Case o' The Week: Of Trials and Tribulations - Lamar Johnson, Rehaif, and Review of Convictions After Trial

 The Ninth Circuit carefully limits its review to facts in the record, when considering a challenge to a conviction after trial.

 

 (Facts in the appellate record, that is).

  United States v. Lamar Johnson, 2020 WL 6268027 (9th Cir. Oct. 26, 2020), decision available here.

 Players: Decision by Judge Watford, joined by Judges Rawlinson and Wallace. 

  Hard-fought appeal by ND Cal AFPD Robin Packel.  

 Facts: The ND Cal. USAO refused Johnson a conditional plea, to preserve a suppression issue for appeal. See blog entry here, on first decision. 

At the stip-facts § 922(g)(1) bench trial, the government failed to prove that Johnson knew of his status of a convicted felon. 2020 WL 6268027, *2.

  The Ninth denied the appeal of the denial of the suppression motion.

  After Johnson filed a petition for cert., the Supreme Court G.V.R.’ed the case back to the Ninth on the Rehaif issue. Id.

 Issue(s): “[ ] Johnson’s argument is best understood not as a challenge to the sufficiency of the evidence, but rather as a claim that the district court applied the wrong legal standard in assessing his guilt —specifically, by omitting the knowledge of status element now required under Rehaif.” Id. at *3. “The central issue we must decide is whether, in assessing the fourth prong of the plain-error standard, we may consider the entire record on appeal or only the record developed at trial. If we are limited to considering the trial record alone, as Johnson urges, his case for reversal appears strong.” Id. at *4.

 Held: “[W]e think it is appropriate in this case to review the entire record on appeal—not just the record adduced at trial—in assessing whether Johnson has satisfied the fourth prong of plain-error review.” Id. 

  “[ ] [W]e see no basis for limiting our review under the fourth prong to the record adduced at trial. In a case like this one, in which the error under review involves omission of an element of the offense, the record on appeal will often not disclose what additional evidence the government would introduce to prove an element that it had no reason to prove during the first trial. But if the record on appeal does disclose what that evidence consists of, and the evidence is uncontroverted, we can think of no sound reason to ignore it when deciding whether refusal to correct an unpreserved error would result in a miscarriage of justice.” Id. at *5. “In this case, the record on appeal contains additional evidence the government would introduce to prove that Johnson knew of his status as a convicted felon. And given the overwhelming and uncontroverted nature of that evidence, Johnson cannot show that refusing to correct the district court's error would result in a miscarriage of justice.” Id.

  “We conclude that such evidence will ordinarily preclude a defendant from satisfying the fourth prong of plain-error review when challenging the district court's failure to require the government to prove that the defendant knew of his status as a convicted felon.” Id.

 Of Note: Amicus curiae flagged United States v. Atkinson, 990 F.2d 501 (9th Cir. 1993) (en banc). In Atkinson, the Ninth held that a defendant who proceeded to a bench trial did not need to move for a judgment of acquittal to preserve a challenge to the sufficiency of the evidence.

  Judge Watford avoid Atkinson by re-characterizing Johnson’s challenge, changing it from “sufficiency of the evidence”, to a “claim that the district court applied the wrong legal standard in assessing his guilt.” Id. at *3. 

  Whether convincing or not, this distinction will likely prove critical in future “missing element” challenges.

How to Use: Johnson salvages trial conviction based on facts outside of the trial record. That grim new approach does arguably have an internal limitation. Judge Watford writes that this approach applies in cases where the record on appeal reveals the necessary, and uncontroverted fact. Id. at *5 (emphasis added). If there’s any dispute over the fact fitting the missing element, this Plain Error Fourth Prong gambit should not save the conviction.                                

For Further Reading: Rehaif challenges suffered a double-whammy this week. In United States v. Singh, Judge Milan Smith rejected a mens rea Rehaif challenge – cementing “knowingly” as the mental state required for the prohibited-person status. See 2020 WL 6304898 (9th Cir. Oct. 28, 2020), decision available here.

 

  

Image of “Error” from https://www.padtinc.com/blog/windowsupdate/

 

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

 

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Case o' The Week: Feeling Weemish After Conviction Affirmed - Lamar Johnson (II) and Scope of Review for Sufficiency of Evidence Challenges

 The Ninth never goes fishing beyond the trial record, when reviewing a sufficiency-of-evidence challenge to a conviction.

