Case o' the Week: Overbreadth Done if you Stash A Gun -- King and Overbreadth in Search Warrants

Not a good sign of great things to come, when an opinion begins: 

Firearms seized in search of King's residence

“While searching Sheldon King's home pursuant to a warrant, Fresno police discovered a medley of firearms.”

United States v. Sheldon King, 985 F.3d 702 (9th Cir. Jan. 14, 2021) (emphasis added), decision available here.

Players: Decision by Judge Bumatay, joined by Judge Callahan and D.J. Presnell. 

Hard-fought appeal by former CD Cal (and Alaska!) AFPD Carlton Gunn.  

Facts: A man assaulted a woman, and threatened her with a silver and gold revolver. Id. at 706. In a jail call, the assailant asked the victim to get the “thing” (the gun) to “Dubs” – (aka, the defendant in this case, Sheldon King). King was a felon. Id. Cops got a search warrant for King’s residence, to search for any firearm. Id. The search turned up a “medley of firearms.” Id. He was charged with Section 922(g)(1), and his suppression motion was then denied. Id. King entered a conditional plea preserving an appeal on the suppression motion.  

Issue(s): “King now brings this appeal . . . challenging the validity of the search warrant. Specifically, he argues that the warrant was overbroad—that there was only probable cause for the silver and gold revolver, and no other firearms.” Id. at 707.

Held: “[W]e conclude that the warrant here did not violate the Fourth Amendment. In the affidavit, a police officer detailed his investigation, his training and experience, and his suspicion that King was a felon in possession. The affidavit noted that King had two prior felonies . . . . Despite this criminal history, the affidavit sets out that King took possession of the “large silver & gold revolver” of unknown caliber shortly after it was used in a violent domestic dispute. The officer also explained how he suspected that other weapons might be present at King’s residence since other “individuals [may] arrive at the scene of [the] search” and that, in his experience, “many of these individuals are found to be in possession of weapons.” Moreover, the officer explained that, as a felon, any firearm found in King's possession would constitute evidence of a felon-in-possession offense. The officer expressed his belief that King was in violation of the felon-in-possession statute. These facts, taken together, provided the judge with a substantial basis to authorize the broader search for “any firearm.” Id.

 Of Note: The Ninth assures us there was probable cause for any firearm based on an assertation: that King’s willingness to hold a gun for a friend made it likely that he would also have other guns. See id. at 709 (“We doubt that the domestic-abuse suspect would have given the firearm to someone completely inexperienced in possessing firearms, especially a firearm that was just used in a crime. It's fair to think that serving as an illicit depository of another person's firearm makes King's possession of other firearms likely.”)

We may question that logic, but the unfortunate principle probably holds after King: the “stash-it” guy is likely now subject to broader search warrants than just the specific [gun/ammo/drugs ] awkwardly referenced in a jail call.

How to Use: “Gunner” Carl Gunn found a problem with the Career Offender sentence imposed in this case, and took it up to the Ninth. Unfortunately, a sentencing appeal was not carved out in the conditional plea. Judge Bumatay enforces the plea agreement’s waiver of sentencing appeals (although it looks like this potential problem may have cost Mr. King six offense levels). Id. at 711.

The rules around federal sentencing feel like they are changing daily – take a close look at this discussion in King when weighing whether a plea agreement waiving an appeal is worth it.                                               

For Further Reading: In 2016, SFPD Officer Nicholas Buckley, Star # 528, was caught by AFPD Ellen Leonida when a (surprise) surveillance video contracted every relevant fact of his testimony. 

When District Judge Charles Breyer explained that he was “deeply saddened” by what he saw in this hearing, the federal case was promptly dismissed. See blog entry describing evidentiary hearing here. 

Unbelievably, Officer Buckley is now back on patrol in San Francisco. See San Francisco Examiner article here. 

  There is no more potent example of toothless police discipline in San Francisco, than Buckley back on the beat.  

 

 

 

Image of firearms seized from Mr. King’s house from https://www.fresnobee.com/news/local/crime/article224126235.html

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

 

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Case o' The Week: The Ninth Gets Cross at Christmas (Cross-References, that is!) - Wang and Sentencing Guidelines

  Steven Wang contemplated the snowy hills around FCI Herlong while mulling his 2025 release date  -- the end of his 114 month sentence.

