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: Ninth Needles Government - Hong and "Use" in Section 1028A

Judge Paez drives the point home, in a case of first impression.

United States v. Hong, 2019 WL 4315165 (9th Cir. Sept. 12, 2019), decision available here.

Players: Decision by Judge Paez, joined by Judges Clifton and D.J. England. Big win for former CD Cal AFPD Carlton Gunn.   

Facts: Hong owned and operated massage and acupuncture clinics. Id. at *1. He gave his patients’ Medicare-eligibility info and identities to physical therapy companies, who then billed Medicare. Id.

  In reality, however, the clients received massage and acupuncture (not covered by Medicare), and essentially no physical therapy (covered by Medicare). Id. at *2. Hong received the majority of the Medicare payments. Id. Notably, this is what the patients wanted – they came seeking massage and acupuncture, not physical therapy. Id.

  Hong was charged, tried, and convicted of fraud and kickback counts, and of two counts of aggravated identity theft. Id. at *3. “The government alleged that Hong used the names and Medicare-eligibility information of patients to submit, with the help of his co-schemers, claims for benefits without lawful authority.” Id. at *7.

Issue(s): “Hong argues there was insufficient evidence of aggravated identity theft [because] . . . this fraudulent billing does not constitute a ‘use’ of the patients’ identities within the meaning of the aggravated identity theft statute.” Id. “[This] argument presents a new question for our court: whether the fraudulent billing demonstrated in this case constitutes a ‘use’ of the patients’ identities under section 1028A.” Id.

Held: “Hong provided massage services to patients to treat their pain, and then participated in a scheme where that treatment was misrepresented as a Medicare-eligible physical therapy service . . . Neither Hong nor the physical therapists ‘attempt[ed] to pass themselves off as the patients.’ . . . . Hong’s fraudulent scheme ran afoul of other statutes—namely, health care fraud and unlawful remunerations—but not section 1028A. We hold that Hong did not ‘use’ the patients’ identities within the meaning of the aggravated identity theft statute. Accordingly, we reverse Hong’s [agg ID] convictions . . . . .” Id. (citations omitted).

   “Hong participated in and, through kickbacks, profited from a health care fraud scheme. His conduct, however, falls short of aggravated identity theft as it is contemplated in the statute. We therefore reverse Hong’s convictions for aggravated identity theft and remand for resentencing.” Id. at *9.   

Of Note: Section 1028A is the infernal “agg ID theft” statute. Carrying a two-year mand-min, it is a charge frequently abused by the government. See, e.g., United States v. Bercovich, 615 Fed.Appx. 416 (9th Cir. 2015), mem. (permitting § 1028A counts where identities were used with the person’s active consent). Hong is thus particularly welcome -- a rare appellate limitation for this generally boundless offense.

  In Hong, Judge Paez carefully analyzes the word “use” in the agg ID statute, and recounts with approval the approaches of the First and Sixth Circuits (both of which reject § 1028A charges in this context). Hong, 2019 WL 4315165 at *7-*8.

  Beware of the boundaries of Hong’s new rule –convictions can be upheld where there was impersonation or forgery. Id. at *8 & n.8. Nonetheless, any limit is a good limit: Hong helps.

How to Use: Must one argue all defense theories when moving for a Rule 29 dismissal? When that didn’t happen in Hong, the government argued that several appellate theories were waived. See id. at *5 (discussing Graf). 

  Federal trial attorneys should read Hong’s Rule 29 discussion carefully: if we articulate a specific Rule 29 theory at trial, our appellate comrades will thank us later if we try to articulate them all.

                                               

For Further Reading: Az Appellate AFPD Keith Hilzendeger found a hen’s tooth: a full week’s calendar staffed by Ninth judges. See Ninth Circuit calendar here.  No visiting judges, no D.J.s, see blog entries here, just Western appellate judges. 

  This feat was made possible with the influx of Trump-nominated jurists: Judges Miller, Bennett, and Bade all sat on this Pasadena calendar.

Image of acupuncture from https://www.relaxoncloud9.com/pins-needles/2018/6/4/9-facts-about-acupuncture

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

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Case o' The Week: Merry Christmas, from St. Nintholas - Sanchez and Rule 29 Win (After Stip Facts Bench Trial!)

Charged with "felon in possession."

Stip'ed to all elements.

Bench trial.

Found guilty by the district court.

 And . . . home for the holidays!

