendants. Full or “five point” restraints are leg shackles and handcuffs attached to a belly band. Id. at *1. The Court deferred to the Marshal and permitted five-point restraints for all non-jury proceedings except guilty pleas, sentencing hearings, and at the request of an individual district judge. Id. The justification given for the policy was the higher volume of defendants in the district, an apparent increase in violence among pretrial detainees, and limits on Marshal staffing. Id. The Federal Defenders challenged the policy on behalf of three inmates (though none were detained by the time the appeal got to the Ninth). Id.

Issue(s): “We agree that a policy that permits routine use of shackles is not ‘forbidden’ in non-jury proceedings under the . . . Due Process Clause; it does not follow, however, that under our precedent shackles may always be used routinely before a judge without any justification or showing of necessity. We have ruled that such a generalized shackling policy must rest on an ‘adequate justification of its necessity.’ Howard, 480 F.3d at 1008. We therefore consider whether the Southern District’s policy meets that standard.”

Held: “In Howard we considered a policy authorizing use of leg shackles during appearances before a magistrate judge in the Roybal Courthouse in Los Angeles. We did not reach the question of whether due process requires an individualized determination in a jury proceeding, because we were dealing with non-jury proceedings. We did recognize that the adoption of a general shackling policy in a nonjury setting must be justified. After examining both the extent of the policy and the asserted need for the policy, we held that the policy was adopted ‘with an adequate justification of its necessity.’ Id. at 1008. The government contends that Howard authorizes the general policy at issue here, a policy of using full restraints during most appearances before a judge. Howard does not do that. This policy is more restrictive of defendants’ movement, applies more broadly, and was adopted with less judicial consideration of its justification than the policy in Howard.” Id. at *2-*4. 

“We do not suggest that judges are necessarily required to document the need for a shackling policy in any particular manner, as for example, with statistics or the infeasibility of less restrictive alternatives. We hold only that in this case, judges should have provided greater justification for adopting such a policy.” Id. at *4. We therefore hold that a full restraint policy ought to be justified by a commensurate need. It cannot rest primarily on the economic strain of the jailer to provide adequate safeguards.” Id.

Of Note: These appellants were no longer detained. Why not moot? Because the harm “is likely to be repeated yet will not last long enough to be judicially reviewed; thus, the exception to the mootness doctrine for cases that are ‘capable of repetition but evading review’ applies. Id. *1.

How to Use: Great win for SoCal. Does this same close analysis apply to shackling of an individual client at the Marshal’s request? Maybe not so much. Take a close look at Judge Schroeder’s discussion of the Second Circuit’s Zuber decision. Id. at *4. Dicta, arguably, but that passage likely signals the (different) analysis for individual shackling decisions.

                                               

For Further Reading: Do Ninth Circuit decisions control in the Southern District? Presumably, but “[f]or now, a marshals official said the policy will continue as is.” For an article on this San Diego policy, the Ninth’s decision, and the potentially surprising aftermath, see article here. 

Image of restraints from http://www.galls.com/photos/styles/RS130_500_2.JPG

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