The Hon. Judge Paul Watford

 (Well, almost never).

United States v. Lamar Johnson, 2020 WL 3458969 (9th Cir. June 25, 2020), decision available here.

Players: Decision by Judge Watford, joined by Judges Rawlinson and Wallace. 

  Hard fought appeal by N.D. Cal AFPD Robin Packel.

Facts: To preserve a suppression challenge, Johnson went through a stipulated facts trial in a §922(g)(1) case, and appealed. Id. at *1. The Ninth upheld the denial of the suppression motion. See generally Johnson blog entry here.  

   While Johnson’s cert. petition was underway, the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019). Rehaif required the government to prove that a defendant knew he belonged to a class of persons prohibited from possessing a gun (in this case, the class being “felons.”) Id. at *1. That fact was not proved in Johnson’s stip fact trial.

   The Supreme Court GVR’ed Johnson’s cert. petition. In his second Ninth visit, Johnson challenged the government’s failure to prove the Rehaif knowledge element in the stip facts bench trial. Id. at *2. The Ninth Circuit first held that, because Johnson did not challenge the sufficiency of evidence in the bench trial, it was required to conduct “plain error” review. Id.

Issue(s): “The central issue we must decide is whether, in assessing the fourth prong of the plain-error standard, [whether the error seriously affected the fairness, integrity, or public reputation of judicial proceedings], we may consider the entire record on appeal or only the record developed at trial. If we are limited to considering the trial record alone, as Johnson urges, his case for reversal appears strong. The factual stipulation submitted by the parties does not state whether Johnson knew he had been convicted of a crime punishable by imprisonment for more than a year. It merely states, as a matter of historical fact, that Johnson had previously been convicted of ‘a crime punishable by imprisonment for a term exceeding one year.’ Without more information about the nature of the crime or the length of the sentence imposed, a rational trier of fact would be hard pressed to infer that Johnson knew of his prohibited status as required under Rehaif. And that failure of proof might well be deemed to affect the fairness or integrity of the judicial proceedings resulting in his convictions.” Id.

Held: “[W]e see no basis for limiting our review under the fourth prong to the record adduced at trial. To be sure, in most cases involving unpreserved sufficiency-of-the evidence challenges, the portions of the record on appeal outside the trial record will be irrelevant to the analysis. In the ordinary case, as in James, a retrial will not be permitted if the government’s evidence is found insufficient, so the validity of the defendant’s conviction must be judged based on the trial record alone. Even in cases subject to the exception created in [United States v. Weems, 49 F.3d 528 (9th Cir. 1995)], the record on appeal will often not disclose what additional evidence the government might possess to prove an element that it had no reason to prove during the first trial. But if the record on appeal does disclose what that evidence consists of, and the evidence is uncontroverted, we can think of no sound reason to ignore it when deciding whether refusal to correct an unpreserved error would result in a miscarriage of justice.” Id. at *5.

Of Note: The Ninth relies on the ’95 Weems decision, which carves out an exception to that rule when there is an intervening change in the law after the government’s original proof at trial. Note Judge Watford takes pains to limit the scope of this exception, id. at *5, -- but those limitations are small solace in this Rehaif decision.

How to Use: Johnson does not hold that all Rehaif challenges are doomed. Mr. Johnson had the unfortunate burden of three prior felonies, with years of prison time. If your client doesn’t have a similar record (suggesting knowledge of a felony prior) you may be able to dodge this Weems dodge in your Rehaif challenge.

AUSA Jason St. Julien

                                               

For Further Reading: How does it feel to be a black AUSA, watching Black Lives Matter protests?

  For a remarkable and courageous piece by AUSA Jason St. Julien, see this Denver Post editorial, here.  

Image of the Hon. Judge Paul J. Watford from https://law.marquette.edu/assets/marquette-lawyers/pdf/marquette-lawyer/2015-spring/2015-spring-full.pdf

Image of AUSA Jason A. St. Julien from https://cle.cobar.org/cvweb/cgi-bin/memberdll.dll/info?WRP=facultyBio.htm&customercd=520184

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

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Case o' The Week: Don't Bother With Fed, Use County Instead - Artis and Federal Agent Execution of State Search Warrants

  Where do federal agents go for search warrants, for searches to be undertaken by federal investigators, producing evidence leading to federal prosecutions?

  

  Alameda County, of course.

United States v. Artis, 2019 WL 1375260 (9th Cir. Mar. 27, 2019), decision available here.