United States v. Sanchez, 2018 WL 6720559 (9th Cir. Dec. 20, 2018) (mem.), decision available here.

Players: Mem. dispo by Judges D.W. Nelson, Wardlaw, and visiting DJ Pratt. Admirable reversal for insufficient evidence on a stip facts bench trial for CD Cal AFPD Jonathan Schneller.

Facts: After plea negotiations broke down, Sanchez had a stip facts bench trial on a § 922(g) (felon in possession) charge. Id. He stipulated to an essential element of this crime: that he had suffered a prior felony conviction. Id. This stip was discussed at the pretrial conference, mentioned by the government in opening and closing arguments during the stip facts bench trial, and was filed on the docket after the close of evidence. Id. The AUSA, however, forgot to move the stip into evidence or read it into the record. Id. 

  The defense did not identify this oversight in a Rule 29 motion during trial. Id. Instead, after the district court found Sanchez guilty, the defense moved for a judgment of acquittal arguing that the government had not introduced evidence of all elements. Id. (citing United States v. James, 987 F.2d 648 (9th Cir. 1993)). 

  The district court denied the motion. Id.

Issue(s): “John Alexander Sanchez appeals his conviction, by bench trial, of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). . . . Sanchez contends his conviction was not supported by sufficient evidence, because the stipulation to his prior felony was not properly entered in the evidentiary record.” Id. at *1.

Held: “We agree, and reverse his conviction.” Id. “In James, we held that a stipulation that had not been read to the jury or received into evidence” could not sustain a conviction, because there was no fact in evidence that the jury could take as proved. We noted that even a correct and signed stipulation not so presented would not be enough, and expressly rejected the argument that a defendant’s stipulation outside the trial record removed that issue from consideration such that no further evidence on the issue was required because a stipulation is conclusive proof of the fact agreed to. . . . .  

  “In the absence of the stipulation here, insufficient evidence exists that would convince any rational trier of fact beyond a reasonable doubt that Sanchez had been convicted of a crime punishable by over a year of imprisonment.” Id. (internal quotations and citation omitted).

  

Of Note: Had the government simply agreed to a conditional plea, and allowed Sanchez to appeal the denial of a pretrial ruling, this remarkable reversal of a conviction after a stipulated facts bench trial would have never happened. See Fed. R. Crim. Proc. 11(a)(2).

  We’re told the USAO’s refusal to offer conditional pleas saves government resources. The Feds are right: here, it saved the government the considerable cost of incarcerating Mr. Sanchez after a Section 922(g) conviction.

How to Use: Like a Christmas fruit cake, this brief mem dispo is dense with little nuggets (but is far tastier). The Ninth rebuffs the government’s attempt to limit the legendary James decision to jury trials. The distinction between jury and bench trials is “of no constitutional significance.” Id. 

  The government’s briefing apparently complained that the defense didn’t identify the government’s failure of proof during trial. See Appellant’s Reply Brief at 2018 WL 4740139. That curious complaint doesn’t even merit discussion in this mem. disp. 

  And the Ninth rejects a “judicial admission” pitch that the government threw into a footnote. “Consigning [the argument to] a single sentence in a single footnote” meant that the government had abandoned the argument. Id. at 1 & n.2.

  Good things come in small packages.  

                                               

For Further Reading: Last August, former CJA Panel Attorney David Anderson was nominated by President Trump to serve as the United States Attorney for the Northern District of California. 

  There had been some talk of a confirmation by the Senate last week. Other events – like the unfortunate shut down of the federal government of the United States of America – appear to have intervened. 

  For an update on Mr. Anderson’s confirmation odyssey, see Congressional website here. 

Image of Legal Clause from https://www.amazon.com/dp/B077SPZLZQ/ref=asc_df_B077SPZLZQ1545476400000?tag=merbethomgarshape-20&creative=395261&creativeASIN=B077SPZLZQ&linkCode=asn&ascsubtag=109354952&customId=B0752XM8J2&th=1

Image of Christmas package from https://www.pinterest.com/pin/424745808590079392/ 

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

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Case o' The Week: Ninth Scrubs Gov't Theories, Conviction Washes Away - Katakis and Obstruction of Justice

  Altering is a no-no. 

Destroying, mutilating, and concealing is verboten. 

Falsifying will get you twenty, under 18 USC Section 1519.

But “scrubbing?” Maybe not enough for obstruction (at least, not here).

