Case o' The Week: Jury Finding Not So Binding - Hardiman and Pimentel-Lopez challenges

 Per curiam coal, in the defense stocking . . .

   United States v. Hardiman, 2020 WL 7350248 (9th Cir. Dec. 15, 2020), decision available here.

 Players: Per curiam opinion with Judges Paez and Owens, and Sr. D.J England, Jr. Hard-fought appeal by ND Cal CJA stalwart James Thomson, along with Ethan Stone.

 Facts: At trial, a jury found Hardiman responsible for distributing at least 28 grams, but less than 280 grams, of crack. Id. at *1. At sentencing the district court rejected the jury’s finding, held Hardiman responsible for more than 280 grams, and imposed a guideline sentence. Id. 

 After Hardiman’s direct appeals were final, the Ninth decided United States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016). In Pimentel-Lopez, the Ninth held “that a district court is not entitled to make a drug quantity finding in excess of that found by the jury in its special verdict.” 2020 WL 7350248, *1 (internal quotations and citation omitted); see generally blog here. 

  After Pimentel-Lopez, the district court denied Hardiman’s § 2255 and § 3582(c)(2) motions.” Id.

 Issue(s): Issue One: “Hardiman argues that the district court erred by denying his § 2255 motion because, under Pimentel-Lopez, the court violated his Sixth Amendment rights when it found for sentencing purposes that he was responsible for distributing a higher amount of drugs than the jury specifically found.” Id.

 Issue Two: “Hardiman also argues that the district court erred by denying his § 3582(c)(2) motion in light of Pimentel-Lopez. Hardiman filed a § 3582(c)(2) motion to reduce his sentence based on Amendment 782 to the Guidelines. . . . The district court determined that Amendment 782 retroactively reduced Hardiman's base offense level and that he was eligible to be resentenced pursuant to a new Guidelines range, but that the 18 U.S.C. § 3553(a) factors and the circumstances of his case did not warrant a sentencing reduction.” Id. at *3.

 Held:  Issue One: “[W]e hold that Pimentel-Lopez does not apply retroactively to cases on collateral review under Teague v. Lane . . . .” Id. at *1. “Pimentel-Lopez announced a ‘new’ rule of criminal procedure which is not retroactive under Teague. Accordingly, Pimentel-Lopez is inapplicable to Hardiman's § 2255 motion, and the district court did not err by denying the motion.” Id. at *3.

  Issue Two: “Hardiman’s arguments about Pimentel-Lopez “were not affected by” Amendment 782 and therefore are outside the scope of the proceeding authorized by § 3582(c)(2) . . . Moreover, even under Pimentel-Lopez, a district court has the discretion in its assessment of the § 3553(a) factors to consider a drug quantity higher than the amount specifically found by the jury. . . .” Id. at *3 (footnote, quotations and citation omitted).

 Of Note: Should the § 3582(c)(2) decision be reviewed for abuse of discretion, plain error, or de novo? The Ninth dodges this standard of review – note that the standard of review issue remains open. Id. at *3 & n.4.

 How to Use: The Ninth doesn’t mention that Mr. Hardiman is serving 188 months – despite the fact that the jury found lower drug amounts than the sentencing court. There’s no habeas help, and no drug resentencing love. Do any options remain? Mull whether there is there any Compassionate Release action, litigation that permits revisiting unjust sentences imposed under laws that have since changed? (Note that Compassionate Release is a different subsection of § 3582).                                            

For Further Reading: The science is clear: inmates should be near the front of the line for the COVID vaccine. For a compelling podcast explaining why, see NPR piece here. 

  California is one of the few states that has prisoners in the list for vaccine in the next three months. See LA Times article here. 

  The CDC votes today on the next round of the vaccine schedule – here’s hoping our poor incarcerated clients don’t get washed out by the massive lobbying effort now underway. See CNN article here.  

 

Image of coal in stocking from https://middlesexconsulting.com/will-your-head-of-services-get-an-ipad-pro-or-a-lump-of-coal/

Image of COVID vaccine from https://www.insurancejournal.com/news/national/2020/10/30/588822.htm

 

 

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

 

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Case o' The Week: Ninth Axes Conviction after Juror Dismissed - Litwin, Sixth Amendment and Dismissals of Deliberating Jurors

 Axes to grind . . .