  Then a week before Christmas, he gets this call from his Federal Public Defender . . . 

   United States v. Steven Wang, 2019 WL 6835332 (9th Cir. Dec. 16, 2019), decision available here. 

Hon. Judge Milan Smith

Players: Decision by Judge M. Smith, joined by Judges Graber and Watford. 

  Admirable win for CD Cal AFPD Gia Kim.  

Facts: Wang facilitated visa fraud in Guam, by mailing I-129 petitions to Immigration that contained false statements. Id. at *2. Among (many) other counts of conviction, Want pleaded guilty to mail fraud, under 18 USC § 1341. Id. at *4. At sentencing, the district court applied USSG § 2B1.1 – the guideline for general fraud offenses – to the mail fraud convictions. The district court imposed consecutive sentences, resulting in a 114 month term. Id.

Issue(s): “[Wang] appeals his sentences imposed in two cases that the district court sentenced in the same hearing. In the first case, Wang pleaded guilty to mail fraud, visa fraud, money laundering, and willful failure to pay over tax. In the second case, Wang pleaded guilty to conspiracy to commit visa fraud. The key issue in these appeals is whether the district court properly calculated the offense level for Wang’s mail fraud conviction pursuant to the United States Sentencing Guidelines. . . .” Id. at *1. “The district court applied § 2B1.1—the offense Guideline that covers general fraud offenses—to Wang’s mail fraud conviction pursuant to 18 U.S.C. § 1341. By applying § 2B1.1, the court ultimately calculated a Guidelines imprisonment range of 46 to 57 months. The court imposed a 57-month term in Wang’s first case, and a consecutive 57- month term in his second case, resulting in a total sentence of 114 months. Wang challenges the district court’s application of § 2B1.1 to his mail fraud conviction and the imposition of consecutive sentences.” Id.

Held: “We hold that the district court erred by applying § 2B1.1 to calculate the offense level for Wang’s mail fraud count of conviction. The allegations underlying this count established an immigration visa fraud offense expressly covered by § 2L2.1. Therefore, the district court should have followed the § 2B1.1(c)(3) cross-reference and applied § 2L2.1. The district court’s error was plain, and it substantially affected the Guidelines range the court used to sentence Wang. We reverse . . . and remand for re-sentencing.” Id. at *2.

Of Note: The Ninth corrects, on plain error, the district court’s failure to cross-reference to the correct (and much lower) immigration visa fraud guideline. Judge Milan Smith strongly signals along the way that the consecutive sentences imposed were un peu trop. Id. at *8. 

  Wade through the Guideline morass, and the ultimate holding in this opinion is a great holiday outcome: a corrected guideline range that is probably 25% of the “plainly erroneous” original sentence.

How to Use: In a Grinch-ish gambit, the government tries to dodge plain error by arguing that Wang waived this guideline argument. 

  Judge M. Smith is unimpressed. 

 The Ninth “reject[s] the Government’s suggestion that Wang affirmatively waived his objection. If a defendant has intentionally relinquished or abandoned an objection, we do not review for error, plain or otherwise . . . . We require 'actual evidence' that the defendant knew of his rights and nevertheless chose to relinquish them. . . . Wang’s failure to raise his objection to the district court is not actual evidence of intentional abandonment.” Id. at *3 & n.6 (internal citations and quotations omitted).

  When the government next tries to ruin the Whoville Feast, remember the Judge Smith's waiver-saver in footnote 6.

                                               

For Further Reading: Tragic opioid deaths have sparked a trend of federal prosecutions, as addicts are charged with mand-min offenses. See  generally Press Release here. 

  Turns out, however, that the massive federal resources poured into prosecuting addicts don't actually reduce the rate of fatal overdoses. 

  For a thoughtful piece on the true realities of heroin and fentanyl offenses, see Vaidya Gullapali, Seeing the Humanity of People Who Sell Drugs, available here. 

Image of the Honorable Judge Milan Smith from https://www.marshall.usc.edu/news/law-and-business

Image of “The Grinch” from https://jambareeqi.com/2018/11/08/how-the-grinch-stole-christmas-1966-tv-movie-review/

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

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Case o' The Week: A BEAutiful Appellate Waiver Case - Dailey and SORNA Registration Requirements

Give thanks, for the Ninth's limitations on appellate waivers.

United States v. Dailey, 2019 WL 5688814 (9th Cir. Nov. 4, 2019), decision available here.

