Case o' the Week: Overbreadth Done if you Stash A Gun -- King and Overbreadth in Search Warrants

Not a good sign of great things to come, when an opinion begins: 

Firearms seized in search of King's residence

“While searching Sheldon King's home pursuant to a warrant, Fresno police discovered a medley of firearms.”

United States v. Sheldon King, 985 F.3d 702 (9th Cir. Jan. 14, 2021) (emphasis added), decision available here.

Players: Decision by Judge Bumatay, joined by Judge Callahan and D.J. Presnell. 

Hard-fought appeal by former CD Cal (and Alaska!) AFPD Carlton Gunn.  

Facts: A man assaulted a woman, and threatened her with a silver and gold revolver. Id. at 706. In a jail call, the assailant asked the victim to get the “thing” (the gun) to “Dubs” – (aka, the defendant in this case, Sheldon King). King was a felon. Id. Cops got a search warrant for King’s residence, to search for any firearm. Id. The search turned up a “medley of firearms.” Id. He was charged with Section 922(g)(1), and his suppression motion was then denied. Id. King entered a conditional plea preserving an appeal on the suppression motion.  

Issue(s): “King now brings this appeal . . . challenging the validity of the search warrant. Specifically, he argues that the warrant was overbroad—that there was only probable cause for the silver and gold revolver, and no other firearms.” Id. at 707.

Held: “[W]e conclude that the warrant here did not violate the Fourth Amendment. In the affidavit, a police officer detailed his investigation, his training and experience, and his suspicion that King was a felon in possession. The affidavit noted that King had two prior felonies . . . . Despite this criminal history, the affidavit sets out that King took possession of the “large silver & gold revolver” of unknown caliber shortly after it was used in a violent domestic dispute. The officer also explained how he suspected that other weapons might be present at King’s residence since other “individuals [may] arrive at the scene of [the] search” and that, in his experience, “many of these individuals are found to be in possession of weapons.” Moreover, the officer explained that, as a felon, any firearm found in King's possession would constitute evidence of a felon-in-possession offense. The officer expressed his belief that King was in violation of the felon-in-possession statute. These facts, taken together, provided the judge with a substantial basis to authorize the broader search for “any firearm.” Id.

 Of Note: The Ninth assures us there was probable cause for any firearm based on an assertation: that King’s willingness to hold a gun for a friend made it likely that he would also have other guns. See id. at 709 (“We doubt that the domestic-abuse suspect would have given the firearm to someone completely inexperienced in possessing firearms, especially a firearm that was just used in a crime. It's fair to think that serving as an illicit depository of another person's firearm makes King's possession of other firearms likely.”)

We may question that logic, but the unfortunate principle probably holds after King: the “stash-it” guy is likely now subject to broader search warrants than just the specific [gun/ammo/drugs ] awkwardly referenced in a jail call.

How to Use: “Gunner” Carl Gunn found a problem with the Career Offender sentence imposed in this case, and took it up to the Ninth. Unfortunately, a sentencing appeal was not carved out in the conditional plea. Judge Bumatay enforces the plea agreement’s waiver of sentencing appeals (although it looks like this potential problem may have cost Mr. King six offense levels). Id. at 711.

The rules around federal sentencing feel like they are changing daily – take a close look at this discussion in King when weighing whether a plea agreement waiving an appeal is worth it.                                               

For Further Reading: In 2016, SFPD Officer Nicholas Buckley, Star # 528, was caught by AFPD Ellen Leonida when a (surprise) surveillance video contracted every relevant fact of his testimony. 

When District Judge Charles Breyer explained that he was “deeply saddened” by what he saw in this hearing, the federal case was promptly dismissed. See blog entry describing evidentiary hearing here. 

Unbelievably, Officer Buckley is now back on patrol in San Francisco. See San Francisco Examiner article here. 

  There is no more potent example of toothless police discipline in San Francisco, than Buckley back on the beat.  

 

 

 

Image of firearms seized from Mr. King’s house from https://www.fresnobee.com/news/local/crime/article224126235.html

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

 

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Case o' The Week: First on the First in the Ninth - Sineneng-Smith and First Amendment Overbreadth

“Anyone not paranoid in this world must be crazy. . . . 

  Speaking of paranoia, it's true that I do not know exactly who my enemies are. But that of course is exactly why I'm paranoid.” 