 

on Ninth’s mind. United States v. Litwin, 2020 WL 5050383 (9th Cir. Aug. 27, 2020), decision available here.

 Players: Decision by Judge Bress, joined by Judges Gould and Christen.

 Facts: Medical Assistant Litwin and his co-D, Dr. Wetselaar were charged with illegally distributing prescription medicine. Id. at *2. At trial Juror 5 was selected, but then explained her employer wouldn’t pay her salary while she served. She was left on anyway. Id. at *2-*4.

  The trial took 35 trial days. Id. at *5.

  Three hours into deliberations, a juror complained that Juror 5 “will not change her mind” and “will not deliberate.” Id. at *5. The district judge opined that Juror 5 “had an axe to grind” and was refusing to deliberate in retaliation for being left on the jury. Id. at *7.

  There followed an exchange where Juror 5 agreed to review the evidence, listen to the other jurors, and come up with a verdict. Id. at *9. Despite those assurances, and over defense objection, Juror 5 was excused. Id. at *9-*10.

  The next morning an alternate came in: a guilty verdict followed that afternoon. Id. at *10.

 Issue(s): “We confront in this case the question whether a district court erred in dismissing a juror, hours into jury deliberations following a lengthy criminal trial. Dismissing a juror based on her views of the strength of the government's case is an intrusion on the jury's role and violates the Sixth Amendment. But though the decision must be made carefully, there are various reasons why a district court may properly, and in its discretion, remove a juror from service once the jury has begun deliberating. Determining whether such a dismissal was a violation of the defendant's constitutional right to a unanimous jury verdict, or instead a permissible response to a juror's recalcitrance, bias, or incapacity, is a sensitive task. Because district courts observe jurors first-hand, they are accorded considerable deference in their handling of these issues.” Id. at *1.

 Held: “Under the unique facts before us, however, and notwithstanding the substantial resources expended in this case, we are constrained to conclude that the district court erred in dismissing a juror. The district court's determination that the juror harbored ‘malice toward the judicial process’ is not supported and cannot provide the basis for the juror's dismissal. And while the district court also cited the juror's alleged refusal to deliberate, based on the record in this case we are firmly convinced there was a reasonable possibility that the juror's dismissal stemmed from her views on the strength of the government's prosecution.” Id.

 Of Note: As the appeal proceeded through argument, the Ninth sought supplemental briefing from the parties on the dismissal of Juror 5. Id. at *10. In response, the district court filed a minute order supplementing the record with emails from Juror 5. Id. at *10. The district court also offered the Ninth an (unsolicited) opinion about the “overwhelming weight of the evidence supporting a finding of guilt.” Id. at *10. Finally, the DJ offered to provide declarations from court staff about Juror 5’s demeanor. Id.

  This curious minute order, and the court’s offer of new declarations, earned a cool reception in the Ninth. Id. at *15.

  An odd twist in an odd case.

 How to Use: Is the improper dismissal of a juror during deliberations structural error (leading to automatic reversal), or is it reviewed for harmless error? Oddly enough, this standard-of-review has not yet been resolved. Id. at *19. Judge Bress avoids deciding it here. Even adopting the government’s “harmless error” approach, the Ninth concludes that any error was not harmless. Id. at *20.

  The standard of review used could well determine the outcome in a future “excused juror” appeal – beware of this unresolved S.O.R. issue.

 For Further Reading: Litwin’s co-defendant, Dr. Wetselaar, was a 93-year old WWI veteran -- one of the oldest federal defendants ever sentenced.  See Review Las Vegas Review-Journal article here.  Id. He suffered from prostrate cancer, chronic renal failure, heart valve disorders, and brain atrophy. Id. 

  He was sentenced to ten years custody. Id.

Dr. Wetselaar

  Three years ago the Ninth reversed the district court’s refusal to grant bail pending appeal. See blog here. 

  Dr. Wetselaar passed away last April: the Ninth ordered the district court to vacate the judgment and dismiss the indictment as to this defendant. 2020 WL 5050383, at *11 & n.3.

