Case o' The Week: Marriage is a Dangerous Thing - Mayea-Pulido and Equal Protection Challenges to Immigration Statutes

  Defendant guilty, because parents remained married.

United States v. Mayea-Pulido, 2020 WL 35963 (9th Cir. Jan. 3, 2020), decision available here.

Players: Decision by Judge Friedland, joined by Judge M. Smith and DJ Bastian. 

  Hard-fought appeal by AFD Kara Hartzler, Fed. Defenders of San Diego, Inc.

Facts: Mayea-Pulido, the son of unmarried Mexican nationals, was born in Mexico. Id. at *2. He and his parents moved to the U.S. shortly after his birth. His parents married, and his father became a naturalized U.S. citizen. 

   Mayea became a lawful permanent resident (“LPR”), but never applied for citizenship. His mother, who remained married to his father, also never applied for citizenship. Id. 

  At the time Mayea-Pulido turned 18, the immigration statute conferred automatic citizenship if both of the child’s parents had previously naturalized. Id. There were exceptions: for example, in the event of separation one naturalized parent sufficed. Mayea did not meet any of these exceptions, and he remained a non-citizen. Id. 

  As he grew older, Mayea-Pulido was convicted of crimes, his LPR status was revoked, and he was removed and reentered multiple times. Ultimately he was charged with a § 1326 offense and went to trial. Id. Mayea-Pulido moved for judgment of acquittal, arguing that the immigration statute was unconstitutional. Id. at *3. He argued that he would have been a citizen if his married parents had been legally separated (where he would have obtained citizenship from his father). Id. 

  His motion was denied, he was convicted, and appealed. Id.

Issue(s): “Luis Mayea-Pulido challenges his conviction for illegal reentry, which he contends is invalid because he is not an ‘alien’ who could be guilty of that crime. Mayea argues that he should have automatically become a . . . citizen as a result of the naturalization of one of his parents prior to the reentry in question. But because his parents were married, and the derivative citizenship statute at 8 U.S.C. § 1432(a) (1996) required married parents to both naturalize to confer citizenship to their child, he did not become a citizen. Mayea argues that, by making his parents’ marital status a factor in the derivative citizenship determination, § 1432(a) violates the Constitution’s equal protection guarantee.” Id. at *1.

  “In Mayea’s telling, this statutory scheme impermissibly discriminates on the basis of parental marital status by allowing the children of legally separated parents to become U.S. citizens more easily than the children of non-separated parents.” Id. at *4. 1

Held: “We disagree and affirm Mayea’s conviction.” Id. at *1.

Of Note: The Ninth previously rejected a similar challenge. See Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003). Id. at *4. Why another opinion now? Because AFD Kara Hartzler cleverly renewed the attack after Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017). Id. In Morales-Santana, SCOTUS rejected a statutory scheme that imposed different requirements on unwed mothers, and unwed fathers, for conferring citizenship of a child born abroad. Id. at *4. Because the statute differentiated based on gender, the Court applied heightened scrutiny and found an equal protection violation. Id. at *5.

  The Ninth, unfortunately, was unpersuaded: applying rational basis review to this statute, it rejected this equal protection challenge. Id. at *8.

How to Use: In Barthelemy, immigration statutes were given deference and subject to mere rational basis review. In Mayea-Pulido, Judge Friedland agrees that approach now longer flies: immigration statutes can now be subject to heightened scrutiny – a useful opening for future EP challenges. Id. at *5-*6.

                                               

For Further Reading: Remember the remarkable “Safe Schools” litigation? San Francisco has finally agreed to settle civil claims brought by the victims of these race-based arrests, made in San Francisco's Tenderloin. See, San Francisco Settles Suit Over Racially Biased Drug Arrests for $225k, available here. 

  Interesting that this civil case settles just as waves of Hondurans are now targeted for small-scale drug scales in the new “Federal Initiative for the Tenderloin.” See press release on “FIT” here. 

Image of wedding cake topper from https://www.amazon.com/Wedding-cake-topper-couple-little/dp/B06VVZF1VC

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

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Case o' The Week: No Date, No Time, yet J/X Fine! - Karingithi, Pereira, and I.J. Jurisdiction from a deficient "notice to appear"

A: “Huh. I honestly can’t tell.”

Q: What is the date and time of your immigration removal hearing?

