Case o' the Week: Defense verklempt with Fletcher and hemp - Categorical analysis and marijuana prior convictions

  When properly applied, hemp reduces inflammation, reduces levels of pain, and reduces guideline offense levels.

United States v. Bautista, 2020 WL 6865043 (9th Cir. Nov. 23, 2020), decision available here.

 Players: Decision by Judge Fletcher, joined by Judges Schroeder and Hunsaker. Big, big win for Az. AFPD J. Ryan Moore, D. Arizona FPD.  

 Facts: Bautista was convicted in 2017 for the Arizona offense of “Attempted Unlawful Transportation of Marijuana for Sale.” Id. at *1. 

  A couple of years later Bautista was convicted in federal court of being a felon in possession of ammo. He was sentenced in 2019. The PSR bumped his offense level up for a previous “controlled substance offense” conviction (as defined in USSG § 4B1.2). See id. at *2. Id. (He did not object to this enhancement in the district court). 

  On appeal, Bautista challenged the sentence.

 Issue(s): “[ ] Bautista appeals a sentence imposed following his conviction of possession of ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Bautista contends that the district court erred in applying a recidivist sentencing enhancement based on his prior state conviction for attempted transportation of marijuana . . . . He contends that it was not a conviction for a ‘controlled substance offense’ under § 4B1.2(b) of the U.S. Sentencing Guidelines . . . . The Arizona statute under which Bautista was convicted included hemp in its definition of marijuana. However, in 2018, before Bautista's federal conviction, Congress amended the Controlled Substances Act to exclude hemp from its definition of a controlled substance. Thus, in 2019, when Bautista was sentenced in this case, the Arizona statute under which he had been convicted was overbroad and that conviction no longer qualified as a “controlled substance offense” under the Guidelines. Id. at *1.

Held: “At federal sentencing, the district judge was required to compare the elements of the state crime as they existed when Bautista was convicted of that offense to those of the crime as defined in federal law at the time of federal sentencing —that is, after the Agriculture Improvement Act removed hemp from the federal drug schedule. Because the federal CSA excludes hemp but . . . the Arizona Revised Statutes did not, the latter crime’s ‘greater breadth is evident from its text.’ . . . . Bautista's conviction is facially overbroad and not a categorical match for a ‘controlled substance offense,’ and the district court erred in applying the recidivist sentencing enhancement for a controlled substance. We conclude that the district court’s application of the six level recidivist enhancement was plain error. It was contrary to law and affected Bautista's substantial rights. . . . Because allowing this error to go uncorrected would “seriously affect the fairness, integrity, or public reputation of judicial proceedings,’ we exercise our discretion to grant relief.” Id. at *4.

 Of Note: Bautista was convicted of his Arizona pot offense in 2017. At that time, hemp was included in the federal definition. 

  Just last month, the Ninth applied the categorical analysis to the statute at the time of conviction. See Medina v. Barr, 2020 WL 6373434 at *6-*8 (9th Cir. Oct. 30, 2020). 

 After Medina, how did Bautista get the benefit of the categorial analysis at the time of his 2019 sentencing (after the federal statute excluding hemp)? Judge W. Fletcher explains that the Medina rule only applies to immigration cases – by contrast, in this “Armed Career Criminal Act context seen here” the analysis takes place at the time of sentencing.

   The Ninth probably meant in the “Career Offender” context (the definitional guideline that determines “controlled substance offense” for § 922(g)(1) offenses), but the general point holds: the timing of a categorical analysis depends on the context.  

 How to Use: Red flag: If your federal client has a marijuana prior (federal or state) you likely have action under Bautista (because previous few laws excluded hemp).

  Our federal Sentencing Resource Counsel are all over this issue – talk to an AFPD, and take a look at their memos if your client finds yourself in this fortunate situation.   

 For Further Reading: For a thoughtful piece explaining the Farm Bill of 2018 (and Senator McConnell’s advocacy for hemp), see “The Farm Bill, hemp legalization and the status of CBD: An explainer,” available here.  

