Case o' The Week: Defending the government's conviction (when the government won't) -- Arpaio and Fed. R. Crim. Proc. 42 Special prosecutors

 A convicted felon, pictured below, has again lost in the Ninth Circuit.

 United States v. Arpaio, 906 F.3d 800 (9th Cir. Oct. 10, 2018) (Ord. denying rehearing en banc), concurrence and dissent available here. 

Players: Concurrence in denial of rehearing en banc by Judge W. Fletcher, joined by Judges Graber, Gould, Paez and Christen. Statement of agreement by Senior Judge Tashima.

  Dissent from denial of rehearing en banc by Judge Callahan, joined by Judges Bybee, Bea, and Ikuta. Statement of agreement by Senior Judge Tallman.

Facts: Former Sheriff Joe Arpaio violated an order of the district court. Id. at 801. The United States successfully prosecuted Arpaio for criminal contempt of court, on July 31, 2017. Id. In August 2017, prior to sentencing, President Trump pardoned Arpaio. Id. Arpaio then moved to dismiss the prosecution, and vacate the conviction. The district court granted the motion to dismiss the prosecution, but denied the motion to vacate the conviction. Id. Arpaio appealed, and the government told the Ninth that it did not intend to defend the district court’s order. Id.

  The motions panel (Judges Fletcher, Tashima, and Tallman) issued an order appointing a private attorney as a special prosecutor “to provide briefing and argument to the merits panel.” Id.; see generally blog entry here. 

  A judge of the Ninth Circuit called for rehearing en banc. Id. at 801.

Issue(s): Should the motion panel’s order appointing a special prosecutor be reheard en banc?

Held: “A vote was taken, and a majority of the non-recused active judges of the court failed to vote for en banc rehearing. Fed. R. App. P. 35(f). Rehearing en banc is DENIED.” Id. at 801.

Of Note: NorCal is the epicenter of the national “separation of powers” battle. In his concurrence, Judge Fletcher explains that this was a routine order – just part of the court’s inherent power that had been recognized by the Supreme Court before Fed. R. Crim. Proc. 42 was amended to make it explicit. See id. at 802 (discussing Young v. United States ex rel. Vuitton, 481 U.S. 787, 793 (1987).

  Judge Callahan disagrees: “The executive branch’s role is to prosecute. Our role is to adjudicate. When we close our eyes to the constitutional limits of our power, we are bound to veer out of our lane, and there’s no telling what else we might do simply because ‘we see no reason why’ not. The prosecutors here intend to do their job—we should let them and worry about doing our own job.” Id. at 811 (Callahan, J., dissenting from denial of rehearing en banc).

   This debate resonates with more-recent events. President Trump has harshly criticized an immigration decision of an “Obama judge,” sparking a rare public defense of the federal judiciary by Chief Justice Roberts. See article here. 

  Ironically, the President incorrectly blamed the Ninth Circuit for this courageous asylum decision. Who was the district judge who actually issued a temporary restraining order against the President’s new asylum rule?

The Hon. District Judge Jon Tigar, Northern District of California

 The Hon. Judge Jon Tigar, of the Northern District of California. Id.

How to Use: Does the Judiciary’s frustration with the Executive inure to the benefit of our clients? Well, it can’t hurt.

  In 2004 and 2005, SCOTUS’ frustration with Congress and politically-driven guidelines (particularly after the 2003 PROTECT Act) arguably resulted in Blakely and Booker and “advisory” guidelines. DOJ grumbled that the number of in-guideline sentences promptly dropped. See “Fact Sheet” here.  

  This history of the Judiciary's response to the encroachment of the other branches is interesting to mull, as the Judiciary now considers challenges to Acting Attorney General Matthew Whitaker. See articles here, and here.         

                                       

For Further Reading: Before Thanksgiving, President Trump continued a long tradition and pardoned two turkeys. 

  In another jab at our circuit, the President warned that ‘he couldn't promise the turkeys their pardons ‘won't be enjoined by the Ninth Circuit (Court of Appeals).’” See article here. 

Image of former Maricopa County Sheriff Officer Joe Arpaio from https://longreads.com/2017/08/28/the-collected-crimes-of-sheriff-joe-arpaio/

Image of the Honorable District Judge Jon Tigar from https://www.law.com/therecorder/2018/11/19/federal-judge-sharply-questions-trumps-shift-on-asylum/

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

.

