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: Forfeiture hits a new Lo -- United States v. Henry Lo, Forfeiture, and Restitution

 Q: What do you call a forfeiture order that seizes proceeds from dismissed or acquitted counts?

 A: Valid.

 United States v. Henry Lo, 2016 WL 5799706 (9th Cir. Oct. 5, 2016), decision available here.

Players: Decision by Judge Ikuta, joined by Judge Clifton and DJ Lamberth. 

  Hard fought appeal by NorCal CJA stalwart Martha Boersch, of Boersch Shapiro LLP.

Facts: Lo was charged with wire and mail fraud. Id. at *1. He pleaded guilty to some of the counts in the indictment, in a standard NorCal plea agreement: a detailed fact pattern in paragraph 2, a concession of fraud proceeds of over $2 million, and an appellate waiver. Id. at *2-*3. The plea agreement specified a restitution amount of no less than $1.7 million. Id. at *3. 

  Before sentencing, the government moved for a forfeiture order of over $2.3 million. Id. After sentencing, the Court ordered a forfeiture money judgment of over $2.3 million, and also ordered Lo pay $2.3 million in restitution. Id. Lo appealed. Id.

Issue(s): “Before addressing Lo’s claims, we must first address the government’s argument that Lo waived his right to appeal any aspect of the sentence by agreeing to an appeal waiver in his plea agreement.” Id. at *4.

Held: “Because Lo validly waived his right to appeal, and none of the exceptions to such waivers are applicable, we dismiss this appeal.” Id. at *1.

Of Note: Lo is now a seminal case in the Ninth on restitution and forfeiture. The decision first lays out the contractual interpretations of plea agreements, discusses exceptions to those interpretations, and describes the interplay between restitution and forfeiture. In so doing Lo sets forth several new rules. 

  It has long been a requirement that a defendant receive notice before being hit with restitution. That notice requirement doesn’t apply, Judge Ikuta explains, to forfeiture orders – a beast authorized by an entirely different statute. Id. *8. “Therefore, an appeal waiver can validly waive the right to appeal a forfeiture order issued as part of the sentence regardless of whether the plea agreement provides the defendant with a reasonably accurate estimate of the amount of forfeiture or whether the defendant was given adequate notice before a district court determined that amount.” Id. at *9. 

  The take-away? Your client’s dough is being grabbed: either through a restitution order, or a forfeiture order. If the money is seized through restitution, there are specific notice requirements that – if not followed – can undermine the validity of an appellate waiver. 

  If the funds are seized through forfeiture? Not so much.

How to Use: Under the forfeiture statute the government can get a forfeiture order to seize proceeds of the crimes for which the defendant was convicted. If the defendant is convicted of counts 1, 2, and 3, can the court order forfeiture of proceeds from crimes alleged in dismissed (or acquitted) counts 4, 5, and 6? 

  In another new rule, Judge Ikuta holds, “yes.” 

  Joining the Seventh Circuit, the Ninth concludes that the “proceeds of the crime of conviction” for forfeiture “consist of the funds involved in that fraudulent scheme, including additional executions of the scheme that were not specifically charged or on which the defendant was acquitted.” Id. at *12 (emphasis added). 

  This is analogous to that cursed guideline “relevant conduct:” a concept that can scoop up and punish charges for which your client was actually acquitted. Same idea, now expanded to forfeiture. 

  Before assuring your client a deal or trial could provide some finality, have a hard talk about the forfeiture ramifications of those dismissed (or even acquitted) counts.

                                               

For Further Reading: What’s with the surging interest in forfeiture and restitution? Turns out that grabbing the funds is an active prosecution priority of DOJ. For an accessible summary of DOJ’s blurb on restitution and forfeiture, see DOJ post here. 

  For a gleeful DOJ Powerpoint that gloats that a lack of a criminal conviction needn’t stand in the way of forfeiture, see pdf available here. (“No criminal restitution order? No problem!”)

Image of DEA patch from http://d7.freedomworks.org.s3.amazonaws.com/field/image/DEA-asset-forfeiture-patch.jpg

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

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Case o' The Week: Myers Lemon of an Opinion, thanks to Supremes and Davila - Criminal Settlement Conferences and Rule 11(c)(1)

  In an appeal from (Judge) Davila controlled by (opinion) Davila, Ninth finds no appellate waiver when client didn’t waive (waiveable) Rule 11 limitations (which cannot, however, be waived to get a criminal settlement conference, under the Northern District of California's local rule).