 

Image of “What is hemp” from https://www.restorativecbd.com/what-is-hemp/

 

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

 

 

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Case o' The Week: Of Trials and Tribulations - Lamar Johnson, Rehaif, and Review of Convictions After Trial

 The Ninth Circuit carefully limits its review to facts in the record, when considering a challenge to a conviction after trial.

 

 (Facts in the appellate record, that is).

  United States v. Lamar Johnson, 2020 WL 6268027 (9th Cir. Oct. 26, 2020), decision available here.

 Players: Decision by Judge Watford, joined by Judges Rawlinson and Wallace. 

  Hard-fought appeal by ND Cal AFPD Robin Packel.  

 Facts: The ND Cal. USAO refused Johnson a conditional plea, to preserve a suppression issue for appeal. See blog entry here, on first decision. 

At the stip-facts § 922(g)(1) bench trial, the government failed to prove that Johnson knew of his status of a convicted felon. 2020 WL 6268027, *2.

  The Ninth denied the appeal of the denial of the suppression motion.

  After Johnson filed a petition for cert., the Supreme Court G.V.R.’ed the case back to the Ninth on the Rehaif issue. Id.

 Issue(s): “[ ] Johnson’s argument is best understood not as a challenge to the sufficiency of the evidence, but rather as a claim that the district court applied the wrong legal standard in assessing his guilt —specifically, by omitting the knowledge of status element now required under Rehaif.” Id. at *3. “The central issue we must decide is whether, in assessing the fourth prong of the plain-error standard, we may consider the entire record on appeal or only the record developed at trial. If we are limited to considering the trial record alone, as Johnson urges, his case for reversal appears strong.” Id. at *4.

 Held: “[W]e think it is appropriate in this case to review the entire record on appeal—not just the record adduced at trial—in assessing whether Johnson has satisfied the fourth prong of plain-error review.” Id. 

  “[ ] [W]e see no basis for limiting our review under the fourth prong to the record adduced at trial. In a case like this one, in which the error under review involves omission of an element of the offense, the record on appeal will often not disclose what additional evidence the government would introduce to prove an element that it had no reason to prove during the first trial. But if the record on appeal does disclose what that evidence consists of, and the evidence is uncontroverted, we can think of no sound reason to ignore it when deciding whether refusal to correct an unpreserved error would result in a miscarriage of justice.” Id. at *5. “In this case, the record on appeal contains additional evidence the government would introduce to prove that Johnson knew of his status as a convicted felon. And given the overwhelming and uncontroverted nature of that evidence, Johnson cannot show that refusing to correct the district court's error would result in a miscarriage of justice.” Id.

  “We conclude that such evidence will ordinarily preclude a defendant from satisfying the fourth prong of plain-error review when challenging the district court's failure to require the government to prove that the defendant knew of his status as a convicted felon.” Id.

 Of Note: Amicus curiae flagged United States v. Atkinson, 990 F.2d 501 (9th Cir. 1993) (en banc). In Atkinson, the Ninth held that a defendant who proceeded to a bench trial did not need to move for a judgment of acquittal to preserve a challenge to the sufficiency of the evidence.

  Judge Watford avoid Atkinson by re-characterizing Johnson’s challenge, changing it from “sufficiency of the evidence”, to a “claim that the district court applied the wrong legal standard in assessing his guilt.” Id. at *3. 

  Whether convincing or not, this distinction will likely prove critical in future “missing element” challenges.

How to Use: Johnson salvages trial conviction based on facts outside of the trial record. That grim new approach does arguably have an internal limitation. Judge Watford writes that this approach applies in cases where the record on appeal reveals the necessary, and uncontroverted fact. Id. at *5 (emphasis added). If there’s any dispute over the fact fitting the missing element, this Plain Error Fourth Prong gambit should not save the conviction.                                

For Further Reading: Rehaif challenges suffered a double-whammy this week. In United States v. Singh, Judge Milan Smith rejected a mens rea Rehaif challenge – cementing “knowingly” as the mental state required for the prohibited-person status. See 2020 WL 6304898 (9th Cir. Oct. 28, 2020), decision available here.