Players: Decision by Judge Watford, joined by Judge Tashima and visiting DJ Robreno.

  Hard-fought appeals by ND Cal CJA Stalwarts John Jordan and Steven Gruel (whose names are curiously omitted from the opinion). Underlying suppression of evidence by ND Cal DJ Chhabria.

Facts: Artis and Hopkins were allegedly involved in credit card fraud. Id. at *1. They were state fugitives. Id. 

  Federal Special Agent Stonie Carlson was assigned to the "Pacific Southwest Regional Fugitive Task Force," a joint state-federal task force under the direction of the Marshals. 

  Agent Carlson found Artis, scuffled with him, and ended up with Artis’ phone when Artis fled. Id. Agent Carlson sought a warrant to search the phone from an Alameda County Superior Court (California) judge. Id. Carlson didn’t base the warrant on Artis’ fugitive status – it was instead based on alleged “evidence of crime.” Id. The warrant was directed to “any peace officer in Alameda County” (and federal agents are not “peace officers” under California law.) Id. 

  Federal agents searched the phone, and obtained evidence leading to federal prosecutions. Id. at *2. 

  Northern District of California District Judge Chhabria suppressed the evidence from warrants for both Artis and Hopkins. 

  The government appealed.

Issue(s): “Whether the warrants were improperly executed by federal agents is a closer question. California law requires search warrants to be executed by ‘peace officers,’ but federal agents may assist a peace officer in executing a search warrant, provided the federal agent is acting ‘in aid of the officer on his requiring it, he being present and acting in its execution.’ . . . . [I] t seems doubtful that this requirement was satisfied here, although California courts do not appear to have addressed how strictly this provision should be construed when federal agents execute a search warrant as members of a joint federal-state task force that includes peace officers.” Id. at *4.

Held: “We find it unnecessary to decide whether federal agents violated California law by executing the Artis and Hopkins warrants. Even if such a violation occurred, the warrants would still be valid under the Fourth Amendment. An otherwise properly issued search warrant is not rendered void for Fourth Amendment purposes merely because it was executed by law enforcement officers who lacked warrant-executing authority under state law.” Id. at *5.

  [The Ninth later affirms Judge Chhabria as to suppression on the Artis warrant: there was insufficient probable cause. Id. at *7].

Of Note: In this same case, Agent Stonie Carlson obtained another search warrant, for a cell-site simulator for Artis' co-defendant, Hopkins. 

  As with the Artis warrant, Agent Carlson got an Alameda County judge to sign the warrant. Id. at *3. Agent Carlson then deployed the cell-site simulator – in San Francisco County! Id. at *3 & n.2. 

  Judge Watford avoids deciding the legality of that gambit, but notes Hopkins is free to raise that issue on remand. Id. 

  County-hopping search warrants are common in NorCal: will be interesting to see how this challenge pans out.

How to Use: Agent Carlon could have easily obtained a (federal) warrant to search the phone based on Artis’ fugitive status. Instead, he bungled, and relied on an “evidence of crime” theory that didn’t show probable cause. 

  “Meh, close enough for government work,” the Feds pleaded on appeal. The government urged the Ninth to uphold the search warrant based on a “fugitive” theory not identified in the warrant application. 

  The Ninth was unimpressed. Judge Watford “reject[s] the government assertion that the warrant may be upheld” on this alternative “fugitive” basis: the government is stuck with the probable cause basis actually articulated in the warrant application. Id. at *5. 

  The Ninth's limitation on alternative search warrant theories in Artis is a useful rejection of a government dodge.   

                                               

For Further Reading: Judge Chhabria didn’t mince words, when describing this investigation. “[T]he whole string of errors embodied in these warrant applications militates against applying the good-faith exception. Indeed, although the above-described errors are the most egregious ones, they are not the only instances of sloppy, inappropriate law enforcement work.”

  For a more fulsome description of a very troubling case (including a French Poodle Sheriff analysis), see Judge Slams FBI for Improper Cellphone Search, Stingray Use, here. 

Image of Task Force patch from https://www.worthpoint.com/worthopedia/marshal-pacific-southwest-regional-1788753130

Alameda County Seal from http://www.acgov.org/government/ 

San Francisco City & County Seal from https://www.linkedin.com/company/city-and-county-of-san-francisco 

French Poodle image from https://en.wikipedia.org/wiki/Poodle 

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

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Case o' The Week: The Fourth in the Ninth Goes Back to the Future - Lamar Johnson and Search "Incident" to Arrest

A search “incident” to arrest can happen before an arrest, and need not be supported by probable cause for the actual arrest that followed the search that was “incident” to arrest.