  ― Edward Abbey, Postcards from Ed: Dispatches and Salvos from an American Iconoclast

 

The Honorable Judge Wallace Tashima

“[W]e cannot take the government’s word for how it will enforce a broadly written statute . . . any would-be speaker who has thought twice about expressing her views on immigration was not being paranoid.” 

  United States v. Sineneng-Smith, 2018 WL 6314287, at *11 (9th Cir. Dec. 4, 2018), decision available here. 

Players: Important First Amendment decision by Judge Tashima, joined by Judges Berzon and Hurwitz.

  Huge win for, among many others, Chief Deputy FPD Stephen Sady and R&W Attorney Lisa Ma, D. Oregon FPD, and Carmen Smarandoiu, Appellate Chief, N.D. Cal FPD, for Amicus Curiae Federal Defender Organizations of the Ninth Circuit.  

Facts: Sineneng-Smith ran an immigration firm that assisted clients applying for “Labor Certifications” and green cards. Id. at *2. Retention agreements explained that the goal was to assist clients to “obtain permanent residence through Labor Certification.” Id. Unfortunately, that path to permanent residence ended, yet the retention agreements for these aliens continued for seven years. Id.

  Sineneng-Smith was charged with, among other things, 8 USC § 1324(a)(1)(A)(iv) and § 1324(a)(1)(B)(i): “encouraging or inducing an alien to reside in the country, knowing and in reckless disregard of the fact that such residence is in violation of the law.” Id.

  Her pretrial First Amendment motion to dismiss was denied, and she was convicted after trial. Id. After the case was first argued on appeal, the panel invited amici briefing. Id.

Issue(s): “Section 1324(a)(1)(A)(iv) (‘Subsection (iv)’) permits a felony prosecution of any person who ‘encourages or induces an alien to come to, enter, or reside in the United States’ if the encourager knew, or recklessly disregarded ‘the fact that such coming to, entry, or residence is or will be in violation of law.’ We must decide whether Subsection (iv) abridges constitutionally-protected speech. To answer this question, we must decide what ‘encourages or induces’ means.’” Id. at *1.

Held: “We do not think that any reasonable reading of the statute can exclude speech. To conclude otherwise, we would have to say that ‘encourage’ does not mean encourage, and that a person cannot ‘induce’ another with words. At the very least, it is clear that the statute potentially criminalizes the simple words – spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client – ‘I encourage you to stay here.’ The statute thus criminalizes a substantial amount of constitutionally-protected expression. The burden on First Amendment rights is intolerable when compared to the statute’s legitimate sweep. Therefore, we hold that Subsection (iv) is unconstitutionally overbroad in violation of the First Amendment.” Id. at *1.

Of Note: The government urged a “strained” interpretation of “encourages or induce” in a bid to save the statute. Id. at *8. Channeling Justice Scalia, Judge Tashima rejects the effort, and adopts a natural reading that would criminalize “encouraging statements” protected by the First Amendment. Id.

  Along the way, Judge Tashima relies on the great Stevens quote: ““[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” Id. at *11. 

  A terrific opinion (and an important moment of legal history), Sineneng-Smith merits a close read.   

How to Use: On appeal Sineneng-Smith raised a First Amendment challenge: the panel asked for amicus briefing on an overbreadth claim. The government pleaded for “plain error” review, arguing that the overbreadth claim was waived because it was not raised in the initial appeal. Id. at *3. Judge Tashima rejects the government’s scramble: “Because Sineneng-Smith has asserted a First Amendment claim throughout the litigation, her overbreadth challenge ‘is – at most – a new argument to support what has been a consistent claim.’” Id. at *3. 

  Use Sineneng-Smith to brush back on the government’s pervasive “plain error” pitches.

                                               

For Further Reading: As reported earlier, President Trump jumped the gun and erroneously lambasted the Ninth Circuit for an admirable asylum decision by NorCal District Judge Jon S. Tigar (prompting an unprecedented defense by Chief Justice Roberts). See “For Further Reading” available here. 

  The Ninth has now caught up with the tweets. A three judge panel (two Republican-appointed judges, and one Democrat-appointed judge) has unanimously denied the government’s motion for a stay of Judge Tigar’s decision. See article here. 

 (Although, as Chief Justice Roberts has explained, the party affiliation of a federal judge doesn't matter). 

Image of the Honorable Judge Wallace Tashima from https://www.youtube.com/watch?v=CGD3bmSKvS8

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

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Case o' The Week: Pic, Sixteen => Mand-Min, Fifteen: Laursen and the Child Porn Production statute.