 

  

Image of “Error” from https://www.padtinc.com/blog/windowsupdate/

 

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

 

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Case o' The Week: Feeling Weemish After Conviction Affirmed - Lamar Johnson (II) and Scope of Review for Sufficiency of Evidence Challenges

 The Ninth never goes fishing beyond the trial record, when reviewing a sufficiency-of-evidence challenge to a conviction.

The Hon. Judge Paul Watford

 (Well, almost never).

United States v. Lamar Johnson, 2020 WL 3458969 (9th Cir. June 25, 2020), decision available here.

Players: Decision by Judge Watford, joined by Judges Rawlinson and Wallace. 

  Hard fought appeal by N.D. Cal AFPD Robin Packel.

Facts: To preserve a suppression challenge, Johnson went through a stipulated facts trial in a §922(g)(1) case, and appealed. Id. at *1. The Ninth upheld the denial of the suppression motion. See generally Johnson blog entry here.  

   While Johnson’s cert. petition was underway, the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019). Rehaif required the government to prove that a defendant knew he belonged to a class of persons prohibited from possessing a gun (in this case, the class being “felons.”) Id. at *1. That fact was not proved in Johnson’s stip fact trial.

   The Supreme Court GVR’ed Johnson’s cert. petition. In his second Ninth visit, Johnson challenged the government’s failure to prove the Rehaif knowledge element in the stip facts bench trial. Id. at *2. The Ninth Circuit first held that, because Johnson did not challenge the sufficiency of evidence in the bench trial, it was required to conduct “plain error” review. Id.

Issue(s): “The central issue we must decide is whether, in assessing the fourth prong of the plain-error standard, [whether the error seriously affected the fairness, integrity, or public reputation of judicial proceedings], we may consider the entire record on appeal or only the record developed at trial. If we are limited to considering the trial record alone, as Johnson urges, his case for reversal appears strong. The factual stipulation submitted by the parties does not state whether Johnson knew he had been convicted of a crime punishable by imprisonment for more than a year. It merely states, as a matter of historical fact, that Johnson had previously been convicted of ‘a crime punishable by imprisonment for a term exceeding one year.’ Without more information about the nature of the crime or the length of the sentence imposed, a rational trier of fact would be hard pressed to infer that Johnson knew of his prohibited status as required under Rehaif. And that failure of proof might well be deemed to affect the fairness or integrity of the judicial proceedings resulting in his convictions.” Id.

Held: “[W]e see no basis for limiting our review under the fourth prong to the record adduced at trial. To be sure, in most cases involving unpreserved sufficiency-of-the evidence challenges, the portions of the record on appeal outside the trial record will be irrelevant to the analysis. In the ordinary case, as in James, a retrial will not be permitted if the government’s evidence is found insufficient, so the validity of the defendant’s conviction must be judged based on the trial record alone. Even in cases subject to the exception created in [United States v. Weems, 49 F.3d 528 (9th Cir. 1995)], the record on appeal will often not disclose what additional evidence the government might possess to prove an element that it had no reason to prove during the first trial. But if the record on appeal does disclose what that evidence consists of, and the evidence is uncontroverted, we can think of no sound reason to ignore it when deciding whether refusal to correct an unpreserved error would result in a miscarriage of justice.” Id. at *5.

Of Note: The Ninth relies on the ’95 Weems decision, which carves out an exception to that rule when there is an intervening change in the law after the government’s original proof at trial. Note Judge Watford takes pains to limit the scope of this exception, id. at *5, -- but those limitations are small solace in this Rehaif decision.

How to Use: Johnson does not hold that all Rehaif challenges are doomed. Mr. Johnson had the unfortunate burden of three prior felonies, with years of prison time. If your client doesn’t have a similar record (suggesting knowledge of a felony prior) you may be able to dodge this Weems dodge in your Rehaif challenge.

AUSA Jason St. Julien

                                               

For Further Reading: How does it feel to be a black AUSA, watching Black Lives Matter protests?

  For a remarkable and courageous piece by AUSA Jason St. Julien, see this Denver Post editorial, here.  