(And you thought the space-time quirks of “Back to the Future” were confusing.)

  United States v. Lamar Johnson, 2019 WL 137929 (9th Cir. Jan. 9, 2019), decision available here.

Players: Decision by Judge Wallace, joined by Judge Rawlinson.

 Compelling concurrence by Judge Watford.

  Hard-fought appeal by Oakland AFPD Robin Packel, Northern District of California.  

Hon. Judge J. Clifford Wallace

Facts: Johnson was stopped while driving. Id. at *2. The cop claimed he then smelled marijuana. Id. The officer asked for registration and insurance: Johnson explained he was borrowing the car and rummaged through the glovebox. Id. The officer opined this rummaging was inconsistent with how someone would (sincerely?) dig through a glove box. Id. The officer learned Johnson had been arrested for parole violations. Id. He asked Johnson to step out of the car, searched him, discovered he was wearing a bulletproof vest, and arrested him for being a felon in possession of body armor. Id. A later car search revealed a gun, drugs, scales, and plastic bags. Id.

  The defense motion to suppress was denied.

  This was the Northern District of California, so there was no conditional plea -- the defense and the District Court were forced to go through the rigamarole of a stip facts bench trial to preserve an important Fourth Amendment issue for appeal. Id. at *3.

Issue(s): “Johnson argues that the warrantless search of his person, [and] the warrantless search of his car . . . violated the Fourth Amendment.” Id. at *3. “[A] search, incident to a lawful arrest, does not necessarily need to follow the arrest to comport with the Fourth Amendment.” Id. “[W]hen the officer’s known facts provide probable cause to arrest for an offense, the officer’s subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” Id. at *3 (internal quotations and citations omitted).

  “The question presented in this case is whether these two well-established principles may coincide without violating the Fourth Amendment. Johnson contends that to do so would create a ‘search incident to probable cause’ rule, allowing officers to search a person whenever probable cause to arrest exists. Johnson argues that the existence of such a rule will cause widespread fishing expeditions that are pre-textual and discriminatory.” Id. at *4.

Held: “[T]he precise crime for which an officer has probable cause is irrelevant. . . . So long as the search was incident to and preceding a lawful arrest—which is to say that probable cause to arrest existed and the search and arrest are roughly contemporaneous, . . . the arresting officer’s subjective crime of arrest need not have been the crime for which probable cause existed.” Id. at *4.

  “We . . . join our sister circuits in holding that Knowles does not prevent a search incident to a lawful arrest from occurring before the arrest itself, even if the crime of arrest is different from the crime for which probable cause existed.” Id. at *4 (emphases added).

Of Note: Under Lamar Johnson, an officer can now:

  1) search "incident" to arrest before an arrest, and

  2) that search can later be upheld, even if the probable cause wasn’t for the actual arrest that (followed) the search “incident” to arrest!

  Huh?

Hon. Judge Paul Watford

  In a well-reasoned concurrence, Judge Watford politely tears apart this troubling holding. Id. at *7 *(Watford, J., concurring). He explains that he is forced to concur because of the Ninth’s 2004 decision in Smith. Id. Judge Watford persuasively explains, however, that the Smith decision is “doctrinally unsound” and not “consistent” with Supreme Court precedents. Id. at *9.

  The concurrence ends with a trenchant understatement: “it is no secret that people of color are disproportionate victims of this type of scrutiny.” Id. at *10. Judge Watford correctly warns, “So long as Smith remains the law of our circuit, it will only exacerbate this problem.” Id.

  Judge Watford is right - Smith (and Johnson) should go en banc. This dangerous Fourth Amendment decision, and this line of Circuit authority that has strayed far afield from SCOTUS precedent, merits a close second look by the en banc court.

How to Use: Don’t concede a Fourth challenge because of Lamar Johnson: preserve. La Lucha continues.

                                               

For Further Reading: Whither the Judiciary (and FPD) as the shutdown staggers into uncharted territory? For an article that accurately describes the looming crisis, see a helpful NYT piece here. 