Players: Decision by Judge Bea, joined by Judges Gould and Friedland.  

Facts: Jazzmin Dailey was charged with the prostitution of a minor in Las Vegas. Id. at *1. She charge-bargained to violating the “Travel Act,” which criminalizes travelling in interstate commerce with the intent to commit unlawful activity (including non-sexual criminal activity). Id. at *2; see also 18 U.S.C. § 1952(a)(3).

   Her plea agreement contained an appellate waiver.

  In an admirable decision, Chief District Judge Gloria Navarro varied downwards and sentenced Dailey to no imprisonment and three years of probation. Id. at *3.   The sentence included a provision that Dailey had to comply with the Sex Offender Registration and Notification Act (SORNA) as directed. Id. at *3. 

  Dailey was required to register as a sex offender in her state of residence, Arizona. Id.

Issue(s): “On appeal, Dailey makes three arguments challenging the legality of the condition requiring her to register as a sex offender. First, she argues the district court imposed an illegal sentence by requiring her to register as a sex offender because she was not convicted of a ‘sex offense.’ Next, she argues the district court did not provide her adequate pre-sentencing notice that she would be required to register as a sex offender under SORNA. And finally, she argues the district court delegated the Article III power to impose a criminal sentence by leaving the determination whether Dailey would be required to register as a sex offender to the probation office or state officials.” Id. at *1.

Held: “[W]e reject all three arguments, conclude that the sentence was legally imposed, and dismiss the appeal based on the enforceable appellate waiver in Dailey’s plea agreement.” Id.

Of Note: The core issue of Dailey is whether the residual clause in SORNA is subject to the categorical approach, (on the issue of whether an element of the statute of conviction required that the victim was a minor). Id. at *6-*7. Judge Bea concludes it is not: “the statutory text and structure are clear.” Id.

  The Ninth joins the 4th, 5th, and 8th Circuits and holds that a non-categorical approach to the SORNA registration requirements is appropriate. Id. at *7.

  This is bad news for our clients – the non-categorical approach cast a much broader net, and will ensnare defendants like Dailey in the SORNA registration requirements.

How to Use: There’s lots of words, in Dailey, for a case that ultimately upholds an appellate waiver. Judge Bea explains that the familiar Bibler exceptions to appellate waivers includes an unlawful sentence – and that unlawful probation conditions fall within this exception. Id. at *3 (citing United States v. Watson, 583 F.3d 974, 987 (9th Cir. 2009)). Judge Bea then works through each of the challenges to the registration requirement, to consider whether it was lawful. Because the terms of probation were finally concluded to be lawful, the Ninth ultimately enforces the appellate waiver.

  From the defense perspective, this appellate waiver turns out to be a de minimis barrier to full Ninth review of the legality of the conditions of probation (and the same theory applies to supervised release!)

  Consider Dailey when conditions of probation or supervised release get your goat, but there’s an appellate waiver in the plea agreement. If your Ninth challenge goes to the legality of the supervision conditions, an appellate waiver in a plea agreement is essentially a meaningless term: appeal away. If the probation (or supervised release) conditions are unlawful, the plea agreement’s appellate waiver is unenforceable: our clients win. If the conditions are lawful, the waiver is enforced – but our client has had full appellate review of their legality.

                                               

For Further Reading: Two more of President Trump’s Ninth nominees, Mr. Lawrence VanDyke and Mr. Patrick Bumatay, cleared another Senate hurdle last week. See article here.  

Image of turkey urging waiver from https://mainesport.com/turkey-ride/

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

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Case o' The Week: Neutral Calls For Strikes and Balls - Sainz and Judicial Assertion of Defense Waivers

  The bench makes the calls, notes the Ninth: let the players play the game.

United States v. Sainz, 2019 WL 3770817 (9th Cir. Aug. 12, 2019), decision available here.

Players: Decision by visiting District Judge Piersol, joined by Judges Tashima and M. Smith.

  Big win on national issue of first impression for N.D. Cal FPD Chief of Appeals Carmen Smarandoiu.

Facts: Sainz pleaded guilty to drug crimes and was sentenced to 188 months. Id. at *1. Id.

  In a post-sentence cooperation agreement, Sainz waived his right to seek post-sentence reductions of his sentence under 18 U.S.C. § 3582(c)(2). Id. At the cooperation re-sentencing hearing, the court went down to 120 months. Id.

