Case o' The Week: Ninth Cries Fowl(er) on Nexus-less Obstruction - Federal Nexus for witness tampering and obstruction

 How light is the government's burden? The Feds had to prove a nexus that is "more than remote, outlandish, or simply hypothetical." 

  (And they still managed to come up short!)

 United States v. Christopher Johnson, 2017 WL 4974579 (9th Cir. Nov. 2, 2017), decision available here.

Players: Decision by Judge Paez, joined by Judges Berzon and Christen.

Facts: Johnson was a (county) jail deputy. Id. When an inmate used an emergency intercom inappropriately, Johnson and another deputy, Kirsch, responded. The confrontation ended with a violent attack on the inmate. Id.  Johnson wrote several reports about the incident that day. Id.

  Johnson and Kirsch were federally indicted for assault, and Johnson also charged with obstruction under 18 USC § 1512(b)(3). Id. at *2. That statute criminalizes hindering the investigation of a judge or officer of the United States. Id. (quoting Section 1512(b)(3)) (emphasis in opinion).

  The first trial ended in a mistrial: the deputies were acquitted of assault in the second trial. Id. Johnson, however, was convicted of obstruction. Id. In his Rule 29 and new trial motions Johnson argued that Fowler v. United States, 563 U.S. 668 (2011) required proof of a reasonable likelihood that his actions hindered communications to an officer of the United States. Those motions were denied.

Issue(s): “On appeal, Johnson argues that the Government failed to present sufficient evidence of a federal nexus for the alleged offense.” Id. at *1.

Held: “Reviewing de novo and applying the federal nexus standard established in Fowler v. United States, we agree. More precisely, we hold that there was insufficient evidence for any rational juror to find that it was reasonably likely that Johnson’s reports would have reached federal officers. We therefore reverse the district court’s denial of Johnson’s motion for a judgement of acquittal under Federal Rule of Criminal Procedure 29.” Id. at *1.

Of Note: In a decision of first impression, Judge Paez holds that the holding of Fowler, decided in the context of § 1512(a)(1)(c), applies with equal force to a different subsection of the statute: § 1512(b)(3). In so doing, the Court gives a bit of a smack down to the government’s protests, characterizing the government’s argument as “a distinction without a difference,” and an argument that would “make Fowler a nullity.” The Court accordingly declined the government’s invitation “to read Fowler in this nonsensical way.” Id. at *3.

  The punchline? Both of these subsections of the federal obstruction statute now require “a reasonable likelihood that [the obstructive] communication would reach a federal officer.” Id.

How to Use: What exactly is “reasonable likelihood” proof of nexus that is required in a criminal trial? Judge Paez mulls this conundrum in Johnson. It ain’t beyond a reasonable doubt – indeed, the government doesn’t have to even prove “more likely than not.” Id. at *4. The government, however, must “demonstrate that the likelihood was ‘more than remote, outlandish, or simply hypothetical.’” Id. (citing Fowler, 563 U.S. at 678).

  The Second and Fourth Circuits have built on a Third Circuit test, and require “additional appropriate evidence” (whatever that is) to satisfy Fowler’s “reasonable probability” test. Id. at *4.

  In Johnson, Judge Paez dodges the final question of whether (or what) “additional appropriate evidence” is a proof requirement – under any analysis, there was insufficient proof of a nexus here for conviction. Id. at *4-*5. The precise jury instructions required for the federal nexus component of this offense remain a fight for another day in the Ninth. If facing these charges, push the boundaries for the highest standard of proof you can muster. Johnson has a very thoughtful discussion of three circuits’ treatment of this issue at *4: start the battle with this Johnson’s helpful review of the current state of the law.

                                               

For Further Reading: The author of Johnson, the Honorable Judge Richard

The Hon. Judge Richard Paez

Paez, waited 1,506 days from his nomination by President Clinton until his confirmation in the senate: over four years. See article here. At the time, Judge Paez held the record for the longest Senate wait for federal robes.

 Things have changed.

  Last week, four Circuit judges were confirmed in just one week (with a DJ thrown in for good measure). See article here . The speed and volume of Senate confirmations last week came close to setting new records.

  Early suspicions are being, well, confirmed: the venerable Senatorial blue slip (or lack thereof) is becoming less of a factor in the pace of a judicial confirmation. See generally here; see also Memorandum of the Honorable Senator Feinstein of September 25, 2017, available here.

  As for the Ninth?  There is one nominee thus far, in Oregon, to replace Judge O’Scannlain. See judicial nomination report here; and press release here . 

