Case o' The Week: Living with Leon -- Needham, Leon, and PC for Child Porn Search Warrants

  In the great flick Leon, the hitman hero is a “cleaner” who quickly and

efficiently resolves messes -- and isn’t terribly interested in what the law actually requires.

  Required viewing before grappling with the Supreme’s line of Leon “good faith” jurisprudence. United States v. Needham, 2013 WL 2665889 (9th Cir. June 14, 2013), decision available here.

Players: (Reluctant?) decision by Judge M. Smith, joined by Judges Berzon and Tallman (both concurring, on very different grounds). Hard-fought appeal by CD Cal AFPD Matt Larsen.

Facts: A mother alleged Needham molested her son. Id. at *1. A detective got a warrant to search Needham’s home. Id. at *2. The “Statement of Probable Cause” reported the facts surrounding the alleged molestation, that Needham was a registered sex offender, and that a decade before – when Needham was 16 – he had been arrested for lewd and lascivious with a child, and charged with sex abuse of a child and possession of obscene matter. Id. The detective opined that Needham had an unnatural sexual interest in children, and that “these people” collected child porn. Id. The detective did not explain how she learned the “characteristics” of those with sexual interest in children. Id. 

  A search revealed child porn on Needham’s iPod, he was charged federally, and moved to suppress based on the warrant’s lack of probable cause. Id. at *3. The district court denied the motion, holding the search was in good faith reliance on the warrant, and the Leon exception to the exclusionary rule applied. Id.

Issue(s): “Needham first contends that the warrant affidavit did not contain facts sufficient to find probable cause to search his residence for child pornography. In particular, he argues that [the detective’s] assertions that Needham ‘has an unnatural sexual interest in children’ and that ‘[t]hese people collect sexually explicit material of children’ are inadequate to support probable cause that Needham possessed child pornography in his home. He also contends that the district court erred in applying Leon's good faith exception to the exclusionary rule in this case.” Id.

Held: “Like the officers in Dougherty, the . . . . officers in this case relied on a warrant predicated on the bare inference that those who molest children are likely to possess child pornography. Since the date we decided Dougherty, it is clear in this circuit that such an inference, alone, does not establish probable cause to search a suspected child molester's home for child pornography. But because the standard for granting qualified immunity is the same as the standard of objective reasonableness under Leon, we cannot consistently grant qualified immunity to officers in Dougherty, who relied on the warrant in that case, and find that reliance on a similar type of warrant in this case (which was decided before Dougherty ) was objectively unreasonable. We thus conclude that the search in this case was executed in objectively reasonable reliance on the search warrant.” Id. at *5.

Of Note: Judge M. Smith (grudgingly, it seems) finds that the Leon issue is controlled by Dougherty v. City of Covina, 654 F.3d 892 (9th Cir. 2011). Dougherty is a Judge N.R. Smith opinion granting qualified immunity on a very similar warrant (Judge B. Fletcher, interestingly, joined that decision). 

  In Needham, Judge Tallman describes Dougherty as a “flawed decision,” id. at *12 (Tallman, J., concurring), and Judge Berzon complains of the “considerable tension” in Dougherty’s internal reasoning, id. at *11 (Berzon, J., concurring). (Though, to be clear, these concurring judges dislike Dougherty for very different reasons). Needham and Dougherty illustrate the huge price of Leon: “good faith” means bad law wags a long tail, sweeping over bad searches for years.

How to Use: Get past the frustrating Leon holding, and you’ll find another Berzon jewel: a wonderful exegesis on the probable cause required for a search warrant. Needham, 2013 WL 2665889 at *6 (Berzon, J. concurring). Clearly and persuasively written, Judge Berzon’s opinion is step one for a 4^th challenge to warrants lacking PC.  

                                               

For Further Reading: Prosecution of another terrorism case has stalled, because sequestration has forced a respected Federal Defender to pull out of the defense of the case. See "Federal Defender Wants Out of Terrorism Case Due to Budget Cuts," here. 

  In the same week, a convicted killer’s execution proceedings stalled when a different Federal Defender couldn’t pay travel and witness fees because of sequestration. See “Budget fight delays justice for mother of slain KCK girl Pamela Butler” here.   The mother of the child-victim – frustrated by the delays – offered to “help the defense out . . . . If they want me to get a fundraiser together to help them get their witnesses in, I’ll do that.” Id.