Image of the Hon. Judge Paul J. Watford from https://law.marquette.edu/assets/marquette-lawyers/pdf/marquette-lawyer/2015-spring/2015-spring-full.pdf

Image of AUSA Jason A. St. Julien from https://cle.cobar.org/cvweb/cgi-bin/memberdll.dll/info?WRP=facultyBio.htm&customercd=520184

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

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Case o' The Week: Read 'Em or Weep - Becerra and Structural Error

Prominent crim-law jurists tangle over knotty Weaver.

United States v. Becerra, 2019 WL 4582835 (9th Cir. Sept. 23, 2019), decision available here.

Players: Decision by Judge Berzon, joined by ED PA DJ Robreno.

  Dissent by Judge Graber.

Facts: Becerra was tried on drug charges. Id. at *1. At the pretrial conference, the district court explained that it would give the jury written instructions, would confirm that the jury read them, but the DJ would not actually read the instructions aloud unless the instructions later changed. Id. Neither party objected. Id.

  The district court read preliminary instructions to the jurors, but did not read the substantive instructions or explain the elements. Id. at *2. The court later confirmed with each juror that they had read the draft instructions, and – for a few new or modified instructions – the judge read the instructions aloud. Id. at *2. “The district court did not after the close of evidence read aloud any of the remaining twenty-seven instructions, or otherwise orally instruct the jurors as to the substantive law.” Id.

  Becerra was convicted of all counts. Id.

Issue(s): “Becerra [argues] . . . that the district court erred by not reading the jury instructions aloud to the jury. Becerra did not object in the district court . . . . We therefore review the failure to provide an oral jury charge for plain error.” Id. at *3.

  “[The government] recognizes that, as [Guam v. Marquez, 963 F.2d 1311 (9th Cir. 1992)] makes clear, the district court in this case erred by not reading the essential jury instructions aloud. Rather, the government’s central contention is that Marquez is not here binding as to its second holding—that the failure of the district court to read jury instructions aloud to the jurors in open court is structural error and so not subject to harmless error analysis.” Id. at *5.

Held: “[ ] Marquez is binding on us not only with regard to its substantive holding as to the necessity of oral jury instructions but also as to its second holding—that the district court committed structural error by failing to read an oral charge to the jurors.” Id. at *5.

   “A trial court does not satisfy its duty to instruct jurors in a criminal case just by providing those jurors with a set of written instructions to use during deliberations. . . . [A] trial court abdicates its responsibility to charge the jury orally as to the elements of the charged crimes, it commits structural error. . . . We . . . reverse the conviction . . .” Id. at *1 (internal citations omitted).

Of Note: So, District Judges have to read instructions to the jury. To be honest, that’s yesterday’s news – that’s been the clear rule for three decades.

 Far more interesting in Becerra is Judge Berzon’s thoughtful analysis of how to approach structural error.

  Structural error is critically important to protect, well, structural constitutional rights, but has been under increasing attack from the Supreme Court.

  Judge Graber presses this attack, arguing in dissent that this plain error was not structural, and was harmless. Id. at *8 (Graber, J., dissenting, citing Weaver, 137 S.Ct. 1899 (2017)).

  The core issue in Becerra, therefore, is whether SCOTUS decisions after the Ninth’s ’92 Marquez opinion undermined the Ninth’s rule that failure to orally advise the jury is structural error? Id. at *8.

  “Nope,” concludes the majority. Id. at *5.

  Writing for the Court, Judge Berzon carefully describes the case-by-case analysis necessary for structural error – an approach that jives with SCOTUS dictates.

   Appellate folks, this battle is worth a close read: the Berzon v. Graber debate over Weaver sets the stage for future structural error battles to come.

How to Use: Remember Becerra and object when a frazzled DJ wants to skip reading a new jury instruction at the end of a long trial. It is a rare, bright-line rule: written instructions alone won’t cut it.

                                               

For Further Reading: Weaver is referenced thirteen times, in Judge Berzon's and Judge Graber's debate. What does that Supreme Court decision mean? 

   For an interesting overview of Justice Kennedy’s opinion, see Prof. Rory Little’s piece here.  