(Even “Carnac the Magnificent” would be stumped by the “notice to appear” just upheld in the Ninth).

  Karingithi v. Whitaker, 2019 WL 333335(9th Cir. Jan. 28, 2019), decision available here.

Players: Decision by Judge McKeown, joined by Judges W. Fletcher and Bybee.

Facts: Karingithi, a native of Kenya, overstayed her tourist visa in the U.S. Id. at *1. She ultimately received a “notice to appear with the immigration court.” This notice had the location of the hearing, with a time and date “to be set.” Id. at *2. On the same date she was also issued a “notice of hearing,” which had the time and the date of the hearing. Id. 

  Karingithi conceded removability, but filed an asylum application, sought withholding of removal, and protection under the Convention Against Torture. She also sought, in the alternative, voluntary departure. Id. 

  After five years, these efforts were all denied and Karingithi was ordered removed. Id. She then challenged the IJ’s jurisdiction over her removal proceedings, and the BIA’s decision. Id.

Issue(s): “We consider whether the Immigration Court has jurisdiction over removal proceedings when the initial notice to appear does not specify the time and date of the proceedings, but later notices of hearing include that information.” Id. at *1.

Held: “This question is governed by federal immigration regulations, which provide that jurisdiction vests in the Immigration Court when a charging document, such as a notice to appear, is filed. 8 C.F.R. §§ 1003.13, 1003.14(a).” Id.

  “Because the charging document in this case satisfied the regulatory requirements, we conclude the Immigration Judge (‘IJ’) had jurisdiction over the removal proceedings. This reading is  consistent with the recent interpretation of these regulations by the Board of Immigration Appeals (“BIA” or the “Board”), see Matter of Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), and the only other court of appeals to reach this issue, see Hernandez-Perez v. Whitaker, 911 F.3d 305, 310–15 (6th Cir. 2018).” Id.

Of Note: This decision is important in the criminal context because of its Pereira ramifications. See Pereira v. Sessions, 138 S.Ct. 2105 (2018). In Karingithi, Judge McKeown attempts to distinguish Pereira by noting that the SCOTUS decision dealt with the “stop-time” rule, and this case addresses whether the IJ had jurisdiction after an ambiguous notice to appear was filed. Id. at *2. She explains, “Unlike the stop-time rule, the Immigration Court’s jurisdiction does not hinge on § 1229(a), so Pereira’s narrow ruling does not control our analysis. We conclude that the IJ had jurisdiction over Karingithi’s removal proceedings and that the Board properly denied her petition.” Id.

  Karingithi is a troubling decision for those mounting Section 1326(d) challenges, but, as urged below, preserve challenges. Efforts to seek review are underway.

How to Use: The FPD brain trust has bevvy of beefs with the Karingithi decision (as do a slew of district courts, that have issued thoughtful analyses arriving at the opposite outcome).

  En banc and amicus efforts are underway.

  In the meantime, preserve Pereirai challenges through Section 1326(d) motions. While the Kiringithi skirmish may have been lost for now, this jurisdictional battle continues.

                                               

For Further Reading: Last week we noted that three of President Trump’s Ninth Circuit candidates -- who did not have California blue slips -- had not been re-nominated in the new year. That changed last Wednesday. Attorneys Daniel Bress, Daniel Collins, and Kenneth Lee, were all re-nominated. See White House Press release here. 

  What has not changed are the positions of California’s two Senators. On the same day as the re-nomination announcement, Senators Feinstein and Harris issued a press release stating their opposition to these three nominees. See Senator Feinstein's and Harris' press release here. 

The Hon. Senators Graham and Feinstein

   Will the Judiciary Committee Chair, Senator Lindsey Graham, go forward on these three nominations, over the objections of a Senator Feinstein, a ranking member of the committee? Appears likely. See Roll Call article here.  

Image of  “Carnac the Magnificent” from https://en.wikipedia.org/wiki/Carnac_the_Magnificent

Image of the Senators Graham and Feinstein from https://www.sacbee.com/latest-news/article225349515.html

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

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Case o' The Week: Ninth Rejects Gov't's Optical Illusion - Lorenzo v. Sessions, Cal H&S 11378 and Federal "Controlled Substances"

  For Alain Baxter, and for Elisio Atenia Lorenzo, isomers make all the difference.

Lorenzo v. Sessions, 2018 WL 4100360 (9th Cir. Aug. 29, 2018), decision available here.