 A picture is worth . . . 5,475 days.

United States v. Laursen, 2017 WL 460660 (9th Cir. Jan. 30, 2017), decision available here.

The Hon. Judge Johnnie B. Rawlinson

 Players: Decision by Judge Rawlinson, joined by Judge Callahan. Concurrence by Judge Hawkins.

Facts: Laursen, 45, had a consensual sexual relationship with a sixteen-year-old girl. Id. at *1. Laursen told police the girl was being prostituted (but did not reveal his relationship). Id. Police examination of the girl’s laptop revealed sexually explicit images of the girl and Laursen. Id. 
  Later, Laursen’s sister gave the police a camera that she found, that contained sexually explicate images of the girl. Id. 
  Laursen was charged with and convicted of production and possession of child porn. Id. at *2. The court rejected a jurisdictional challenge, where Laursen argued that the girl was “not a child” because under Washington law she was a young woman of legal consensual age. Id. at *4. 
  Laursen was sentenced to the mand-min fifteen years. Id.

Issue(s): “In this appeal we address whether taking consensual nude ‘selfies’ involving a forty-five-year-old man and a sixteen-year-old girl is sufficient to support a conviction for production and possession of child pornography.” Id. at *1 (footnote omitted).

Held: “We . . . specifically reject the argument made by . . . Laursen that the legality of his sexual relationship with a sixteen-year-old under Washington state law precluded prosecution under federal law.” Id. “[I]n the state of Washington, Laursen’s sexual relationship with [the girl] was legal but the production of pornography stemming from that relationship was not.” Id. at *6.

Of Note: How many seventeen-year olds routinely take consensual and sexual cell phone shots similar to those in Laursen – pics that here resulted in a fifteen year mand-min sentence? That sobering question is asked by Judge Hawkins in his persuasive concurrence.

  Judge Hawkins would adopt a narrower construction of the key term, “uses” in the child production statute. Id. at *8. He would hold that the term “uses,” as the statute references between the photographer and the minor, requires that the defendant must have “exerted some sort of improper influence on the minor for the purpose of producing the visual depiction of sexual conduct.” Id.

  Applying that narrowing definition here, Judge Hawkins would find that Laursen met that requirement: the big age difference between the couple, Laursen’s gift of drugs to the girl, moving her from motel room to motel room, and the girl’s history of abusive relationships were sufficient evidence of improper influence. Id. at *9.

  Judge Hawkins has the better argument: the very expansive definition of the word “uses” in the majority’s opinion means the only limitation on the high mand-min “production” statute is unfettered AUSA discretion.

  Romeo is lucky there were no iPhones in Verona. Amorous teens, beware.

How to Use: This brief opinion quickly mows through a bevy of constitutional and evidentiary challenges. Id. at *4-*8. One of the most concerning is the rejection to the overbreadth challenge. Id. at *6.

  It was undisputed that Laursen could legally have a full consensual sexual relationship with the sixteen-year old girl. Id. at *6. (“[I]ll-advised, but perfectly legal,” as Judge Hawkins observes.). Id. at *8. However, the instant Laursen encouraged the girl to take a consensual nude picture, he fell afoul of the federal “production” statute and bought himself a fifteen-year mandatory minimum sentence. Id. Notably, there is no evidence that Laursen distributed, transferred, or showed these private pictures to anyone outside of the relationship. Id at *8 (Hawkins, J., concurring).

  The result of Laursen is that consensual intercourse with a sixteen-year old is legal in Washington -- yet encouraging that same sixteen-year old to take a private nude picture converts the relationship into a fifteen-year mand-min federal crime.

  A troubling case that merits a close read for anyone defending child porn production charges.

                                               

For Further Reading: In 2016, the Obama administration started to shut down private federal prisons as prison populations shrank, and after a number of investigations revealed horrific conditions in the for-profit institutions. See article here.

  A.G. Sessions is reversing course. For an interesting -- and disturbing -- piece on the ramifications of the new A.G.’s policy shift, see Private Prisons: Here’s Why Sessions’ Memo Matters, available here.

Image of the Honorable Judge Johnnie B. Rawlinson from http://lasvegasnba.org/wp-content/uploads/2014/08/Judge-Rawlinson-square-image-300x300.jpg

Image of Romeo and Juliet from http://scalar.usc.edu/works/romeo-and-juliet-act-2-scene-2-through-the-years/media/RomeoandJuliet4.jpg

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

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