 

 

Image of “axe to grind” from https://www.naukrinama.com/wp-content/uploads/2015/12/To-have-an-axe-to-grind.jpg  Image of Dr. Weselaar from https://www.reviewjournal.com/crime/courts/former-addict-testifies-in-93-year-old-doctors-drug-case-in-las-vegas/

 

 

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

 

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Case o' The Week: Pro Se, A-Ok -- Engel and Parameters of Pro Se Representation

  Engel’s dialectic?

Mr. Todd Engel

“Tame.” 

United States v. Engel, 2020 WL 4519071 (9th Cir. Aug. 6, 2020), decision available here.

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

Facts: Todd Engel traveled from Idaho to Nevada to impede a Bureau of Land Management (BLM) operation, related to the Bundy confrontation. See generally case description at blog on Bundy, here. Id. at *1. Wearing combat gear and armed with an AR-15, Engel stood on a bridge overlooking the BLM’s position. Id. No shots were ever fired. 

  He was charged with obstruction of justice and interstate travel in aid of extortion. A trial Engel successfully moved to represent himself and was appointed standby counsel. Id. at *2.

 Twenty-one days into the trial, Engel attempted to solicit from a government witness on cross that Special Agent Dan Love had been the subject of an investigation. Id. at *2. The court had previously rejected defense efforts to call Agent Love. Id. The district court sustained the government objection: Engel calmly apologized. Id.

   The government then moved for Engel’s pro se status to be revoked. The court, finding Engel was “smug” and “very proud of himself” for “sliding in” the question, agreed, revoked pro se status, and standby counsel came in. Id. Engel was convicted and sentenced to 168 months. Id. at *3.

Issue(s): “[Engel] contends that the district court violated the Sixth Amendment during his trial when the court terminated his right to represent himself and appointed standby counsel to represent him instead.” Id. at *1.

Held: “When viewed in comparison to these cases, the facts here do not support the district court’s termination of Engel’s right to represent himself. Unlike the defendants in [United States v. Mack, 362 F.3d 597, 599 (9th Cir. 2004) and Badger v. Cardwell, 587 F.2d 968, 971–73 (9th Cir. 1978)], Engel was not defiant and did not engage in   blatantly outrageous conduct, such as threatening a juror or taunting the district judge. To the contrary, Engel merely asked a question prejudicial to the government. When the government objected, Engel remained calm and ultimately acquiesced in the court’s decision to revoke his right to self-representation.” Id. at *4. 

 “We hold that Engel’s conduct was not sufficiently disruptive to justify termination of his right to self-representation. Because this is a structural error, we vacate Engel’s conviction and remand for a new trial.” Id. at *1.

Of Note: What is the standard of review, when a defendant claims on appeal that his Sixth Amendment right to self-representation was violated? There’s a split: five circuits have held it is de novo review, while the Seventh has held the issue is reviewed for abuse-of-discretion. Id. at *3.

  Judge Bybee explains that the Ninth Circuit hasn’t yet decided the S.O.R., and “[b]ecause we think the result in this case is the same under either standard, we need not resolve this split in authority.” Id. at *3.

  Note this issue for future Sixth Amendment / pro se cases: the standard of review remains up for grabs in the Ninth.

How to Use: How disruptive must a pro se defendant be, to have self-representation yanked? Judge Bybee works through a set of fact patterns where the Ninth upheld the court’s pull of pro se status: heated discussions with the judge, threats to a juror, and specific violations of a court order. Id. at *4. This same discussion reports conduct that is not enough: nonsensical pleadings, occasionally uncooperative, wearing prison garb in front of the jury, and lack of familiarity with the rules. Id. By comparison to these cases, Engel’s conduct in this trial was “tame.” Id. at *5. When dealing with a pro se client, Engel is a useful catalog of the conduct that crosses the line and can bump you from standby counsel to trial counsel.                                              

For Further Reading: Last week President Trump announced his intent to nominate a five Sentencing Commissioners. See press release here. 

Four of the five nominees are former federal prosecutors, who are on record favoring (significantly) higher custodial sentences. See, e.g., “Hang ‘em High” federal judge makes no apologies, here. 

Will the current Senate get around to confirming this daunting crew? The guideline ranges for our future clients, for many years ahead, hinge on whether these five nominations get crammed through the current Senate before it ends on January 3, 2021.   

 

 

Image of Mr. Engel from https://twitter.com/jjmacnab/status/1020058913113178112 .