   Three additional spots remain open in the Circuit: the seats of the Honorable Judges Harry Pregerson, Barry Silverman, and Richard Clifton. See United States Courts, Current Judicial Vacancies, available here.  

Image of “Obstruction of Justice” from https://www.criminal-lawyer-colorado.com/wp-content/uploads/Colorado-Crimes-Obstruction-of-Justice-18-8-102.jpg.

Image of a blue slip by US Congress - http://prologue.blogs.archives.gov/2014/08/03/the-origins-of-senatorial-courtesy/, Public Domain, https://commons.wikimedia.org/w/index.php?curid=47599642

Image of the Honorable Judge Richard Pez from https://votesmart.org/candidate/biography/119794/richard-paez#.Wf-cXGhSy70

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

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Case o' The Week: "Crazy" Clamor, Obstruction Hammer - Obstruction of Justice, Malingering, and Competency Evals

 Ninth naysays "obstruction" bee in our sentencing bonnet. 

United States v. Bonnett, 2017 WL 4509039 (9th Cir. Oct. 10, 2017), decision available here.

Players: Pur curiam decision by Judges Schroeder, Tallman and DJ Whaley.

Facts: Bonnett was charged with one count of receipt and distribution of child porn. Id. at *1. He was made to undergo a court-ordered pysch eval for competency. Id. The shrink concluded that “Bonnett was feigning incompetency.” Id. After his guilty plea, Bonnett received an increase in his guideline sentence for “obstruction of justice,” based on “malingering.” Id.

Issue(s): “[Bonnett] challenges the two-level adjustment for obstruction of justice pursuant to U.S.S.G. § 3C1.1 . . . .” Id. at *1. “The issue of first impression in this Circuit is whether an obstruction of justice enhancement may be founded upon a finding of malingering.” Id. “[ ] Bonnett contends that permitting an obstruction of justice enhancement on the basis of his performance in a competency evaluation chills his exercise of the right to obtain a competency hearing.” Id.

Held: “We join other Circuits in holding that malingering may support an obstruction of justice enhancement pursuant to U.S.S.G § 3C1.1.” Id. at *2.

Of Note: While disappointing, this outcome is not terribly surprising. Four other circuits have upheld obstruction enhancements in the context of competency evaluations. Id. at *1. More importantly, the Ninth had already held that refusing to participate in a competency evaluation can support an obstruction enhancement. Id. at *2 (citing United States v. Fontenot,14 F.3d 1364, 1372 (9th Cir. 1994)).

  Nonetheless, despite the Ninth’s brief per curiam resolution of this thoroughly hairy issue, the confluence of competency and obstruction raises thorny problems for both defense counsel and shrinks (see below).

How to Use: First, us. Should defense counsel now balk on competency motions, when the possibility of a malingering finding may trigger an obstruction enhancement? The federal competency statute only suggests that defense counsel may make a motion “to determine the mental competency of the defendant.” 18 U.S.C. § 4241(a).

  Admittedly, there are those awkward questions to defense counsel about a defendant’s competency during a Rule 11 plea competency (not to mention the uncomfortable ethical issues arising from pleading out a potentially crazy client). 

  At minimum, if you worry that your client has a Klinger routine going, have a frank talk about Bonnett and the obstruction enhancement (and consider a private defense mental health eval before Court shrinks build that obstruction foundation for the PSR).

                                               

For Further Reading: Second, shrinks. Psychologists and psychiatrists assure our clients that competency evals are protected, and that their talks and tests are just used to determine their ability to understand the charges and assist counsel.

  That now ain’t true – creating a real ethical quandary for mental health professionals.

  For an interesting fret on this ethical dilemma, see Shaheen Darani, Behavior of the Defendant in a Competency-to-Stand-Trial Evaluation Becomes an Issue in Sentencing, Journal of the American Academy of Psychiatry and the Law Online, January 2006, 34(1), 126-128, available here. (“Based on this ruling, is it necessary to inform the defendant that information gathered as part of the evaluation may be used for purposes outside of the competency evaluation? Would it also follow that the defendant should be advised that uncooperativeness or feigning of symptoms could lead to a finding of obstruction of justice and, therefore, a harsher sentence? The challenge in adopting this warning becomes the determination of the level of uncooperativeness that might rise to the level of obstruction of justice.”)

Image of bee in the bonnet from https://ashleeblucas.files.wordpress.com/2012/11/bee-in-your-bonnet.jpg.

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

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Case o' The Week: Of Non-Disclose and Oreos - Liew, Brady, and FBI 302 Rough Notes

  Remarkably, exculpatory statements were somehow omitted in an FBI 302 (and the agent’s rough notes were never disclosed).