British alpine skier Alain Baxter, disqualified because of a (legal) isomer of meth

Players: Decision by Judge Fisher, joined by C.J. Thomas and Judge Bea.

Facts: Lorenzo, a citizen of the Philippines, was convicted of possession of meth for sale in violation of Cal. Health and Safety Code § 11378. Id. at *2.

  Homeland Security initiated removal proceedings. Id. The removal relied on the characterization of Lorenzo’s priors as “relating to a controlled substance,” as defined (by cross-references) in the INA. Id. at *2.

   Lorenzo moved to terminate proceedings, arguing that the Cali definition of meth was broader than the Fed definition of “controlled substances,” because the federal Controlled Substance Act (“CSA”) included only optical isomers of methamphetamine. California’s definition included both optical and geometric isomers of methamphetamine. Id. at *3.

  The IJ rejected Lorenzo’s challenge, the BIA affirmed, Lorenzo appealed.

Issue(s): “We recognize that, in applying the first step in the categorical approach in this case, we have had to examine a disjunctive list within another disjunctive list. At the more general level, we must examine the disjunctive list of drug types – e.g., cocaine, heroin, methamphetamine – covered by California law. . . . At the more specific level, however, California law also includes disjunctive lists within a drug type, listing, for example, several types of methamphetamine – methamphetamine, its salts, its optical and geometric isomers, and salts of its isomers.” Id. at *7 (citation omitted).

Held: “Although we may not have expressly addressed this situation before, it is apparent that, when this situation arises, we must conduct a Taylor analysis with respect to both disjunctive lists.” Id.

  “We hold Lorenzo’s methamphetamine convictions under §§ 11378 and 11379(a) do not qualify as grounds for removal under 8 U.S.C. § 1227(a)(2)(B)(i).” Id. at *3.

  “In sum, California law demonstrates that optical and geometric isomers of methamphetamine are alternative means of committing a single controlled substance offense under California law. The government does not argue otherwise. The overly broad methamphetamine element, therefore, is not divisible. Because the California statute is overbroad and not divisible with respect to the overbroad element, we do not apply the modified categorical approach to determine whether Lorenzo’s convictions involved a type of methamphetamine covered by the CSA.” Id. at *8.

Of Note: This is a huge win for Benjamin Aiken and his Orrick colleagues, and the immigration bar is excited at prospects for relief. Lorenzo, however, has important ramifications for criminal defense as well. Most obviously, § 1326 clients with H&S § 11378 priors now have a challenge to their prior removals. 

  (And other opportunities beckon . . . .)

How to Use: If H&S § 11378 (meth) doesn’t qualify as a “controlled substance” for the INA, does it qualify as a “controlled substance” for the Guidelines (Career Offender, § 2K2.1, etc.), or for a § 851 federal prior?

    Nope (we think).

  In United States v. Leal-Vega, 680 F.3d1160, 1167 (9th Cir. 2012), Judge M. Smith explained that “controlled substances” in the Guidelines refer to the federal drug schedules (the Controlled Substance Act, or “CSA.”). That’s the very same CSA analyzed by Judge Fisher in Lorenzo. 
  Big red flag for clients with H&S § 11378 priors: they may not be Career Offenders, may have substantially lower felon-in-possession guidelines, and may not be “prior-able” under 21 USC § 851.   

                                               

For Further Reading: As Lorenzo illustrates, “categorical analysis” – huzzah!

  In a worrisome development, however, the Sentencing Commission is mulling whether to instead look at “actual conduct” for priors. See final notice here, Priority Three.

  Although Commissioners Barkow and Breyer both have reservations, see hearing video here, at 7:00 – 13:55, a Commission “examination” of the categorical analysis is nonetheless underway.

 Imagine the mischief we’ll make with mini-sentencing trials in federal court, bickering over decades-old evidence from dusty old state proceedings!  

Image of "old evidence" from https://www.youtube.com/watch?v=a2buTsEp13M 

Image of Alain Baxter from http://www.chm.bris.ac.uk/motm/methamphetamine/methh.htm

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

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Case o' The Week: Defense Loses the Match Game - Verduzco-Rangel, Cal H&S 11378, and Agg Felonies

 What if you think you’re selling meth, but the drug is really Chorionic Gonadotropin?

  No worries, from the Feds (unless, of course, you’re an alien).