Image of Weaver from https://www.artic.edu/artworks/151363/the-weaver

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

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Case o' The Week: Benamor, Encore - Benamor, Plain Error, and Rehaif Claims

  A felon, 

   charged with "felon in possession," 

      with a "felon in possession" prior, 

         may have known he was a felon.

United States v. Benamor, 2019 WL 4198358 (9th Cir. June 6, 2019, amend. Sept. 5, 2019), decision available here.

 

Hon. Judge Susan Graber

Players: Decision by Judge Graber, joined by Judges Bybee and DJ Harpool.  

Facts: Cops found a shotgun in a van which Benamor, a felon, had driven. Id. at *2. He went to trial on § 922(g) charges, and stipulated that he was a felon. Id. at *5. Benamor was convicted and appealed. Id. at *2.

  In the original opinion, Judge Graber denied Benamor’s challenge based on a failure to instruct on the “antique firearm” aspects of the statute. See COTW blog here. 

  Benamor then filed a petition for rehearing, arguing that – under Rehaif – there was insufficient evidence for a conviction because the government failed to prove he knew he was a felon when he possessed the old shotgun. Id. at *5. (Rehaif was decided after Benamor was convicted).

Issue(s): Under plain error review, was there "a probability that, but for the [Rehaif] error, the outcome of the proceeding would have been different"? Id. at *5. Did "this error in not instructing the jury to make such a finding affect Defendant’s substantial rights or the fairness, integrity, or public reputation at trial"? Id. 

Held: “[T]he third and fourth prongs of the plain-error test are not met. Here, there is no probability that, but for the error, the outcome of the proceeding would have been different. . . . When Defendant possessed the shotgun, he had been convicted of seven felonies in California state court, including three felonies for which sentences of more than one year in prison were actually imposed on him. The felonies included one case in which Defendant sustained convictions for being a felon in possession of a firearm and a felon in possession of ammunition; he was sentenced to five years and eight months in prison. Defendant spent more than nine years in prison on his various felony convictions before his arrest for possessing the shotgun. At a minimum, the prior convictions for being a felon in possession of a firearm and being a felon in possession of ammunition proved beyond a reasonable doubt that Defendant had the knowledge required by Rehaif and that any error in not instructing the jury to make such a finding did not affect Defendant’s substantial rights or the fairness, integrity, or public reputation of the trial.” Id. (italics in original).

Of Note: In the amended opinion, Judge Graber recounts the many ways in which she believes the government could have proved the Rehaif “knowledge” element (although, it bears noting, it did not). Specifically, the Court emphasizes Mr. Benamor’s previous felon in possession convictions (which Judge Grabers deems enough to “prove beyond a reasonable doubt” that Benamor knew of his status as a felon). This particular prior is an unfortunate criminal history for Mr. Benamor, but note that the opinion is not a per se rule for all felons with Rehaif claims. Depending on your client’s felony priors, a bit of light may still shine through this dark decision.

How to Use: Judge Graber seems tempted to hold that the mere fact of an old-school Old Chief stip to a felony prior “end[s] the discussion as to Defendant’s knowledge of his status as a felon.” Id. at *5. A close read of the opinion, however, reveals that the Ninth does not actually so hold. See id. 

  If your client does not have the regrettable fact of Benamor’s previous “felon in possession” conviction (and Benamor’s seven felony priors), don’t quite fold the tent yet on the Rehaif claims now perking in the Ninth – plain error will require a case-by-case analysis.

                                               

For Further Reading: Plain confused by plain error? For a very helpful outline written by experienced federal defense counsel, see “Plain-Error Review from Top to Bottom, or Slaying the Four-Headed Hydra,” available here.

Image of the Hon. Judge Susan Graber from https://usdchs.org/oral-histories/our-collection/susan-p-graber/

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

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Case o' The Week: One Outta Three? May Earn the Full Three! - Acceptance of Responsibility and Relevant Conduct

Hon. Judge Marsha Berzon

  Ninth skeptical of "safe" sentencing . . . 

   United States v. Jeffrey Green, 2019 WL 3939348 (9th Cir. Aug. 21, 2019), decision available here.

Players: Decision by Judge Berzon, joined by Judges Tashima and W. Fletcher.  