  Got it?

United States v. Myers, 2015 WL 5315376 (9th Cir. Mar. 11, 2015), decision available here.

Players: Decision by Judge Murguia, joined by Judges McKeown and Friedland. Hard-fought appeal by NorCal CJA Counsel Michael Hinckley.

Facts: On June 13, 2013, the Supreme Court held in Davila that Fed. R. Crim. Proc. 11 precluded judicial involvement in criminal settlement conferences. Id. at *7. Before Davila was decided, Myers was charged with fraud. Id. at *1. He requested a criminal settlement conference, in accordance with N.D. Cal’s Crim. L. Rule 11-1. Id. The AUSA agreed, and a Magistrate Judge moderated a settlement conference that produced a written plea agreement and guilty plea. Id. Davila was then decided. Four months later, id. at *8, Myers was sentenced to 18 months (below the two years recommended by Probation). Id. at *3.

Issue(s): “Myers does not dispute that he voluntarily participated in the settlement conference. Rather, he argues the procedure violated Federal Rule of Criminal Procedure 11, which prohibits ‘[t]he court’ from ‘participat[ing] in [plea] discussions.” Fed.R.Crim.P. 11(c)(1). Specifically, Myers argues that the Supreme Court's decision in Davila. . . 133 S.Ct. 2139 . . . (2013), sets forth a categorical rule prohibiting any judicial involvement in plea negotiation, even, as is at issue here, when the judicial participation is both requested by the defendant and sanctioned by the district court's local rules.” Id.

Held: “We agree that Davila makes clear that Rule 11(c)(1) imposes a categorical bar on judicial participation in plea negotiations. Because Myers failed to object at the time to judicial participation, however, we review his unpreserved Rule 11 claim for plain error, and we affirm. Myers has failed to establish the alleged error affected his substantial rights because the record is bereft of evidence indicating that he suffered any prejudice due to the magistrate judge’s participation in the settlement conference. Rather, the settlement conference helped Myers reach a plea deal with the government—something Myers vigorously pursued during the nearly three years of pretrial proceedings—which resulted in Myers receiving a below-Guidelines sentence.” Id. 

 “[W]e conclude that Rule 11(c)(1) extends to the magistrate judge's participation in the settlement conference at issue here.” Id. at *4. 

“We note that this means Northern District of California Local Criminal Rule 11–1(a) was and is in conflict with Rule 11(c)(1).” Id. at *5.

Of Note: Consider these Myers holdings. Rule 11 “imposes a categorical bar” on judges leading criminal settlement negotiations. Id. at *4. However, “[w]e . . . hold that Rule 11(c)(1) can be waived by the defendant.” Id. at *6. “[T]he Northern District’s settlement conference procedure is not categorically impermissible: while the procedure violates the plain letter of Rule 11(c) (1), the rule is waivable at the defendant's election.” Id. at *8. 

Is this a window of opportunity? Can we get a written waiver from the client or judicial confirmation of the Rule 11 waiver, id. at *6, and get crim settlement conferences back in business? 

Probably not. 

The Court seems to be distinguishing “this makes it all OK” waiver, from “you gave up your appeal waiver.” Id. at *5 (“While these facts bear on whether Myers voluntarily waived Rule 11(c)(1) . . . these procedural protections do not ameliorate the conflict between the local rule and Rule 11(c)(1)’s categorical bar on judges participating in plea negotiations.”) Id. at *5. Nonetheless, by all means give crim settlement conferences a shot after Myers (if you can find a willing AUSA and federal settlement judge).

How to Use: This plea agreement had an appellate waiver -- why didn’t the appeal stop there? Because these waivers don’t cover Rule 11 errors. See id. at *5. Handy exception to remember, when there are plea quirks.

                                               

For Further Reading: The lousy facts of Davila cost us an important settlement tool. For an interesting article discussing the pros and cons of criminal settlement conferences – and suggesting a middle course -- see Rishi Raj Batra, Judicial Participation in Plea Bargaining: a Dispute Resolution Perspective, at 76 Ohio St. L.J. 575 (2015), available here.

Image of Meyer lemon from http://foodalogue.com/wp-content/uploads/2011/02/meyer-lemon-500x375.jpg

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

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