   Roughly a year later, Sainz moved for another reduction of his sentence under § 3582(c)(2) – specifically, for a reduction under Amendment 782, which had lowered his guideline range by thirty months or so. Id. at *2. Although neither party raised the earlier waiver of such claims, the district court denied Sainz’s motion based on the § 3582(c)(2) waiver in his cooperation-agreement. Id.

  Sainz appealed.

Issue(s): “We begin our analysis by nothing that no circuit has directly addressed whether it is appropriate for a district court to invoke sua sponte a defendant’s waiver in an agreement with the government of the right to file a § 3582(c)(2) motion.” Id. at *2.

  “In this case of first impression, we consider whether a district judge may sua sponte raise a defendant’s waiver of the right to seek relief under 18 U.S.C. § 3582(c)(2) and deny the defendant’s motion for resentencing on that ground.” Id. at *1.

Held: “We hold that it may not. . . . [and] reverse the . . . denial of Sainz’s motion for a sentence reduction.” Id.

Of Note: Our job is to take swipes at the government, but the wise exercise of prosecutorial discretion also merits a nod.

  Sainz’s counsel was ND Cal FPD Appellate Chief Carmen Smarandoiu. Ms. Smarandoiu reported to the Ninth that the N.D. Cal. U.S. Attorney’s Office generally did not assert § 3582(c)(2) waivers in the many cases where they existed. The Sainz decision cites this unrebutted assertion, id. at *6 n.3, which goes on to report that the majority of the district’s Drug Resentencing cases were resolved by stipulations between the FPD and USAO (despite the existence of waivers for many of our clients).

  Many of NorCal’s drug clients received real resentencing relief, and are now serving far fewer years in prison, because the USAO quietly, and deliberately, refrained from invoking § 3582(c)(2) waivers during the administrations of U.S. Attorneys Haag, Stretch and Tse.

  Nothing more becomes the federal government than self-imposed restraint.

How to Use: Sainz has a complicated procedural history, but a clean new rule: district courts cannot sua sponte invoke waivers that are not asserted by the government.

  The Ninth makes it clear that this rule applies to the Circuit as well: “Although we have not addressed whether a district court may raise a defendant’s waiver, we have concluded that, on appeal, courts should not raise waiver sua sponte.” Id. at *2.

  The Court declines “to hold that the government’s silence about a defendant’s waiver of the right to file a § 3582(c)(2) motion allows the district court to sua sponte raise the waiver.” Id. at *4. “In other words, the government must do more than remain silent: it must expressly invoke the waiver to avoid waiving it.” Id. Sainz is well-written and thorough in its discussion of the “waiver of waiver” problem.

  Turn to Sainz when your district (or appellate) judge edges out of their role as a neutral ump, and starts swinging at waivers not raised by the AUSA.

                                               

For Further Reading: Our problem with crime, A.G. Barr just explained, arises from District Attorneys who “style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.” See DOJ Press Release here. 

  In a similar vein, E.D. PA U.S. Attorney McSwain just blamed a tragic shooting in Philadelphia on a “culture of disrespect for law enforcement” “promoted and championed” by D.A. Larry Krasner. See E.D. PA USAO Press Release here.    Closer to home, 73 were just arrested in San Francisco's Tenderloin a single day, in an effort clearly coordinated with the NorCal USAO’s Helping Hand “FIT” project. See article here. 

  This is how Federalists respect states’ rights, and honor local control of local criminal justice issues? See essay by Edwin Meese, here. 

Image of an umpire from https://www.createastole.com/thegrad/become-a-major-league-umpire/

Image of “The Federalist Papers” from https://online.hillsdale.edu/courses/federalist-papers/lecture-1/lecture

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

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Case o' The Week: Ninth Nod to the Nutty - Equivocation When Going Pro Se in Faretta Hearings

 Feeling Lucky?

Charles 'Lucky' Luciano

United States v. Audette, 2019 WL 2096455 (9th Cir. May 14, 2019), decision available here.

Players: Decision by Judge M. Smith, joined by Judges Hawkins and Hurwitz. Hard-fought appeal by District of Arizona AFPD Elizabeth J. Krushchek.