Facts: While arresting Green cops found a gun in his pocket. Id. A later search produced two more pistols, locked inside a safe accessible from Green’s apartment. Id. The guns in the safe had been reported stolen. Id.

   Green plead open to the § 922(g) charge, admitting guilt for the gun in his pocket. Id. & n.1.

  [Ed. Note: Unlikely that the Rehaif knowledge element was charged, or admitted, in this open plea].

   Probation hit Green with higher guidelines for three guns, plus a “stolen weapon” guidelines bump for the guns in the safe. Id. The PSR denied Green acceptance, because he had not admitted to possessing the pistols in the safe. Id. Green objected, arguing the government had not proven that the firearms in the safe were in his possession. Id.

  At a sentencing evidentiary hearing, the district court heard Green express dismay in a post-arrest recorded call, when he learned a locksmith had been brought in to open the safe. Id. at *2. The court concluded Green was good for all of the guns, and for the stolen gun bump, and those higher associated guidelines. The district court left open the question of whether Green should get a reduction for acceptance of responsibility.

   At the second sentencing hearing, the court decided against the acceptance reduction -- before it heard the defendant’s allocution. Id. at *2.

Issue(s): “Must a district court decide on a defendant’s eligibility for an acceptance-of-responsibility reduction in his Guidelines level before listening to the defendant’s allocution?” Id. at *1.

Held: “Our answer is ‘No.’” Id.

   “A misapprehension of law occurred here. The district court believed that it had to determine whether Green had accepted responsibility before allowing Green his opportunity to allocute. That is not so.” Id. at *3.

   “We hold that the sentencing court erred by concluding that it could not first hear from the defendant before determining whether a reduction for acceptance of responsibility was warranted under the Sentencing Guidelines. We also conclude that this misapprehension was plain error and so vacate the sentence and remand for resentencing.” Id. at *7.

Of Note: Green’s counsel did not raise this issue on appeal – briefing was sought by the Ninth. Id. at *5. Judge Berzon gets to plain error review anyway, with a useful analysis of plain error factors. Id.

  Note the Ninth also rejects the government’s argument that Green waived the claim – a nice appellate-waiver distinction to tuck away for future use. Id. at 5 & n.4. 

  In an encouraging nod for Green, the Ninth concludes the plain error analysis by predicting he has a shot at a lower sentence on remand. Id. at *6.

   The Ninth’s “reasonable probability of a lower sentence” analysis is of particular interest – see “How to Use” below.

How to Use: Relying on the Ninth’s old Ginn case, the district court denied acceptance because Green only admitted guilt as to one gun.

  “Not so fast,” concludes Judge Berzon. Id. at *6 - *7.

  In Ginn, the defendant didn’t admit all charged counts. Here, by contrast, Green admitted the pocketed revolver in the charged count – he just didn’t admit additional “relevant conduct” guns. Id. Judge Berzon explains that a defendant doesn’t lose acceptance for not admitting relevant conduct (although acceptance may be at risk if a defendant falsely denies, or frivolously contests, relevant conduct. Id). at *6. Green, she muses, may thread the acceptance needle on remand. Id. at *7.

  Probation and AUSAs often want defendants to shoulder sins back to Adam’s apple to earn acceptance. This Green discussion on acceptance is thus the most intriguing part of this interesting decision. Read Green when navigating the “acceptance” labyrinth in the face of relevant conduct worries.

                                               

Hon. Judge Danielle Hunsaker

For Further Reading: Last week President Trump nominated Judge Danielle Hunsaker, an Oregonian appellate judge, to Judge O’Scannlain’s vacant Ninth seat. See article here.  

  Judge Hunsaker was jointly recommended by Oregon Senators Wyden and Merkley (D). See Ballotpedia entry here. 

  Like Ninth Circuit Judges Ikuta, Watford, and Owens, Judge Hunsaker was a Ninth Circuit clerk, having worked for Judge O’Scannlain early in her career. Id.

Image of the Hon. Judge Marsha Berzon from https://www.law.berkeley.edu/article/judicial-externs-debt-gratitude/ .