United States v. Verduzco-Rangel, 2018 WL 1220747(9th Cir. Mar. 9, 2018), decision available here.

Players: Decision by visiting Sr. D.J. Rakoff, joined by Judges M. Smith and Friedland.

Facts: Verduzo-Rangel was convicted of 8 USC § 1326. Id. at *1. The agg felony was a prior conviction for possession for sale of meth, in violation of Cal. Health & Safety Code § 11378. Id.

  Verduzo-Rangel’s underlying indictment and plea agreement established that he had been previously convicted of trafficking meth (a controlled substance under both state and federal law). Id. at *2.

Issue(s): “Verduzco now argues that his conviction was not in fact an aggravated felony. . . .” Id. at *1.

  “For purposes of this appeal, the Government concedes the first two prongs [of the collateral attack requirements of § 1326(d)], so the only question is whether the removal was fundamentally unfair.” Id.

  “Verduzco . . . argues that his California conviction is not categorically an aggravated felony because section 11378 remains broader than federal law as to defendants’ beliefs about the kind of substance in which they were trafficking. Under federal law, a person actually selling cocaine who thought he was selling baking soda does not possess the required mens rea to be guilty of drug trafficking . . . . Under section 11378, defendants can be found guilty even if they were mistaken about what specific substance was being trafficked, as long as the substance in which they intended to traffic is in fact controlled under California law . . . .  This means that a person who believed she was trafficking in chorionic gonadotropin but was in fact trafficking in methamphetamine would violate California law but not federal law. Verduzco argues that section 11378 is thus not categorically a drug trafficking crime under the second route laid out in Rendon.” Id. at *2 (internal quotations and citations omitted).

Held: “Rather than contesting this point, the Government argues that it is irrelevant because a conviction under section 11378 is an aggravated felony under the first route, at least where, as here, the defendant was trafficking a substance (methamphetamine) that is also controlled by federal law. We agree, and thus need not consider whether Verduzco’s conviction would also qualify as an aggravated felony under the second route identified in Rendon.” Id. at *3 (emphasis added).

Of Note: The core issue in Verduzco is a fight over Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir. 2008).

  Verduzco argued that the first route of Rendon (that is, a state offense is an agg felony if it contains a trafficking element) should include the mens rea element found in federal law: that a defendant has to intend to traffic a substance controlled by federal law. Id. at *3. It is an interesting argument, and Judge Rakoff labors to reject it (and to distinguish the Ninth’s recent decision in Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017)). Id. at *3 & n.3.

  The result? In the Ninth Circuit, a state drug trafficking offense can be a “categorical match” for the “generic” federal drug trafficking requirement, even if the state statute prohibits a drug that isn’t controlled by the feds. Id. at *3.

How to Use: Despite the rather confusing holding of Verduzco, note an important limitation. In this case, the record established that the defendant had actually been convicted of trafficking meth. Judge Rakoff expressly includes this limitation in the holding: “where the record of conviction establishes that the substance involved is federally controlled.” Id. at *4. 

  In a case where it is unclear what substance was involved in a § 11378 prior, there might remain some play in an agg felony challenge.

                                               

For Further Reading: Be honest - do you ever grapple with ambiguous language in a Guideline, sigh, and wonder “why the hell did [the Sentencing Commission] do it this way? It’s ridiculous!”

  You’re in excellent company -- Judges Berzon and Callahan feel precisely the same way (the above is a quote!)

The Nickles III Ninth Circuit panel

  For a remarkably candid insight into the minds of frustrated appellate judges drowning in categorical goo (and a very important Cal. Penal Code § 211 discussion), see the recent Nickles, III argument, available here, at 10:16.

Image of chorionic gonadotropin from https://www.testosterone.me/hcg-injections

Image of Judges Wallace, Berzon, and Callahan, and of AFPD Hanni Fakhoury, from the Nickles III argument at https://www.youtube.com/watch?v=EbutugiR21o&t=0s&index=51&list=UUeIMdiBTNTpeA84wmSRPDPg

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

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Case o' The Week: Of Weird Hairdos (and Batson, too) - Hernandez-Quintania and Prima Facie showings for Batson challenges

 “On its face” (prima facie), an AUSA struck two minority jurors.

  (But turns out the Ninth wants a little more facie in its prima).

    United States v. Hernandez-Quintania, 2017 WL 5103671(9th Cir. Nov. 3, 2017), decision available here.