Case o' The Week: The Ninth Smokes Marijuana Argument - Nixon and the Scope of the Marijuana Rider to Appropriations Bill

Congress pays the Court to impose marijuana conditions on supervision.

Congress pays Probation to report marijuana violations of supervision.

Congress pays us to defend marijuana violations of supervision.

(But who has Congress paid to prosecute marijuana violations?)

  United States v. Nixon, 2016 WL 6068201 (9th Cir. Oct. 17, 2016), decision available here.

Players: Per curiam decision, by Judges Trott, Owens, and Friedland.

Facts: Nixon was sentenced to three years of probation for drug charges. Id. at *1. “As a condition of probation, the district court required that Nixon refrain from unlawful use of a controlled substance and submit to periodic drug testing.” Id. Congress then enacted a rider on an appropriation bill that prohibited the use of federal funds to “prevent States [that had enacted medical marijuana laws] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Id. Nixon moved the court to modify his conditions of probation, and permit him to use medical marijuana in compliance with California’s Compassionate Use Act. Id. The court denied the motion, concluding that the rider may have impacted DOJ – but had “no effect on the Court or the Probation office, which is an arm of the Court.” Id. Nixon appealed.

Issue(s): “[W]hether a congressional appropriations rider that prohibits [DOJ] from using certain funds to prosecute individuals for engaging in conduct permitted by state medical marijuana laws impacts the ability of a federal district court to restrict the use of medical marijuana as a condition of probation.” Id. at *1.

Held: “We hold that it does not.” Id. “Nixon’s reading is not supported by the plain language of the appropriations rider and is foreclosed by our precedent. On its face, the appropriations rider restricts only the DOJ’s ability to use certain funds on particular prosecutions during a specific fiscal year. See United States v. McIntosh, . . . 2016 WL 4363168, at *11 (9th Cir. Aug. 16, 2016) (observing that the restriction on DOJ’s use of the appropriated funds is ‘temporal’ in nature.) Accordingly, we have warned that individuals still face the possibility of prosecution under the CSA . . . . Accordingly, the district court did not abuse its discretion by refusing to modify the conditions of Nixon’s probation to allow him to possess and use marijuana for medical purposes in violation of federal law.” Id. at *2-*3.

Of Note: In August, we hailed Judge O’Scannlain’s McIntosh decision on medical marijuana as an admirable and honest interpretation of Congressional intent. See blog here. 

  One wondered, however, how McIntosh would affect conditions of supervision and pretrial release. Nixon (sort of) answers that question. 

  Yet . . . read the case closely. The Ninth only holds that it was not an abuse of discretion to refuse Nixon’s requested modification. Id. at *3. It does not hold that DOJ can prosecute these violations – see “How to Use” below for thoughts on that twist.     

How to Use: Assume your client on probation, or supervised release, or pretrial release, has a lawful cannabis card and pees dirty for pot. After Nixon, a court can legally hold a violation hearing. After Nixon, Probation or Pretrial can hand up Form 12s and Form 8s. However, Probation and Pretrial Officers don’t have bar cards. What attorney has been funded by Congress to prosecute marijuana violations of supervision? That thorny question is dodged here: Nixon didn’t raise it. See id. at *2 & n.2 (“We therefore need not decide whether the appropriations rider affects the DOJ’s ability to participate in post-sentencing proceedings.”) Moreover, if DOJ doesn’t participate and the Court anoints Probation or Pretrial (“arms of the court”) to “prosecute” the violation, other problems arise. See id. (declining to resolve any problems presented by the separation of powers doctrine).

   It’s the next big issue – after the appropriation rider, who, precisely, is paying for AUSAs to litigate these violations?  

                                               

For Further Reading: Richard Nixon and pot have a long and complicated history. 

  For a fascinating account of how our thirty-seventh President once smuggled the devil’s weed into the United States, see article here.

Image of President Nixon smelling marijuana from http://www.tokeofthetown.com/2011/06/june_17_marks_40th_anniversary_of_nixon_declaring.php/

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

.