Image of the Hon. Danielle Hunsaker from https://pamplinmedia.com/ht/117-hillsboro-tribune-news/378183-264528-danielle-hunsaker-appointed-as-washington-county-judge 

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

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Case o' The Week: Error Plain Here Government's Bain -- Bain, Rule 11 Plea requirements, and Armed Bank Robbery

 A closed knife just won't cut it.

United States v. Bain, 2019 WL 2426145 (9th Cir. June 11, 2019), decision available here.

 Players: Decision by Judge Tashima, joined by Judge M. Smith and DJ Piersol.  

 Facts: Bain, a heroin addict, robbed several banks without a weapon. Id. at *1. At the last bank, he accidentally pulled a closed pocket knife from his pocket, along with a plastic bag for the loot. Id. 

  (Bain later explained he did not intend to cause fear or intimidate the teller with the knife. Id.)

  Bain plead open to unarmed and (for the bank with the knife) armed bank robbery. Id. The defense didn’t object to the sufficiency of the plea for the armed robbery count. Id. 

  Bain was sentenced to 197 months on the armed robbery count, and 137 months (concurrent) on the unarmed robbery counts. Id. at *2.

Issue(s): “On appeal, Bain contends that the district court violated Federal Rule of Criminal Procedure 11(b)(3) by entering judgment on Bain’s guilty plea without a sufficient factual basis for the plea. During the robbery, which Bain admitted committing, Bain inadvertently placed a closed pocket knife on the bank’s counter while pulling a plastic bag out of his pocket.” Id. at *1.

  “[T]he only issue before this Court is whether there was a sufficient factual basis to meet the statutory requirement of ‘puts in jeopardy the life of any person by the use of a dangerous weapon or device.’ More specifically, we focus on what constitutes the “use” of a dangerous weapon during a bank robbery.” Id. at *3.

Held: “We hold that this action did not ‘put[ ] in jeopardy the life of any person by the use of a dangerous weapon,’ which is a requirement for armed bank robbery under 18 U.S.C. § 2113(d). Because the district court committed plain error in accepting Bain’s guilty plea without a sufficient factual basis, and the error affected Bain’s substantial rights, we reverse Bain’s conviction for armed bank robbery, vacate his sentence, and remand for further proceedings.” Id. at *1.

Of Note: Judge Tashima explains that on these facts, the “silent presence of a knife on the counter” was not “obvious and forceful,” so the knife wasn’t “used” for the robbery. There was not, therefore, a sufficient factual basis for the plea. Id. at *4.

   So, does that count now go away? 

  Sadly, no: the Ninth presumes that jeopardy has not attached. The government can take that count to trial, reduce it to an unarmed bank robbery charge, or dismiss it. Id. at *5 & n.6. 

  Query how a trial on this charge would survive a Rule 29 motion, if these facts didn’t cut Rule 11 mustard for the Ninth? Maybe a jury would disbelieve Bain’s account about the knife – although tough to imagine how the government would thread this element’s needle, after this decision by the Ninth.

How to Use: There are two interesting appellate nuggets in Bain. First, Judge Tashima engages in a helpful “substantial rights” analysis as part of the “plain error” issue. Id. at *4. He concludes that, but for this Rule 11 mistake, Bain would have gone to trial – so he earns a plain error reversal for this Rule 11(b)(3) problem. Id.

  Bain is also helpful for the idea that sentences become “unbundled” when one count is reversed, requiring an entirely new sentencing package on remand. Id. at *5.

                                               

For Further Reading: Last week, Judge Carlos Bea announced his plans take senior status upon the “nomination, confirmation and appointment of his successor.” See article here. Judge Bea was nominated to the Ninth by President George W. Bush. See article here. 

The Honorable Judge Carlos Bea

Judge Bea’s spot is President Trump’s ninth, Ninth, slot – with Patrick Bumatay rumored to be a lead candidate for the position. See Washington Times article here.  

Image of Swiss Army knife from https://www.stickpng.com/img/objects/swiss-army-knives/closed-swiss-army-knife 

Image of the Honorable Judge Bea from https://www.unlv.edu/event/judge-lloyd-d-george-lecture-judge-carlos-bea

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

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Case o' The Week: Waver in Disfavor - Depue, Waiver and Forfeiture of Appellate Claims

  An en banc court of the Ninth has found that a defendant forfeited his challenge to a guideline sentence.