Players: Decision by visiting Chief D.J. Freudenthal, joined by Judges W. Fletcher and Ikuta. 

  Hard fought appeal by Ass’t Fed. Defender Doug Keller, Federal Defenders of San Diego, Inc.

Facts: Hernandez-Quintania, an undocumented alien was removed repeatedly to Mexico then found in California. Id. at *1.

  At the § 1326 trial, half of the venire “appeared to be minorities,” (said the court). The defense struck four minorities. Id. at *5.

  When the AUSA struck two minority jurors the defense raised a Batson challenge. Id.

  (Recall that the Supreme Court has explained in Foster v. Chatman that Batson is a three-step process:

   1. A prima facie showing by the defense;

   2. If that showing is made, a race-neutral basis for striking required from the government; then

   3. A judicial finding on whether there was purposeful discrimination.)

Id. at *3.

  The court stopped at Batson Step One, and found that the defense had not made a prima facie case. In the course of its Batson analysis, the district court opined that it was a “very mixed” jury composition, including “One guy, Number 3” who “has a weird hairdo from my perspective.” Id. at *4.

  Hernandez-Quintania was convicted.

Issue(s): “Hernandez–Quintania challenges the district court’s finding that he did not make a prima facie showing for his Batson challenge. . . .  Id. at *3.   

  “Hernandez–Quintania argues the district court committed a structural error when it impermissibly speculated as to the race-neutral reasons the prosecutor might have had for striking the juror. [He] also argues the district court misapplied the standard at step one.” Id. at *4.

Held: “Hernandez–Quintania did not argue that the two jurors who appeared to be minorities were questioned differently, that the government exercised a pattern of striking apparent minority panel members, that the government struck a large number of panel members from the same racial group, or that the jury composition was disproportionate because of the strikes. In fact, the record demonstrates that the jury contained six apparent minority jurors and that Hernandez–Quintania struck more minority jurors than the government. The totality of the circumstances does not raise an inference that the government’s challenges were racially motivated.

  Hernandez–Quintania also argues the district court erroneously ‘raised’ the prima facie bar by stating, ‘I have to be convinced that it's at least—I won't say likely, but plausible that he was removed solely because of his minority status. And here, I couldn't reach that conclusion at all[.]’ This passing remark does not alter the record, which supports the district court's finding that Hernandez–Quintania failed to offer any support or argument that the government's challenges were racially motivated.” Id. at *5.

Of Note: A different, lead issue in Herndandez-Quintania relates to § 1326 defenses. At trial an agent made reference to the fact that way back in ’04, Hernandez-Quintania had applied for admission. Id. at *2. The government did not, however, introduce at trial any evidence of the outcome of that application, or that the defendant had not reapplied for admission in the removals and reentries after 2004. Id. On appeal, the defense argued these failures of proof barred conviction on this 2016 “found in” case. Id.

  In what appears to be a holding of first impression for the Ninth, visiting Chief D.J. Freudenthal concludes that the “consent to reapply” must come after the most recent deportation.” Id. at *3.  Another rule for the tome of remarkably complex immigration / reentry jurisprudence.

How to Use: Defense counsel played the cards that they drew in this case, but the opinion illustrates the dangers of the fuzzy “totality” review of Batson challenges on appeal. If possible, sharpen initial Batson challenges with something more than just the race of the struck juror to sharpen that prima facie showing.     

                                               

For Further Reading: Batson remains as sadly topical as ever. Last June, the California Supreme Court overturned attempted murder convictions for the exclusion of Latinos from a Kern County jury (for the first time in sixteen years!) See California’s top court overturns convictions because prosecutor excluded Latinos from jury, available here.

Image of hairdo from https://i.ytimg.com/vi/nI_lXmvbV9A/hqdefault.jpg

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

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Case o' The Week: 1 (Jury Note) + 0 (Defense counsel) = 1 (Remand): Bladimir Martinez, Jury Notes, and Structural Error

The Honorable Judge Kim Wardlaw

"You have a problem with that?"

(Because, it turns out, the Ninth does as well). 

 United States v. Bladimir Martinez, 2017 U.S. App. LEXIS 4270 (9th Cir. Mar. 10, 2017), decision available here.

Players: Decision by Judge Wardlaw, joined by Judges Reinhardt and ND Cal District Judge Ronald Whyte. 