Facts: Steven Audette borrowed millions, explaining that he needed to pay federal agents to protect him from the mafia. Id. at *1. He assured victims that he was a relative of organized crime figure Lucky Luciano, and was destined to inherit millions. Id. He and his family would be killed, he explained, and his victims kidnapped, tortured, and murdered, if he didn’t make the pay-offs. Id. at *2.

  In reality, however, the Mafia wasn’t after Audette, nor was he related to Luciano. Id.

  Audette was charged with 90 counts of wire fraud.

  After a court-ordered eval a shrink concluded Audette was not competent. Id. at *2. Audette was shipped off to the BOP, which quickly reported his competency “restored. Id.”

  After a number of Faretta requests, the district court had a hearing. Id. Audette then equivocated about representing himself, and explained that he wanted his attorney. Id. at *3. Ultimately, however, Audette said he wished to go pro se. Id. at *3.

  The court granted his wish, Audette was convicted of all counts, and sentenced to 20 years. Id. at *1.  

Issue(s): “Audette . . . argues that his waiver was equivocal because of what he said at the Faretta hearing before stating that he wished to represent himself. Audette told the court that he ‘want[ed] [appointed counsel] to represent [him] ... I’m scared to death to represent myself, in all honesty, I’m scared to death because I know that I don’t stand a chance against the prosecution.’ A few seconds later, he told the court that ‘when I heard you go over all the things I need to know to adequately defend myself ... it’s daunting. ... I don’t want to go toe to toe with the prosecution. That’s like me going up against Mike Tyson in a boxing match.’” Id. at *5.

Held: “Standing alone, such statements might make a waiver of counsel equivocal . . . . But after making those statements, Audette told the district court: ‘Yes, sir, it is’ in response to whether ‘it [is] your wish to represent yourself pro se?’ That statement was not an ‘impulsive response’ to the court’s question—Audette took five minutes to deliberate with Borrelli before responding to the court’s question. . . . Accordingly, Audette ‘appears to have given the issue serious thought,’ which supports our conclusion that Audette’s waiver of counsel was unequivocal.” Id. at *5 (quotations and citations omitted).

Of Note: Hamlet? Decisive, compared to Audette’s equivocation. See id. at *2.

 Judge M. Smith, however, rejects the argument that Audette’s “equivocal statements earlier in the hearing tainted his final, unequivocal waiver of counsel.” Id. at *5. Instead, the Ninth interprets these “expressions of trepidation” as evidence that Audette “grappled with the difficult decision.” Id.

Steven Audette

  (Bear in mind that Audette also wanted to tell the jury that he and “President Clinton [had hidden] guns and badges in a toilet while eating egg rolls). Id. at *8. 

  The Ninth attributes much introspection to a self-described egg-roll-chomping Friend of Bill.

How to Use: Read Judge Reinhardt’s Fahad concurrence. 190 F.3d 1097, 1107 (9th Cir. 1999). Twenty years ago that prescient jurist advocated for some rational limits on the rights of the mentally-ill to represent themselves. (Not an absolute right, he reminded us). Id.

  Judge Reinhardt’s pitch never got traction, and Audette now follows a line of authority – Kurt Johnson, Brugnara, and the recent Read – that honors the autonomy of delusional defendants to self-incarcerate for decades through wince-inducing pro se trials. (Notably, the Audette panel (Judge M. Smith, author) is the same panel as in Read (Judge Hawkins, author)).

   When faced with the mentally-ill client who is flirting with the idea of self-representation, read Read, (March 2019) and Audette together. This brace of recent decisions now lay out the parameters of pro se in the Ninth.

                                               

For Further Reading: Last week Kenneth Lee became the newest Ninth Circuit judge. Mr. Lee was President Trump’s 40th confirmed circuit judge: he was confirmed 52-45. See article here. 

Image of Charles “Lucky” Luciano from https://www.reddit.com/r/ColorizedHistory/comments/afil3q/mafia_boss_charles_lucky_luciano_in_exile_sicily/

Image of Steven Audette from https://www.timesfreepress.com/news/local/story/2017/jan/22/arizonscammer-maricounty-tie-gets-20-years/408770/

Image of Hamlet and Yorick’s skull from https://www.pinterest.com/pin/688136018040679294/

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

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Case o' The Week: Waver in Disfavor - Depue, Waiver and Forfeiture of Appellate Claims

  An en banc court of the Ninth has found that a defendant forfeited his challenge to a guideline sentence.