 

Image of “Hang ‘em High” movie poster from https://www.vudu.com/content/movies/details/Hang-em-High/140796

 

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

 

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Case o' The Week: The First v. The Sixth in the Ninth - Carpenter and public disclosure of defense duress proffers

  Ninth mulls Seal balancing.

United States v. Carpenter, 2019 WL 2049818 (9th Cir. May 9, 2019), decision available here.

Players: Decision by Judge M. Smith, joined by Judge Hawkins and DJ Vratil.  

Facts: Carpenter and her co-D’s kidnapped Angel Gonzalez. See generally article here.

  Gonzalez was suspected of stealing marijuana from a Mexican cartel: the plan was to give him up in exchange for payment. Id. at *1.

   They hit Gonzalez with a cattle prod, duct-taped his hands and feet, and stashed him in a car trunk. Id. at *2. Carpenter drove Gonzalez across the border, but in Mexico Gonzalez managed to escape. Id. Carpenter ditched the car and was arrested when she tried to reenter the States. Id.

  Before the kidnapping trial, Carpenter submitted an offer of proof on her duress defense (based on her fear of the Mexican cartel). Id. The court refused to seal her duress offer of proof, but allowed the defense at trial. Id. Carpenter was convicted. Id.  

Issue(s): “We consider . . . Carpenter’s claim that the district court

abused its discretion in denying her motion to seal her duress defense proffer . . . .” Id. “Carpenter laments being forced to have ‘preview[ed] all of the evidence and all of her own testimony supporting her duress defense,’ and argues that the public disclosure was unconstitutional.” Id. at *5.

Held: “Even though we have long required that defendants proffer evidence of their duress defense, we have never held—nor indicated—that these proffers are entitled to secrecy or additional confidentiality. Instead, our early cases demonstrate that courts often dealt with the threshold inquiry of the prima facie showing through unsealed motions in limine. . . . Open court offers of proof were also utilized . . . .” Id. at *4.

  “The district court considered Carpenter’s concerns that the disclosure of her evidence to the government would be unfair and would conflict with the ethical rules that counsel against revealing information related to the representation of client, and found that she had not stated a compelling reason to seal the proffer. We agree with the district court.” Id. at *5.

  “[O]ur conclusion today does not establish a compulsory rule that defendants must disclose their testimony to present a duress defense. The public’s common law right of access to these offers of proof is a qualified right—one that a defendant can overcome by making the requisite showing. [I] n the balancing test the district court is required to consider the competing rights of the defendant and the public. We hold today only that the common law right of access attaches to pre-trial offers of proof for a duress defense, and that because Carpenter failed to provide a compelling reason to overcome this presumptive right of access, the district court did not abuse its discretion in denying Carpenter’s motion to seal her proffer.” Id. (internal citations and quotations omitted).

Of Note: This disappointing duress decision is slightly offset with a good holding on evidence of drug use. Id. at *7. Judge Smith explains that evidence of a co-D’s meth use during the kidnapping was inadmissible “other acts” evidence, that should not have survived FRE 403 balancing. Id. at *7-*8 (although this was ultimately held to be harmless error). Id. at *8.

  A good FRE 404(b) / 403 decision for our clients who use, in the course of their other mischief.

How to Use: Unbelievably, the AUSAs did not bother to read Carpenter’s duress proffer! Id. at *3. That remarkable fact colored the Court’s new rule. Id. at *5. Arguably this new duress-disclosure rule should thus be limited to cases where prosecutors agree not to read the proffer. The Court emphasizes that this disclosure is a balancing test, not a “compulsory rule that defendants must disclose their testimony to present a duress defense.” Id. at *5.

  Invoke the Sixth Amendment and fight to seal duress proffers – read properly, Carpenter’s holding should be a narrow rule indeed.

Mr. Daniel Collins

                                               

For Further Reading: Mr. Daniel Collins, President Trump’s sixth confirmed Ninth nominee, joined the Circuit last week. See article here. 

Image of Daniel Collins from https://www.sfchronicle.com/news/article/Trump-s-sixth-appointee-to-Ninth-U-S-Circuit-13867904.php

Image of balancing (sea lion, to be accurate) from https://www.quora.com/Are-there-seals-pinnipeds-that-are-intelligent-and-how-smart-are-they

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

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Case o' The Week: Catch a Tigar by the Tale - Sixth Amendment Structural Error and Limits on Defense Closing Arguments

  There are many rights that can be stomped upon, with convictions

salvaged by that damnable “harmless error.”