 Big win for AFD Doug Keller, Federal Defenders of San Diego, Inc.

Facts: Martinez was found just north of the border. Id. at *3-4. He was charged with 8 USC § 1326. Id. at *3. Specifically, he was charged with having been removed “subsequent to December 3, 2010,” the date of an agg felony conviction. Id.

  The jury was not instructed that it had to make a finding about the removal date, or that this removal date had to be proved beyond a reasonable doubt. Id. at *5.

  The jury wrote a note, asking about a portion on the verdict form that listed the December date. Id. at *5-*6. Without telling counsel, the judge wrote back, “It is a matter for the court to consider, not the jury. The jury has to consider whether the defendant was deported or removed after that date.” Id. at *6.

  Eight minutes later the jury reported it had reached a (guilty) verdict. Id.

  When counsel returned, the court revealed the earlier question and explained, “I didn’t think it was important to bring [counsel] back in to answer this question, so I answered it myself . . . . So you know, if you have a problem with that, I guess you’ll take it up with the Court of Appeals.” Id. at *6.

  “Defense counsel apparently had a problem with the court’s decision not to consult with counsel before answering the jury’s question, and this is the resulting appeal.” Id.

Issue(s): “[W]hether the judge's ex parte response to a mid-deliberations jury note about the significance of an Apprendi sentencing factor was structural in nature[?]” Id. at *17-*18.

Held: “We need not decide in this case . . . because we find that the constitutional error was not harmless beyond a reasonable doubt . . . .” Id.

   “The court’s failure to consult Martinez’s counsel before responding to the jury note violated [Fed. R. Crim. Proc. Rule 43]. . . and the Sixth Amendment. Because much of the government’s documentary evidence concerning Martinez’s prior removal contained demonstrable errors, and because defense counsel, had she been consulted, would have specifically requested that the trial court instruct the jury that the government was required to prove the removal date beyond a reasonable doubt, the district judge’s error was constitutionally harmful. We therefore vacate Martinez’s sentence and strike the special finding. On remand, the government may elect to retry the removal date issue before a sentencing jury, or it may request that the district court resentence Martinez under the two-year sentencing provision in 8 U.S.C. § 1326(a).” Id. at *1.

  “[T]he district court judge expressed views . . . that reasonably could lead the defendant to question the presence of bias. Because we do not think that the district court judge would be able to put these views out of his mind and in order to preserve the appearance of justice, upon remand the Clerk . . . shall reassign this case to a different district court judge . . . .” Id. at *28.

Of Note: The Court reversed after a jury trial, so why wasn’t the conviction knocked, instead of the sentence?

  Apprendi.

  The timing of the removal escalated the exposure on this case from two, to twenty, years. Id. *3. Martinez was found guilty of the offense – being found in the U.S. after removal – but because the jury question bore on this timing issue (removal after agg felony?) this was Apprendi sentencing error. The case was accordingly remanded for a sentencing finding by a jury, or (preferably!), imposition of the two-year max sentence. Id. at *27 & n.7.

How to Use: The hairy issue at the heart of Martinez was Cronic structural error. Id. at *14. Judge Wardlaw carefully works through this analysis, concluding that the Ninth “seems to have muddled the analysis of which trial stages are ‘critical stages’ so as to trigger Sixth Amendment rights and which are ‘critical stages’ so that the absence of counsel during the stage is structural error.” Id. at *14 & n.4.

  Though the Court dodges the ultimate issue here, Martinez is nonetheless a useful decision to at least identify the competing authority on structural error.                                              

For Further Reading: The Brave Little Tailor has nothing on POTUS: last week, President Trump fell 46 in one blow.

 For a list of the U.S. Attorneys asked to resign by the new Administration, with separate links to reporting articles, see Wikipedia entry here. 

Image of the Honorable Judge Kim Wardlaw from https://pbs.twimg.com/media/B0pTNhDIQAAaYJz.jpg

Image of Mickey Mouse, as the Brave Little Tailor, from https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiHFBnplzksFOx5vnVqJgS9HLxpivC2v3XYJkcT15Hj3y3iA7thXpG9TL7iYsCC5NqiB7DslS0IXYa4AZkrWfvj15holtAhEQcXHAwc-KX7tVsD8dF4abATpBQjj9DXHOrpKN0ivw/s1600/BIG1_--brave-little-taylor-1938-2_jpg.jpg 

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

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