Image of Marty McFly of “Back to the Future” from https://memegenerator.net/instance/68739897/marty-mcfly-i-think-i-got-confused

Image of the Honorable J. Clifford Wallace from https://wallaceinnsd.org/our-founder/

Image of the Honorable Judge Paul Watford from https://livzey.com/corporate/portraiture/attachment/judgewatford_9960/

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

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Case o' The Week: Convictions resist a battery of challenges - Kirkland and "Explosive Devices"

  “Batteries not included."

   Ruins Christmas mornings.

  (Convictions? Not so much).

United States v. Kirkland, 2018 WL 6186513 (9th Cir. Nov. 28, 2018), decision available here.

Players: Decision by Judge Watford, joined by Judges Fisher and Friedland. Hard-fought appeal by former CD Cal AFPD Carl Gunn.

Facts: Cops found a box when they searched Kirkland’s home. It contained a radio frequency receiver that could be used to detonate a device, a detonator, and shotgun shells that could provide an explosive charge. Id. at *1. Missing were eight batteries needed to make a functional bomb. Id. At trial, a government expert testified that the box could be made a bomb in minutes, by inserting batteries and by connecting the detonator. Id. Kirkland was convicted of being a felon in possession of a destructive device, and of possessing an unregistered destructive device. Id.

Issue(s): “On appeal, Kirkland challenges the sufficiency of the evidence to support his convictions, on the ground that the device he possessed does not qualify as a ‘destructive device.’ He also argues that his sentence should not have been enhanced under the ‘destructive device’ provision of the Sentencing Guidelines, U.S.S.G. § 2K2.1(b)(3)(B), as that enhancement turns on the same definition of ‘destructive device.’” Id. “He challenges only the sufficiency of the evidence to support the jury’s finding that he possessed a combination of parts ‘from which’ an explosive bomb could be ‘readily assembled.’ In his view, a conviction under subsection (C) requires proof that the defendant possessed every component necessary to construct a functional weapon. Under Kirkland’s reading of the statute, he would be entitled to a judgment of acquittal because the device in question needed eight C-cell batteries to operate, and the government did not introduce any evidence establishing that he possessed such batteries.” Id. at *2.

Held: “We do not think the statute can be read in the manner urged by Kirkland. Nothing in the text of § 921(a)(4)(C) states that a defendant must possess every component necessary to render a partially constructed device capable of detonating. The statute requires only that the defendant possess a combination of parts from which a functional device ‘may be readily assembled.’ As used in this provision, the term “readily” means quickly and easily: The combination of parts possessed by the defendant must be capable of being assembled into a functional device within a short period of time and with little difficulty—measures that may depend on the expertise of the defendant constructing the device. That requirement does not categorically exclude situations in which the assembly process entails the acquisition and addition of a new part.” Id.

  “At the end of the day, regardless of which components are missing from the device, the ultimate question will be the same: Can the missing parts be obtained quickly and easily, and if so, can they quickly and easily be incorporated to render the device functional?” Id. at *3.

Of Note: Gunn’s at war. More specifically, the Ninth contends that Carl Gunn’s urged interpretation was “at war with Congress’s purpose” in enacting the “combo of parts” provision of this statute. Id. at *3.

  Maybe so, maybe not, but – as the defense warned -- this decision leaves “intractable line-drawing” problems for future cases. If this box had batteries, but no detonator, would that be a bomb that is “readily assembled?” What if it was missing the radio frequency receiver? What if the parts were, but it had not been wired?

  All of these scenarios are now “inherently factbound issues that juries will have to resolve on a case-by-case basis.” Id. at *3.

How to Use: Judge Watford flags an important exception to the Kirkland holding: a destructive device needs explosive material. Id. at *3. That wasn’t at issue here, because the shotgun shells were the explosive component of this device. Id.  

  Note this important Kirkland exception to the bits and bobs theory of conviction: a bomb needs something that goes boom.

                                               

For Further Reading: Will President Trump’s appointments remake the Ninth? Perhaps less than is assumed. 

  For an interesting article on the actual numbers, see a Brookings report here. 

Image of “batteries not included” from http://christophergamboa.com/tag/clean-eating/

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

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Case o' The Week: They Beat Carillo, but Not the Conviction -- Gonzalez and Objects of Sec. 241 Conspiracies

   Unanimousish close enough, for conspiracy conviction.

Mr. Gabriel Carillo, victim of assault by L.A. County Jail deputies

United States v. Eric Gonzalez, 2018 WL 4904767(9th Cir. Oct. 10, 2018), decision available here.