Case o' The Week: Second bite at Sentencing Apple Just a Nibble in the Ninth - Section 3582 Sentencing Limitations Upheld

  Why fret now about good new sentencing guidelines coming next fall, when 18 USC § 3582(c)(2) will permit re-sentencing?

  A: United States v. Davis, Jr. 2014 WL 114691 (9th Cir. Jan. 14, 2014), decision available here.

Players: Decision by Judge Canby, joined by Judges Watford and Hurwitz. Hard-fought appeal by (former) CD Cal AFPD Davina Chen.

Facts: In 2008 Davis pleaded guilty to a crack charge and a gun charge. Id. at *1. His guidelines were CH IV / OL 29, producing a low-end of 121 months. Id. The district court varied downwards to 70 months. Id. In 2012, Davis filed a motion to reduce his sentence under 18 USC § 3582(c)(2), after the Fair Sentencing Act (“FSA”) resulted in reduced crack guidelines. Id. Though the low-end of Davis’s (lowered) post-FSA guidelines were still higher than 70 months, he sought a variance down to sixty months, the mand-min. Id. 

  At issue at sentencing was Policy Statement § 1B1.10(b). In 2011 the Sentencing Commission amended this Policy Statement– it now sets the resentencing floor in this context to the low-end of the amended guideline range. Id. “The district court held that the Sentencing Commission’s Policy Statement § 1B1.10(b) precluded a sentence reduction because Davis had already received a sentence below the minimum of the amended guideline range.” Id. at *1.

Issue(s): “[ ] Davis, Jr. appeals the district court’s denial of his motion to reduce his sentence pursuant to 18 USC § 3582(c)(2) . . .  Davis argues that § 1B1.10(b) exceeds the Commission’s statutory authority and violates the separation of powers doctrine.” Id. at *1.

Held: “We . . . reject Davis’s argument that the amendment of § 1B1.10(b) exceeded the Commission’s statutory authority. We also reject Davis’s contention that amended § 1B1.10(b) conflicts with Congress’s directive that the Commission promulgate policy statements that will further the purposes of sentencing set forth in 18 USC § 3553(a)(2), 28 USC § 994(a)(2) (outlining the Commission’s duties).” Id. at *2. “Finally, we reject Davis’s contention that amended § 1B1.10(b) violates the separation of powers doctrine because it requires the district court to rescind a previously granted departure or variance.” Id. at *3. “Section 1B1.10(b) does not offend separation of powers principles because it is simply the result of an exercise of Congress’s power to control the scope of judicial discretion regarding sentencing.” Id.  

Of Note: With no offense to Ms. Chen’s formidable powers of persuasion, Davis is not an entirely unexpected result – many of these issues had already been decided in the Ninth, or rejected by other Circuit decisions. See, e.g., Tercero blog here.  

  Davis is an important read now, however, because it foreshadows battles to come when the many (pro-defense) amendments to guidelines kick-in on November 1, 2014 – particularly to the drug guidelines.

How to Use: What would you have done differently on your crack cases, with the benefit of hindsight and our experiences on FSA re-sentencing? It’s a timely question: good guideline amendments will almost-certainly become effective Nov. 1, 2014. See reader-friendly amendments here. (Drug guidelines on page 32).  

  What will we say to today’s clients, when they call next Halloween from the BOP prison and want a re-sentencing motion? Push hard now to get rid of § 3582(c) waivers in today's plea agreements, with an eye towards the November amendments. 

  (Or put the brakes on the case: November 1 is just a short 286 days away!)

                                               

For Further Reading: The proposed amendments strike sentencing guru Doug Berman “as HUGE news, and a terrific and fitting application of some of the themes that have been stressed by many members of Congress and by the Attorney General in recent months.” See blog here.

  The Prof’s take? “Perhaps I am at risk of already getting too excited (and counting too many unhatched chickens) concerning this USSC vote. But especially if this vote was unanimous within the Commission, and especially if it has the formal or even tacit approval of the Department of Justice, I do not think I am completely off base when suggesting this is a really big deal.” Id.

 

Apple image from http://www.valiant.com/authors/valiant/a-hidden-benefit-of-filing-a-bid-protest-could-give-your-company-a-second-bite-at-the-apple-if-you-lose-a-competition/

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

.