  Hooray!

United States v. Depue, 912 F.3d 1227(9th Cir. Jan. 14, 2019) (en banc),

decision available here.

Players: Decision by Judge Berzon, joined by CJ Thomas, and Judges Fletcher, Paez, Berzon, M. Smith, Ikuta, Christen, Nguyen, Watford, Hurwitz, and Friedland. 

  Federal Defender Amicus effort by AFD’s Vince Brunkow and Michael Marks, Federal Defenders of San Diego, Inc.  

Facts: Depue, who represented himself, was convicted of mortgage fraud after a jury trial. Id. at 1230. The government recommended a whopping OL 39, based on its loss theories. Id. at 1231. The PSR parroted this calculation: pro se defendant Depue didn’t object. Id. 

  Depue was sentenced to over twenty-one years. 

  He appealed, arguing that the loss calculations were erroneous. Id. A three-judge panel held Depue waived his objections to the alleged Guideline errors. Id. at 1231-32. 

  The case went en banc.

Issue(s): “We are asked to explain when a defendant is entitled to plain error review of challenges to his sentence that he failed to raise in the district court. Our cases have consistently held that a defendant waives his rights and precludes plain error review only when there is evidence that he knew of his rights at the time and nonetheless relinquished them. Twenty-one years ago, we explained this point in an en banc opinion. United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc).” Id. at 1229.

Held: “We reaffirm today this distinction between waiver and forfeiture.” Id. 

  “Confining our en banc consideration to Depue’s challenge to the Guidelines calculations, we hold that Depue’s failure to object to the Guidelines calculations at sentencing constitutes forfeiture subject to plain error review, but that there was no plain error.” Id. at 1230 (emphasis added).

Of Note: The Ninth reviewed Depue’s claims for plain error. The threshold issue for Olano “error” is whether the claim was “intentionally relinquished or abandoned.” Id. at 1232. As Judge Berzon explains, “forfeited claims are reviewed for plain error, while waiver precludes appellate review altogether.” Id. (emphasis added).  

  What makes for a “waiver?” Evidence that the defendant knew what they were giving up – a mere failure to object isn’t enough. 

  Judge Berzon writes that “The relevant question is whether Depue knew the substantive legal rules underlying the particular challenges to the Guidelines calculation he raises on appeal, and knew that the district court’s calculation violated those rules.” Id. at 1233-34. The en banc court holds that Depue didn’t know what he was giving up, so he didn’t waive. This distinction “between waiver and forfeiture is particularly important in the sentencing context.” Id. at 1234. A critically important holding, particularly for the extraordinarily complex Guideline (and Taylor analysis) sentencing process – it gives us a shot at plain error review, and getting a botched sentence fixed, on direct appeal. 

  This is a thoughtful opinion, buttressed by policy considerations, and is just flat-out fair: no surprise that all eleven e.b. votes signed onto the outcome.

How to Use: The defense in Depue won an (important) battle, but Depue himself lost the war. The Ninth held that, if there were legal or factual errors in the guideline calcs, they didn’t rise to level of plain error. 

  The take-away? Forfeiture and plain error review is better than waiver and getting kicked out of the Ninth -- but a nice record heavily peppered with clear objections is better than both.

                                               

For Further Reading: The national defense community generally, and NorCal specifically, has suffered a tremendous loss with the untimely death of San Francisco Public Defender Jeff Adachi.

   The only elected public defender in California, Jeff was a tireless and fearless advocate for his own clients, for resources for his office and for indigent defense, and for reform of the criminal justice system.

  

Our deepest condolences to his family, and to our PD brothers and sisters: we’ve all lost a good friend and great leader. See SF Chronicle Article here.

Image of “Ralph Wiggum” waver from https://tenor.com/search/waving-gifs

Image of Jeff Adachi from https://abc7news.com/society/san-francisco-public-defender-jeff-adachi-dies-at-59/5152699/

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

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Case o' The Week: First on the First in the Ninth - Sineneng-Smith and First Amendment Overbreadth

“Anyone not paranoid in this world must be crazy. . . . 

  Speaking of paranoia, it's true that I do not know exactly who my enemies are. But that of course is exactly why I'm paranoid.” 