Players: Decision by Judge Watford, joined by Judge Bybee and Sixth Cir. Judge Rogers.

Facts: Carillo was suspected of smuggling a cell phone into the Los Angeles County Men's Central Jail during a visit. Id. at *2. During a search, Carillo and Deputy Ayala got into a verbal spat. Id. More deputies were called: one punched the handcuffed Carillo. Carillo fell to the floor, and deputies punched and kicked him. Id. Carillo suffered bone fractures and a broken nose. Id. 

  Ranking officer Sgt. Eric Gonzalez huddled with his officers to “concoct a story that would justify their use of force.” Id.

  Gonzalez and two officers were charged federally. Id. “Count One charged Gonzalez and Ayala with a § 241 conspiracy that had two objects: (1) to deprive Carrillo of his Fourth Amendment right to be free from the use of excessive force; and (2) to deprive Carrillo of his due process right not to be prosecuted on the basis of falsified evidence. The jury returned a general verdict finding both defendants guilty of Count One . . . .” Id.

  On appeal Sgt. Gonzalez and Deputy Ayala challenged the sufficiency of the evidence for the conspiracy conviction. Id.

Issue(s): “Gonzalez and Ayala concede that there was sufficient evidence to support the second object. They contend that the verdict on Count One must nevertheless be reversed because there was insufficient evidence to support the first object and the jury’s general verdict makes it impossible to tell which of the two objects the jury agreed upon.” Id.

Held: “[W]e begin by rejecting the flawed premise of their argument. Gonzalez and Ayala assume that whenever one object of a multiple-object conspiracy is not supported by sufficient evidence, a general verdict must be set aside. The Supreme Court foreclosed that very argument in Griffin v. United States, 502 U.S. 46 . . . (1991). There, the Court held that reversal is required only if one of the objects of the conspiracy is legally deficient —for example, because the conduct underlying the object is protected by the Constitution, occurred outside the statute of limitations, or ‘fails to come within the statutory definition of the crime.’ Id. at 59 . . .. In that scenario, if the basis for the jury’s verdict is unclear, reversal is required because we do not expect jurors to be able to determine “whether a particular theory of conviction submitted to them is contrary to law.” Id.; . . . . The rule is different when all objects of the conspiracy are sound as a legal matter, but one of them lacks adequate evidentiary support. Because ‘jurors are well equipped to analyze the evidence,’ we can be confident that the jury chose to rest its verdict on the object that was supported by sufficient evidence, rather than the object that was not. Griffin, 502 U.S. at 59, 112 S.Ct. 466. In this latter scenario, the verdict stands.

   This case is controlled by Griffin. Gonzalez and Ayala do not contend that either object of the conspiracy charged in Count One was legally deficient. They do not, for example, assert that the jury instructions improperly defined the elements of the crime. They argue only that the first object, concerning Carrillo’s right to be free from the use of excessive force, was not supported by sufficient proof. Even if we agreed with them on that point (which we don’t, for reasons explained below), they would not be entitled to reversal of their convictions on Count One. The evidence was sufficient to prove the second object, as they freely concede. That suffices to sustain the jury’s general verdict against the challenge Gonzalez and Ayala assert.” Id. at *4.

Of Note: Tough facts here, for the defense. See an L.A. Times article on the sentencing hearing, here. 

How to Use: The depressing rule of Gonzalez (and Griffin) is that there’s no need for jury unanimity on multiple objects of a conspiracy, if the objects of the conspiracy are legally crimes.

  Note, however, that if there’s a legal impediment to one of the objects of a conspiracy (like a statute of limitations problem, or a jurisdictional problem), a challenge still lies. Id. at *3. An important caveat to a depressing holding.

                                               

For Further Reading: Over the vehement objections of the California Senators, President Trump has nominated three new jurists for the Ninth -- despite the lack of blue slips.

The Honorable Senators Dianne Feinstein and Kamela Harris

   For an interesting account of the many issues facing the nation’s largest Circuit, see a recent CNN article here.  

Image of Mr. Gabriel Carillo from https://www.dailymail.co.uk/wires/ap/article-3301174/Los-Angeles-sheriffs-deputy-gets-8-years-jail-beating.html

Image of Senators Feinstein and Harris from https://www.nbcbayarea.com/news/local/Harris-Feinstein-Say-They-Did-Not-Sign-Off-on-Judicial-Nominees-497431271.html  

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

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Case o' The Week: The Forbidden Power - Lynch and Jury Nullification

   Nullification: A critical power of the jury, and a violation of a juror's oath.