United States v. Katakis, 2015 WL 5090792 (9th Cir. May 15, 2015), decision available here.

Players: Decision by Judge N.R. Smith, joined by Judges Berzon and Chief D.J. Collins (D. Nev.).

Facts: Katakis was suspected of bid rigging. Id. at *1. He received a notice that his bank records had been subpoenaed. Id. Two days later, he purchased and downloaded “DriveScrubber 3.” Id. “Once a file is overwritten by DriveScrubber, it is impossible to retrieve it.” Id. That program was installed on two PCs (and an email server) associated with Katakis. Id. 

The government later seized those three computers, as well as a fourth. Id. at *2. On the fourth PC, the feds discovered ten incriminating emails between Katakis and a business partner. Id. Though expected to be on the three “DriveScrubber” computers, those incriminating emails were not in fact found. Id. 

Katakis was charged with obstruction under 18 USC § 1519. Id. At trial, the government’s forensic expert (Special Agent Scott Medlin) opined that DriveScrubber was used to delete “deleted” incriminating emails from the PC’s free space. Id.

A defense expert showed that was impossible: Medlin conceded he was wrong. “By the time of its closing argument, the Government’s primary theory of the case had collapsed.” Id. at *3. Although the jury convicted, but the district court granted the defense motion for judgment of acquittal. Id. at *4.

Issue(s): “We have only one question regarding the sufficiency of the evidence before us: whether the Government carried its burden to show actual destruction or concealment. There is no dispute that there was sufficient evidence for a rational juror to conclude that the Government satisfied the third element, that Katakis intended that his actions would obstruct the investigation into the bid-rigging scheme. A rational juror also could have concluded that Katakis knew or believed that his actions could destroy or conceal the ten incriminating emails. However, the Government failed to charge Katakis with attempted obstruction . . . . . Therefore, in order to secure a conviction, the Government was required to prove that Katakis actually destroyed or concealed ‘electronic records and documents.’” Id. at *5.

Held: “In light of Medlin’s retraction, there was no evidence upon which a reasonable juror could conclude that Katakis used DriveScrubber to irretrievably overwrite (that is, destroy or conceal) the ten incriminating emails from the free space of any of the computers. The theory that the Government presented in its case-in-chief cannot support Katakis’s conviction.” Id. at *5.

Of Note: The Court is, fair to say, unimpressed with this prosecution and its “half baked” theories. Id. at *6. Agent Medlin opined that DriveScrubber could have been used to delete email transmission logs from the three seized PCs. Id. at *5-*6. However, Medlin didn’t testify that the transmission logs actually entered free space, where DriveScrubber could have, well, scrubbed them. Id. at *6. In fact, the “full theory presented . . . did not crystallize as an argument until this appeal.” Id.  

If there ever was a case proving the need for defense experts, Katakis is it. In Katakis that expert was Don Vilfer of Capitol Digital– see bio here.

How to Use: Section 1519 authorizes up to twenty years for anyone who “alters, destroys . . . conceals . . .  any record . . . with the intent to . . . obstruct . . . the investigation.” See id. at *4. Is deleting an email in an email program "destroying" or "concealing" a record triggering Section 1519? 

Nope.  

In a very tech-savvy analysis, Judge Smith works through what happened when Katakis hit the “delete” button in his email program. Id. at *9. The incriminating emails weren’t, of course, deleted: they were just moved to the “deleted items” folder. Id. In this case, “removing an email from one folder and placing it another was not sufficient to actually conceal it.” Id. at *11. 

It is a great holding and worth a close read when a client’s “deleted items” email folder have an unfortunate email or two (moved there as the feds start sniffing around).

                                               

For Further Reading: The email server had its data wiped: what does that reveal about intent? 

Can the data be recovered? 

For an interesting discussion of the tech (in a higher-profile case), see The FBI Has Clinton’s Email Server. Now What? available here.

Image of DriveScrubber 3 from http://ecx.images-amazon.com/images/I/51vq%2B4M9C8L.jpg

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

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Case o' The Week: Better to Lose than Tie -- Flores-Perez and Interlocutory Appeal of Rule 29 After Hung Jury

Cirilio Flores-Perez had the bad luck to hang his federal jury, 9-3 for acquittal.

If he wanted review of the denial of his Rule 29 motions, explains the Ninth, he should have gone for a conviction. United States v. Flores-Perez, 2011 WL 2450984 (9th Cir. June 21, 2011), decision available here.