  ― Edward Abbey, Postcards from Ed: Dispatches and Salvos from an American Iconoclast

 

The Honorable Judge Wallace Tashima

“[W]e cannot take the government’s word for how it will enforce a broadly written statute . . . any would-be speaker who has thought twice about expressing her views on immigration was not being paranoid.” 

  United States v. Sineneng-Smith, 2018 WL 6314287, at *11 (9th Cir. Dec. 4, 2018), decision available here. 

Players: Important First Amendment decision by Judge Tashima, joined by Judges Berzon and Hurwitz.

  Huge win for, among many others, Chief Deputy FPD Stephen Sady and R&W Attorney Lisa Ma, D. Oregon FPD, and Carmen Smarandoiu, Appellate Chief, N.D. Cal FPD, for Amicus Curiae Federal Defender Organizations of the Ninth Circuit.  

Facts: Sineneng-Smith ran an immigration firm that assisted clients applying for “Labor Certifications” and green cards. Id. at *2. Retention agreements explained that the goal was to assist clients to “obtain permanent residence through Labor Certification.” Id. Unfortunately, that path to permanent residence ended, yet the retention agreements for these aliens continued for seven years. Id.

  Sineneng-Smith was charged with, among other things, 8 USC § 1324(a)(1)(A)(iv) and § 1324(a)(1)(B)(i): “encouraging or inducing an alien to reside in the country, knowing and in reckless disregard of the fact that such residence is in violation of the law.” Id.

  Her pretrial First Amendment motion to dismiss was denied, and she was convicted after trial. Id. After the case was first argued on appeal, the panel invited amici briefing. Id.

Issue(s): “Section 1324(a)(1)(A)(iv) (‘Subsection (iv)’) permits a felony prosecution of any person who ‘encourages or induces an alien to come to, enter, or reside in the United States’ if the encourager knew, or recklessly disregarded ‘the fact that such coming to, entry, or residence is or will be in violation of law.’ We must decide whether Subsection (iv) abridges constitutionally-protected speech. To answer this question, we must decide what ‘encourages or induces’ means.’” Id. at *1.

Held: “We do not think that any reasonable reading of the statute can exclude speech. To conclude otherwise, we would have to say that ‘encourage’ does not mean encourage, and that a person cannot ‘induce’ another with words. At the very least, it is clear that the statute potentially criminalizes the simple words – spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client – ‘I encourage you to stay here.’ The statute thus criminalizes a substantial amount of constitutionally-protected expression. The burden on First Amendment rights is intolerable when compared to the statute’s legitimate sweep. Therefore, we hold that Subsection (iv) is unconstitutionally overbroad in violation of the First Amendment.” Id. at *1.

Of Note: The government urged a “strained” interpretation of “encourages or induce” in a bid to save the statute. Id. at *8. Channeling Justice Scalia, Judge Tashima rejects the effort, and adopts a natural reading that would criminalize “encouraging statements” protected by the First Amendment. Id.

  Along the way, Judge Tashima relies on the great Stevens quote: ““[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” Id. at *11. 

  A terrific opinion (and an important moment of legal history), Sineneng-Smith merits a close read.   

How to Use: On appeal Sineneng-Smith raised a First Amendment challenge: the panel asked for amicus briefing on an overbreadth claim. The government pleaded for “plain error” review, arguing that the overbreadth claim was waived because it was not raised in the initial appeal. Id. at *3. Judge Tashima rejects the government’s scramble: “Because Sineneng-Smith has asserted a First Amendment claim throughout the litigation, her overbreadth challenge ‘is – at most – a new argument to support what has been a consistent claim.’” Id. at *3. 

  Use Sineneng-Smith to brush back on the government’s pervasive “plain error” pitches.

                                               

For Further Reading: As reported earlier, President Trump jumped the gun and erroneously lambasted the Ninth Circuit for an admirable asylum decision by NorCal District Judge Jon S. Tigar (prompting an unprecedented defense by Chief Justice Roberts). See “For Further Reading” available here. 

  The Ninth has now caught up with the tweets. A three judge panel (two Republican-appointed judges, and one Democrat-appointed judge) has unanimously denied the government’s motion for a stay of Judge Tigar’s decision. See article here. 

 (Although, as Chief Justice Roberts has explained, the party affiliation of a federal judge doesn't matter). 

Image of the Honorable Judge Wallace Tashima from https://www.youtube.com/watch?v=CGD3bmSKvS8

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

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