   (Huh?)

United States v. Lynch, 2018 WL 4354373 (9th Cir. Sept. 13, 2018), decision available here.

Players: Decision by visiting Judge Rogers, joined by Judge Bybee. Compelling dissent by Judge Watford. 

   Hard-fought appeal by AFPD Alexandra Yates, C.D. Cal. Federal Public Defender.

Facts: In 2007, the Feds charged Lynch with (openly) running a medical marijuana dispensary. Id. at *2. He went to trial.

   During voir dire the district court warned the jury, “nullification is by definition a violation of the juror’s oath.” Id. at *3. The court then asked each juror if they could abide by an oath that “they could not substitute your sense of justice, whatever it may be, for your duty to follow the law, whether you agree with the law or not.” Id. at *12.

  Lynch testified, and explained that an (unidentified) DEA employee told him that the Feds were going to let the counties and state handle marijuana dispensaries. Id. at *3. Lynch was convicted.

  At sentencing, the court found Lynch eligible for Safety Valve on a 5-year mand-min, and sentenced him to a year and a day. Id. at *4.

  

Issue(s): “Lynch assigns error to a warning against nullification given . . . at voir dire.” Id. at *12.

Held: “This warning was permissible . . . because it was an appropriate exercise of a district court’s duty to ensure that a jury follows the law, and it was additionally justifiable given that the need for the warning was a risk that Lynch’s counsel had himself invited.” Id. “The district court’s caution to the jurors that they should not substitute their own sense of justice for their duty to find facts pursuant to the law was entirely appropriate as a discharge of the court’s own duty to forestall lawless conduct.” Id.

Of Note: The Lynch nullification instruction traces back to the misguided Rosenthal marijuana prosecution, in the Northern District of California. See id. at *12 (citing Rosenthal favorably). Lynch argued that the instruction in his case violated the Ninth’s later Kleinman decision, that prohibited a court from threatening to punish a jury that nullified, or a suggestion that a nullified verdict is unlawful. Id. at *13; see also Kleinman blog entry here. In Lynch, Judge Rogers disagrees and tries to distinguish Kleinman. Id.

The Hon. Judge Paul Watford

   Dissenting Judge Watford has the better argument. Id. at *19. Judge Watford correctly frames the true issue in the case: “May the court instruct jurors that they are forbidden to engage in nullification, and if so, how forcefully may the court deliver the message?” Id. at *20. The dissent is a thoughtful opinion, carefully describing the historical importance of nullification and explaining why the court in Lynch crossed the line. For those who care about the power (not the “right”) of the American jury, this dissent is a must-read.

   Interestingly, jury nullification is an issue that crosses partisan lines -- good Federalists care deeply about the power of a jury to act as “the conscious of the community.” Id. at *19. Hopefully Judge Watford’s dissent catches the eye of some en banc allies on the Ninth.

How to Use: Déjà vu, all over again. Eight years ago, NorCal suffered under a USAO’s policy that demanded indiscriminate filing of priors – a policy that triggered mandatory minimums when a defendant had the temerity to seek pretrial release. See blog entry on “Priors Policy” here. 

  Some worry this ill-considered “priors policy” may be resurrected in the Northern District. If the “priors policy returns,” read Lynch.

  In Lynch, visiting Sixth Circuit Senior. Judge Rogers eviscerates courageous mand-mins efforts: an attempt to inform the jury of the sentencing exposure in the case, and an attempt by a frustrated D.J. to use Safety Valve to avoid the injustice of a five-year mandatory minimum. (Ironically, an act of judicial nullification in a jury nullification case).

  Lynch is an aggravating, but essential, read for anyone fighting mandatory minimums in federal court.

                                               

For Further Reading: Lynch perpetuates “the world’s silliest legal dichotomy: Juries can nullify, but lawyers and courts can’t, or won’t, tell them that they can. Advocates for nullification call it a right; opponents call it a power.” 

  For a compelling piece supporting Judge Watford’s dissenting views, see History is clear: Juries were supposed to be able to overturn laws,” available here.  

Quote from Thomas Jefferson from https://twitter.com/saidfromhistory/status/623817280716165120

Image of the Honorable Judge Paul Watford from https://livzey.com/corporate/portraiture/attachment/judgewatford_9960/  

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

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