  Hooray!

United States v. Depue, 912 F.3d 1227(9th Cir. Jan. 14, 2019) (en banc),

decision available here.

Players: Decision by Judge Berzon, joined by CJ Thomas, and Judges Fletcher, Paez, Berzon, M. Smith, Ikuta, Christen, Nguyen, Watford, Hurwitz, and Friedland. 

  Federal Defender Amicus effort by AFD’s Vince Brunkow and Michael Marks, Federal Defenders of San Diego, Inc.  

Facts: Depue, who represented himself, was convicted of mortgage fraud after a jury trial. Id. at 1230. The government recommended a whopping OL 39, based on its loss theories. Id. at 1231. The PSR parroted this calculation: pro se defendant Depue didn’t object. Id. 

  Depue was sentenced to over twenty-one years. 

  He appealed, arguing that the loss calculations were erroneous. Id. A three-judge panel held Depue waived his objections to the alleged Guideline errors. Id. at 1231-32. 

  The case went en banc.

Issue(s): “We are asked to explain when a defendant is entitled to plain error review of challenges to his sentence that he failed to raise in the district court. Our cases have consistently held that a defendant waives his rights and precludes plain error review only when there is evidence that he knew of his rights at the time and nonetheless relinquished them. Twenty-one years ago, we explained this point in an en banc opinion. United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc).” Id. at 1229.

Held: “We reaffirm today this distinction between waiver and forfeiture.” Id. 

  “Confining our en banc consideration to Depue’s challenge to the Guidelines calculations, we hold that Depue’s failure to object to the Guidelines calculations at sentencing constitutes forfeiture subject to plain error review, but that there was no plain error.” Id. at 1230 (emphasis added).

Of Note: The Ninth reviewed Depue’s claims for plain error. The threshold issue for Olano “error” is whether the claim was “intentionally relinquished or abandoned.” Id. at 1232. As Judge Berzon explains, “forfeited claims are reviewed for plain error, while waiver precludes appellate review altogether.” Id. (emphasis added).  

  What makes for a “waiver?” Evidence that the defendant knew what they were giving up – a mere failure to object isn’t enough. 

  Judge Berzon writes that “The relevant question is whether Depue knew the substantive legal rules underlying the particular challenges to the Guidelines calculation he raises on appeal, and knew that the district court’s calculation violated those rules.” Id. at 1233-34. The en banc court holds that Depue didn’t know what he was giving up, so he didn’t waive. This distinction “between waiver and forfeiture is particularly important in the sentencing context.” Id. at 1234. A critically important holding, particularly for the extraordinarily complex Guideline (and Taylor analysis) sentencing process – it gives us a shot at plain error review, and getting a botched sentence fixed, on direct appeal. 

  This is a thoughtful opinion, buttressed by policy considerations, and is just flat-out fair: no surprise that all eleven e.b. votes signed onto the outcome.

How to Use: The defense in Depue won an (important) battle, but Depue himself lost the war. The Ninth held that, if there were legal or factual errors in the guideline calcs, they didn’t rise to level of plain error. 

  The take-away? Forfeiture and plain error review is better than waiver and getting kicked out of the Ninth -- but a nice record heavily peppered with clear objections is better than both.

                                               

For Further Reading: The national defense community generally, and NorCal specifically, has suffered a tremendous loss with the untimely death of San Francisco Public Defender Jeff Adachi.

   The only elected public defender in California, Jeff was a tireless and fearless advocate for his own clients, for resources for his office and for indigent defense, and for reform of the criminal justice system.

  

Our deepest condolences to his family, and to our PD brothers and sisters: we’ve all lost a good friend and great leader. See SF Chronicle Article here.

Image of “Ralph Wiggum” waver from https://tenor.com/search/waving-gifs

Image of Jeff Adachi from https://abc7news.com/society/san-francisco-public-defender-jeff-adachi-dies-at-59/5152699/

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

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