  Happily, the government now gets a second bite at the Brady apple.

United States v. Liew, 2017 WL 1753269 (9th Cir. May 5, 2017), decision available here.

Players: Decision by Judge Owens, joined by Judges Schroeder and Wardlaw. Nice Brady win for ND Cal stalwart Dennis Riordan in this NorCal case.

Facts: DuPont perfected a lucrative and (it claimed) secret process to create a type of pigment used in everything from paint to the filling of Oreo cookies. Id. at *2.

 China wanted this tech.

  Walter Liew worked with Chinese representatives to start a pigment plant there. Id. at *3. Liew hired a former DuPoint employee, “Spitler,” as a consultant. Id. at *3.

  Liew and Spitler spoke, and in a note documenting their conversation they worried the plant might fail, “even with the best technology and stolen prints.” Id. at *4. Liew, however, later claimed Spitler told him that, as far as DuPont was concerned, “[a]fter 5 years, you are a free man.” Id.

  DuPoint disagreed.

  After learning of the planned Chinese pigment plant, DuPoint sued Liew in federal court. Id. In his civil answer, Liew stated he and his company never “’wrongfully obtained or possess[ed] any’ DuPoint trade secrets.” Id. at *5.

  Liew was later indicted, and charged with obstruction (for his answer in the civil suit), and with economic espionage charges. Id. at *5. Spitler struck an apparent cooperation deal with the government, then committed suicide. Id. at *6.

  Before trial, the government produced a FBI 302 of Spitler’s meetings with the prosecution team. [Ed. note: not in the opinion, but reported in district court briefing, is the fact that Spitler met with FBI Special Agent Kevin Phelan, and others on the prosecution team, six times.] The government did not produce the Special Agent’s rough notes of the Spitler interviews. Id.

  Liew was convicted at trial.

  The defense then produced a declaration from Spitler’s attorney. Id. at *7. Spitler’s attorney reported Spitler’s exculpatory statements omitted from the FBI 302, including his denial that he was involved in a criminal conspiracy. Spitler had also revealed to the government that, after his retirement, DuPont had shipped him a box of documents that Spitler sold to Liew. Because DuPont had voluntarily relinquished those documents, Spitler explained in interviews with the government that he considered them valueless. Id. at *7.

  The defense moved for disclosure of the rough notes of the Spitler interviews. That motion was summarily denied. Id.

Issue(s): “Liew argues that the district court erred by not requiring the prosecution to disclose the rough notes of the FBI’s interviews with deceased co-conspirator Tim Spitler.” Id. at *15.

Held: “While mere speculation about materials in the government’s files does not require a court to make the materials available for defense inspection . . . Liew had more than mere speculation -- he had the declaration of Spitler’s attorney . . . . In light of this declaration, defendants carried their initial burden of producing some evidence to support an inference that the government possessed or knew about material favorable to the defense and failed to disclose it. . . . 

  Although the errors and inconsistencies in the declaration provided by [Spitler’s attorney] cast some doubt on the declaration’s reliability, defendants’ burden was a low one, and the declaration sufficed to support an inference that the rough notes contained favorable material. Because the prosecution did not disclose the rough notes, it did not meet its burden of demonstrating that it satisfied its duty to disclose all favorable evidence known to it. Furthermore, if the rough notes referenced the statements that [Spitler’s attorney] averred Spitler made during the interviews, that material could be sufficient to undermine confidence in the verdict. . . . . 

  [W]e vacate the district court’s order denying defendants’ request for production of the rough notes and remand to the district court for in camera review of the material to determine whether disclosure of the notes might have affected the outcome of the trial.” Id. at *15 (internal citations and quotations omitted).

Of Note: Does your civil client deny wrongdoing when answering in federal court? Be careful: the ND Cal USAO may later indict them for obstruction of justice.

  Judge Owens, thankfully, comes out the right way on this troubling charging stretch, id. at *14, but Liew’s discussion on civil responses and obstruction of justice should be a required read for civil counsel.

How to Use: Is the standard of review for this claim the deferential “abuse of discretion” standard, or the less demanding de novo standard? 

  In an interesting note, Judge Owens explains that – here, in the context of a new trial motion - it is de novo. See id. at *8 n.6. A welcome footnote worth saving for appellate folks.

                                               

Former AUSA Kathryn Haun

For Further Reading: (Former) AUSA Kathryn Haun is one potential candidate for the next United States Attorney for the Northern District of California. See article here. 

  Ms. Haun just gave a candid and revealing interview, defending Attorney General Sessions’ new policy on mandatory minimums. See KQED link here. 