Players: Hard-fought and clever appeal by San Diego Assistant Defender Devin Burstein. Decision by Senior District Judge Mills (C.D. Illinois).

Facts: Flores-Perez hung a federal jury on a one-count indictment alleging an attempt to transport an undocumented alien. Id. at *1. (Nine to three in favor of acquittal, by the way). Id. The district court denied his Rule 29 motions brought at the close of the government's case and after the jury hung. Id.

The government then re-indicted with four counts, including the "attempt count." Id. Flores moved the district court to dismiss the superseding indictment on double jeopardy grounds. Id. His motion was denied, and Flores-Perez appealed. Id.

The government challenged the appeal for lack of jurisdiction. Id.

Issue(s): [Ed. note: The ‘84 Supreme Court decision Richardson v. United States, 468 U.S. 317 (1984), effectively eliminated defense double jeopardy challenges on interlocutory appeal, after a mistrial or hung jury.]

“[U]nder Richardson, double jeopardy claims asserting termination of jeopardy due to a hung jury and associated mistrial are no longer colorable.” Id. at *2. "Flores argues that Richardson and its progeny are not controlling because he is appealing the denial of his motion to dismiss the superseding indictment, not his Rule 29 acquittal motion.” Id.

Held: “We hold that the filing of a superseding indictment after mistrial does not raise a colorable double jeopardy claim.” Id. at *3. “[W]e lack jurisdiction to review the district court’s denial of the motion for acquittal.” Id. at *4.

Of Note: Senior, out-of-circuit, district Judge Mills creates a new Ninth rule in this case. The San Diego Defender cleverly argued that it wasn’t challenging the Rule 29 motion (barred on interlocutory appeal); it was challenging the superseding indictment that followed the jury hang. Id. at *3-5. Judge Mills rejects the challenge and makes a new Ninth rule along the way: “the issuance of a superseding indictment does not nullify the original indictment, and . . the issuance of a superseding indictment does not terminate the original jeopardy.” Id. at *4.

This is one of those simple new rules that has complex ramifications. Judge Mills favorably quotes authority that explains that all a superseding indictment does is create another choice for the government to proceed upon a trial – the original indictment, or the superseding. Seems the prudent move for the defense (and the district courts) is to now insist that earlier indictments be dismissed by the government when a superseding indictment is obtained, to prevent prosecutors from leap-frogging among charges before trial.

How to Use: Consider this case in the context of Allen charges. The decision on whether to ask for an Allen charge is always a tough choice for the defense. Remember than an Allen charge is that “dynamite” jury instruction designed to push a hung jury towards unanimity. Flores-Perez reminds us why this is such a hard call. If you’ve lost a truly righteous Rule 29 motion in the district court and end up with a hung jury and mistrial, you can kiss your appeal good-bye.

Is it actually better, in that setting, to get the Allen charge, risk the conviction, and preserve the right to appeal the denial of the Rule 29 motion? Flores-Perez is a good cases to tuck next to the Allen instruction tab on your trial binder, as a reminder of the appellate issues at stake.

For Further Reading: The Supreme Court’s Richardson decision created a particularly galling rule. To see the Richardson rule in action, consider James: a case out of the ND of Cal.

In the first round of this bank robbery case, the government flat-out forgot to introduce proof of FDIC insurance. The district court erroneously denied the Rule 29 motion, and the jury convicted on three out of four counts – hanging on the fourth. Jeopardy attached, the bank robber appealed, the denial of the Rule 29 was reversed by the Ninth, the defense celebrated. United States v. James, 987 F.2d 648, 652 (9th Cir. 1993).

But, as noted above, on the fourth count the jury hung. Because jeopardy didn’t attach, no interlocutory appeal was available and the bank robber never got the FDIC / Rule 29 issue from the fourth count before the Ninth. See United States v. James, 109 F.3d 597 (9th Cir. 1997). James was tried again and convicted. Id. at 598. Hence, after Richardson, the clearly-guilty – who have the good fortune of getting convicted – enjoy appellate review of their Rule 29 motion. Defendants facing weaker proof, who hang their juries, are out of luck in the Ninth.


"Hung jury" logo from http://www.hungjurytheband.com/


Steven Kalar, Senior Litigator N.D. Cal FPD. Website at www.ndcalfpd.org

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