   Small tastes of the world that awaits, when -23% budget cuts hit all Federal Defenders next fiscal year. See Recorder article here.

Image of Leon and Mathilda from http://jrm.cc/leon-the-professional Image of Ms. Cherri West, with her daughter Pamela Butler, from http://www.kansascity.com/2013/06/09/4282348/washington-budget-fight-delays.html

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

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Case o' The Week: A Taxing Decision - Jennings and Sophisticated Means

With the Judiciary battered by reduced federal funding, on the eve of the April 15 filing deadline, in a case submitted without oral argument, will the government prevail when tax evaders appeal a guideline enhancement?

  As sure as death and taxes. United States v. Jennings, 2013 WL 1317017 (9th Cir. Apr. 3, 2013), decision available here.

Players: Decision by Judge Clifton, joined by Judges O’Scannlain and Trott.

Facts: Defendants Jennings and Feuerborn sought investors for a process that would separate oil from dirt without producing hazardous waste. Id. at *1. They used a vendor, “Eco-Logic Environmental Engineering” to develop the technology. Id. Using Jennings’ real name and social security number, they opened a bank account called, “Ecologic.” Id. Without telling investors, board members, or accountants, they deposited about $2.5 million in investments into the Ecologic account and spent on private expenses. Id. That money wasn’t reported to the IRS as expenses. Id. The men were convicted at trial of conspiracy to defraud the US and tax counts. Id. At sentencing, Probation urged a two-level enhancement under USSG § 2T1.1 for the defendants’ “sophisticated means.” Id. Over defense objection, the district court imposed that enhancement, concluding the Ecologic account disguised income as company expenses. Id.

Issue(s): “Under the Guidelines, a two-level sentencing enhancement should be imposed when a defendant's offense ‘involved sophisticated means .’ [U.S.S.G.] § 2T1.1(b)(2) (2010). Application Note 4 explains that the term ‘sophisticated means,’ for purposes of subsection (b)(2), “means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense. Conduct such as hiding assets or transactions, or both, through the use of fictitious entities, corporate shells, or offshore financial accounts ordinarily indicates sophisticated means.” Id. at cmt. n.4. Defendants argue that they did not employ means as sophisticated as those listed in the application note. They argue, for instance, that the enhancement should not apply because they did not create corporate shells or offshore accounts.” Id. at *2.

Held: “[T]he list contained in the application note is not exhaustive. We agree with other circuits that the enhancement properly applies to conduct less sophisticated than the list articulated in the application note.” Id. at *2. “[T]he fact that the concealment might not have been total [because it was using Jennings’ real name and social security number] does not mean that there was no effort at concealment or that the method employed was not sophisticated. Application of the enhancement does not necessarily turn on the scheme's likelihood of success in remaining undetected.” Id. at *3. “Defendants’ effort to disguise funds taken for their own personal use as money paid to a third party vendor for business expenses through use of a bank account with a deceptive name constituted a sufficiently complex method of concealment to warrant application of the sophisticated means enhancement.” Id.

Of Note: The Ninth joins the Second, Seventh, and Eleventh Circuits in holding that the “sophisticated means” enhancement can apply to conduct less sophisticated than the examples in the application note. Id. at *2. While that holding isn’t particularly surprising, applying the enhancement to conduct so – well, unsophisticated – is. If you can suffer that bump for opening an account using your real name and social security number, what conduct is not “sophisticated?”

How to Use: Jennings deals with “sophisticated means” in the tax guideline. What about that enhancement in the fraud guideline, USSG § 2B1.1(b)(10)? The two definitions are uncomfortably close. Mull Jennings when running the guideline calculations for tax or “vanilla” fraud cases.  

                                               

For Further Reading: Defenders are officially singing the sequestration blues. Many offices have laid-off staff, others have started furloughs, all will have furloughs underway by May. For a recent article describing the devastation, see Federal Defenders Face Deep Cuts, Delays In Cases, available here. 