  And there are some, that cannot.  

United States v. Brown, 2017 WL 2509230 (9th Cir. June 12, 2017), decision available here.

Players: Important decision by N.D. Cal. District Judge Jon S. Tigar, joined by Judge Paez. 

 "Vigorous" dissenting opinion by Judge Bybee. Id. at *5.

Facts: Daniel Brown was a member of a closed online bulletin board where members shared child porn. Id. at *1. He was charged under 18 USC § 2251(d)(1), which prohibits knowingly advertising or giving notice of the availability of child porn. Id. 

  Before closing arguments, the government moved the court to prohibit the defense from arguing that this particular closed board did not constitute “advertising” or “giving notice.” Id. at *2. Over defense objection, the district court agreed and prohibited that defense argument. Id. Brown was convicted and sentenced to fifteen years. Id. at *1.

Issue(s): “Brown challenges his conviction on the ground that the district court violated his Sixth Amendment right to present his defense to the jury when it precluded him from arguing the government had not met its burden to show that the . . . board involved a “notice” or an “advertisement,” given the closed nature of the bulletin board.” Id.  

Held: “By refusing to allow Brown to present his defense in closing argument based on the closed nature of the . . . bulletin board, the district court “violated [Brown's] fundamental right to assistance of counsel and right to present a defense, and it relieved the prosecution of its burden to prove its case beyond a reasonable doubt. . . .  A deficient closing argument lessens the Government’s burden of persuading the jury, and causes the breakdown of our adversarial system . . . . 

  Since preventing a defendant from arguing a legitimate defense theory constitutes structural error, we must reverse Brown's conviction accordingly.” Id. at *5 (internal quotations and citations omitted).

Of Note: What do the majority jurists, Circuit Judge Paez and District Judge Tigar, have in common? 

  Many decades of trial court experience. 

Hon. District Judge Jon S. Tigar

  Both men served on California county courts for years, and both jurists have served as federal district court judges. By contrast, dissenting Judge Bybee’s first judicial post was to the Ninth. 

  It is admittedly too simplistic to attribute the split in votes solely to the jurists’ courtroom experience. Nonetheless, the wisdom of the trenches does flavor the opinion. See, e.g., id. at *4 & n.5 (explaining the “simple” process of permitting a defense factual argument to the jury, then denying a post-conviction Rule 29 against defense challenge. “That is exactly what criminal trial judges have always done.”) 

  Finally, as a practical matter, it won’t exactly be easy for us to argue the factual technicalities of “advertising” and “notice” to a jury horrified by the child porn images that they’ve just viewed in trial. There’s a good chance that courtroom reality occurred to the veteran trial judges.

How to Use: “Structural error:” an increasingly rare, and ever sweet, phrase. How strong was the AUSA’s case in this prosecution? Who cares? It just doesn’t matter -- when counsel is prevented from presenting a legitimate defense in closing argument, the conviction is reversed – period, full stop. Id. at *5. 

  Great stuff for an appeal, but potent medicine for the district court, too. When an AUSA presumes to constrict the scope of your closing argument, remind the Worthy Opposition and the District Court that limits on this core Sixth Amendment right mean a Ninth-mandated “Do Over” should the jury convict.

                                               

For Further Reading: The Supreme Court is thinking about Structural Error (rarely good news). Weaver v. Massachusetts involves a defense counsel who whiffed on objecting to a closed courtroom during trial.

  (NB: Closed courtroom + timely defense objection = structural error reversal).

   Circuits are split on whether the defense must first show Strickland ineffectiveness before earning a structural error reversal. For an interesting piece on this intriguing conundrum, see “Supreme Court to Decide if One Structural Error Cancels Out Another, available here.

Image of the Honorable District Judge Jon Tigar from http://www.cand.uscourts.gov/assets/images/judges/Judge_Jon_S_%20Tigar.colorresized.jpg

Image of “Don’t Tread on Me” flag from http://finfeetwing.org/images/rattle_n_carolina_gadsden.jpg

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

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