Image of former AUSA Haun from https://static.wixstatic.com/media/bcd40f_342196e499f143a3954b3687110c5860~mv2.gif_srz_200_200_85_22_0.50_1.20_0.00_gif_srz 

Image of Oreo from https://i.ytimg.com/vi/STwpxAWAbrw/0.jpg

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

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Case o' The Week: Ninth binding on findings -- Herrera-Rivera and findings required for obstruction enhancements

There’s lies, damn lies, and statistics.

(But without specific findings, none of them merit an obstruction hit).

United States v. Herrera-Rivera, No. 15-50141 (9th Cir. Aug. 12, 2016), decision available here.

Hon. Judge Barry Silverman

Players: Decision by Judge Silverman, joined by Judge Tashima. Concurrence and partial dissent by Judge Graber.

Facts: Herrera-Rivera was on a bus stopped by the border patrol. Slip Op. at 4. Agents found an unclaimed backpack a few rows up from the back of the bus. Id. at 5. Inside was a kilo of meth, wrapped with electrical tape. Id. Herrera-Rivera, who had crossed the border that morning, was sitting a few rows behind the bag. Id. A consent search of Herrera-Rivera by the agents revealed “black marks on his stomach that they believed were residue from electrical tape.” Id. A search of cell phones on Herrera-Rivera produced texts that appeared to arrange a rendezvous and payment for his return trip. Id.

  Hererra-Rivera explained to the agents that a friend had given him the cell phone and $60, and told him to get on a bus to Calexico. Id. He said he thought there were drugs on the bus because his friend was involved in trafficking. Id.

  At trial, Herrera-Rivera testified he left Mexico because of marital problems, and was heading to Vegas to see his sister. Id. at 8. He explained that he was strip searched at the border (which agents later denied). Id. He testified that he did not know anything about the bag, and denied making incriminating statements to the agents. Id. He also testified the black marks on his stomach were from painting a fence the day he left home. Id.

  He was convicted.

  At sentencing the government moved for the guideline obstruction of justice enhancement under USSG § 3C1.1. Id. at 9-10. The district court mused, “I remember when he was testifying, thinking to myself that it was – to put it kindly, tenuous at best.” Id. at 10. The court applied the obstruction enhancement and imposed a sentence of ten years (about half of the (enhanced) guideline range). Id. at 10.

Issue(s): “Because Herrera-Rivera did not object to the district court’s findings on the obstruction of justice enhancement, we review these findings for plain error.” Id. at 10-11.

Held: “[W]e agree with Herrera-Rivera that the district court plainly erred by applying an obstruction of justice enhancement to his sentence without making the express findings required by United States v. Castro-Ponce, 770 F.3d 819 (9th Cir. 2014).” Id. at 4.

Of Note: This is a good defense win, because (as dissenting Judge Graber argues), this case was a little – well, sketchy -- for us on the obstruction enhancement. Herrera-Rivera’s testimony was impeached on several fronts. It was pretty clear that his testimony was on facts that were material. And with no objection in the district court, the sentence was being reviewed for plain error. The reversal thus boils down to the lack of specificity of the findings. As Judge Graber complains, “the practical effect of [the majority’s] holding is to require a remand in every case in which a district court applies the obstruction of justice enhancement but makes incomplete findings.” Id. at 22 (Graber, J., dissenting).

  Our client’s right to testify is an invaluable, but fragile, thing: Herrera-Rivera continues the Ninth’s very strict protections against casual bumps for invoking that right.

How to Use: Begrudging Johnson Section 2255 remands, the government has bickered over prejudice when our clients originally received below-guideline sentences. Herrera-Rivera (again) eviscerates that argument. In Herrera-Rivera, the client got a full decade below the enhanced guideline range: a fifty percent break. The government argued that the obstruction error didn’t affect Herrera-Rivera’s substantial rights. 

  “[W]e reject this contention,” rebuffs the Ninth. Id. at 17. 

  Add Hererra-Rivera to Molina-Martinez in our Johnson briefing: a sentence imposed under the wrong guidelines is, plainly put, wrong – remand and resentencing is the remedy.

                                       

For Further Reading: Bet you’ve been hitting Nate Silver’s blog for other reasons, lately. Next time you’re there, take a look at an interesting (terrifying) article on predictive sentencing based on odds of recidivism. See Risk Assessment article here.  )

  Minority Report, coming to a court near you.

Image of Judge Silverman from http://openjurist.org/sites/default/files/judges/Barry%20G.%20Silverman.jpg?1459383336

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

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