 Image of Uncle Sam from http://www.mhpbooks.com/amazon-tax-holiday/

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

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Case o' The Week: Ninth Stops Short of Sequestration Cliff - Valencia-Riascos, FRE 615, Witness Sequestration and "Case Agents"

A government witness who is allowed to sit in during the entire trial, hear all defense cross-examinations before testifying, and alter his or her testimony in response – that’s called a violation of Federal Rule of Evidence 615, and probably a due process violation, to boot.

(Unless the witness is a cop – in which case, the proper term is, “case agent.”)

The Honorable Judge Susan Graber

United States v. Valencia-Riascos, 2012 WL 4826968 (9th Cir. Oct. 11, 2012), decision available here.

Players: Decision by Judge Graber (left). Hard-fought and creative challenge by Ass’t Federal Defender Rebecca Pennell, Federal Defenders of E. Wa. & Idaho.

Facts: Valencia-Riascos tussled with ICE Agent Miller while being fingerprinted in custody. Id. at *1. He was charged with a Section 111 assault. Id. 

At trial, Valencia-Riascos objected under Federal Rule of Evidence (FRE) 615 to Agent Miller’s presence in the courtroom, asking that he be barred as a witness or – alternatively – required to testify first. Id. The district court denied those requests, allowing Agent Miller to be designated as a “case agent.” Agent Miller testified at the close of the prosecution’s case-in-chief as the only eyewitness to the assault. Id. 

 The district court additionally refused to give the defendant’s requested jury instruction, cautioning the jury not to give any added weight to the testimony of a law enforcement witness. Id.

Issue(s): “Defendant Nilson Herney Valencia–Riascos appeals the district court's denial of his requests to limit the courtroom presence of a law enforcement officer who was the prosecution's main witness. Defendant argues that the district court abused its discretion and denied him due process by declining to exclude the officer from the courtroom, by allowing the officer to sit at the prosecution's table, and by declining to require the officer to testify first.” Id. at *1.

Held: “We affirm. Federal Rule of Evidence 615 requires a district court to permit a designated officer to be present during trial. Any related decisions are discretionary. No abuse of discretion or due process violation occurred in this case.” Id.  

Of Note: The core FRE 615 holding is disappointing, but not without precedent. See id. at *1. The new aspect of this frustrating “case agent” law is Rebecca’s creative challenge based on the “Justice for All Act of 2004 / CrimeVictims’ Rights Act (‘CVRA’).” Id. The defense argued that the 2004 CVRA supplemented FRE 615 (enacted in 1974). Id. at *2. Specifically, Valencia-Riascos correctly argued that the CVRA allows victim-witnesses to observe the trial when the district court determines that testimony by the victim will not be “materially altered if the victim heard other testimony at that proceeding.” Id. (There was no such finding in this case). 

Judge Graber, unfortunately, disagreed, extends a holding from a 2006 Ninth decision, and concludes that a cop/victim/witness can attend a trial either as a FRE 615 case agent or as a CVRA “victim.” Id. at *3.  

How to Use: FRE 615 “case agent” fiction is a galling rule that allows cops to hear the defense cross, learn the theory of the defense, and – “adjust” – their testimony accordingly. To help us fight this unfair advantage, Valencia-Riascos gives us a shred of helpful dicta: “[W]e observe that it may be good practice to require case agent witnesses to testify first, but we decline to adopt a presumption that would deprive the prosecution of the opportunity to present its own case without interference.” Id. at *4 (footnote omitted).

Note that there remains an unexplored corner of the “case agent” rule – the defendant here did not “challenge the constitutionality of [FRE 615],” and under the circumstances of this case the Court saw “no due process violation.” Id. at *3. A general, constitutional, due process challenge to FRE 615’s “case agent” gambit arguably remains unresolved in the Ninth. But see contra United States v. Charles, 456 F.3d 249, 258-60 (1st Cir. 2006).  

                                               

For Further Reading: Cramped readings of FRE 615’s sequestration rule (like the case-agent routine) make for tainted witnesses, bad fact-finding, and trials that don’t get at the truth. For a compelling argument urging a broad reading of FRE 615, see Sarah Chapman Carter, Exclusion of Justice: The Need for a Consistent Application of Witness Sequestration Under Federal Rule of Evidence 615, 30 Univ. Dayton L.Rev. 63 (2004).

Image of the Honorable Judge Susan Graber from http://www.owlsfoundation.org/historyroom2.JPG

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

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