Case o' The Week: Ninth Adopts New Abuse of Discretion Standard, Hinkson

One reporter described the Ninth Circuit's recent en banc decision in Hinkson thus: "Conservatives on the 9th U.S. Circuit Court of Appeals rode to the rescue of one of their own on Thursday, finding that Judge Richard Tallman didn't botch a bizarre murder-for-hire case in Idaho." Dan Levine, The Recorder, Law.com, article available here.

We will, however, refrain from speculating about any political overtones in the case, and will instead focus on the content of the new en banc decision that (unexpectedly and dramatically) changes a well-established standard of review in the Ninth Circuit. United States v. Hinkson, __ F.3d __, No. 05-30303, 2009 WL 3654003 (9th Cir. Nov. 5, 2009) (decision available here).

Players: Judge Tallman, sitting as a district court judge.

En banc decision affirming Judge Tallman by Judge Bea, joined by Chief Judge Kozinski, and Judges O’Scannlain, Kleinfeld, Callahan, Ikuta, and N. Smith.

Dissent by Judge W. Fletcher, joined by Judges Pregerson (who has a real Purple Heart), Paez, and Wardlaw.

Facts: Hinkson, a mentally-unstable Idaho businessman charged with tax evasion, spoke to several people about hiring them to kill federal agents, prosecutors, a judge, and their families. Id. at *1. He was charged with eleven counts of soliciting murder; Ninth Circuit Judge Richard Tallman sat as the district court judge at trial. Id. at *3. Hinkson beat or hung most counts, but was convicted of trying to hire “Swisher” – his former employee, now government witness – to murder. Id. at *6.

At trial Swisher testified he had served in the Marine Corps in Korea, had killed “too many” men, and had received a Purple Heart (he even wore a Purple Heart “medal” while testifying). Id. at *4. These were all lies – indeed, Swisher was (later) federally convicted for these lies. Id. at *7 n. 16. These lies were not clearly known to the defense during the trial, though documents arose that suggested Swisher was perjuring himself. Id. at *7. Judge Tallman prohibited the use of these documents to cross Swisher during the trial. Despite definitive proof that was finally delivered soon after the trial that Swisher had repeatedly lied, Judge Tallman denied the motion for new trial. Id. at *6.

Hinkson was sentenced to thirty-three years for these counts.

On appeal, a three-judge panel lead by Judge W. Fletcher reversed Judge Tallman’s denial of the Rule 33 motion in a lengthy decision. The case went en banc.

Issue(s): “[W]e consider the familiar ‘abuse of discretion’ standard and how it limits our power as an appellate court to substitute our view of the facts, and the application of those facts to law, for that of the district court.” Id. at *1.

Held: “[W]e hold that when we review for abuse of discretion a district court’s denial of a motion for a new trial, we first look to whether the trial court identified and applied the correct legal rule to the relief requested. Second, we look to whether the trial court’s resolution of the motion resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record. In other words, our abuse of discretion test means that we do not automatically affirm a district court’s factual finding if we decide it is ‘permissible,’ and we do not automatically reverse a district court’s factual finding if we decide a ‘mistake has been committed.’ Rather, in either case, we will affirm a district court’s factual finding unless that finding is illogical, implausible, or without support in inferences that may be drawn from the record.” Id. at *12. “Applying this test to the case at bar, we conclude the district court did not abuse its discretion in denying Hinkson’s motion for a new trial based on “newly discovered” evidence . . . .” Id.

Of Note: Judge Fletcher’s 37-page dissent reveals the palpable injustice of this case. He persuasively explains how the government had in its possession documents that undermined the credibility of the central government witness, how the government didn’t fully investigate or timely disclose these documents to the defense, how the government’s key witness affirmatively lied about his military service and honors, and exactly why the revelation of these lies would have resulted in an acquittal in a new trial.

This is, to put it charitably, a disappointing en banc decision.

How to Use: The Ninth now stands alone in manufacturing a definition for “abuse of discretion” – arguably, in the face of conflicting Supreme Court precedent. And this new rule will make reversing a district court exceedingly difficult under “abuse of discretion” review. Anticipate district courts feeling their oats on evidentiary rulings, decisions on experts, and new trial motions – Hinkson just wrote them a blank check.

For Further Reading: Ironically, (conservative) Judge Tallman owes his Clinton appointment to Judge W. Fletcher: part of a deal brokered for the confirmation of the latter. See article here.


Image of the Hon. W. Fletcher from http://www.virginialawreview.org/inbrief/2007/03/22/media/fletcher.jpg . Image of the Hon. Richard Tallman from http://www.uscourts.gov/ttb/2007-09/images/newLeadership/Tallman.jpg . Image of the (real) Purple Heart from http://www.lib.unc.edu/mss/exhibits/patriotism/Images/PurpleHeart.jpg

Case o' The Week: Living is Lying - Alvarez and the First Amendment

“If you tell a girl you love her in the evening and then tell your roommate she’s a bimbo the next morning, and the two compare notes, someone’s going to call you a liar.” United States v. Alvarez, __ F.3d __, 2001 WL 941617 (9th Cir. Mar. 21, 2011) (Ord. denying reh’g en banc)(Kozinski, C.J., concurring in denial of reh'g en banc).

This, and other various and sundry ruminations on the lies that we all tell, are featured in the intriguing (and welcome) order denying rehearing en banc for an important First Amendment decision, in the criminal context. Decision available here.

Players: Hard-fought case by CD Cal AFPDs Brianna Fuller and Jonathan Libby. Judge M. Smith, concurring in denial of rehearing en banc; concurring decision by C.J. Kozinski. Dissenting opinions from the denial of rehearing en banc by Judges O’Scannlain and Gould.

Facts: Alvarez, recently elected to a regional water district’s board of directors, bragged at a public meeting that he was a retired Marine who had been wounded and had received the Congressional Medal of Honor. Id. at *12 (O’Scannlain, J., dissenting from ord. denying reh’g en banc) (hereinafter, “O’Scannlain, J.”)

This was actually a “series of bizarre lies.” Id. (quotation and citation omitted).

Alvarez was prosecuted under the “Stolen Valor Act,” which makes it a federal crime to lie about military commendations. Id. After Alvarez entered a conditional guilty plea, a three-judge panel applied First Amendment strict scrutiny and held the Act to be an unconstitutional restriction – both as applied, and on its face. Id. Judge Bybee dissented, and a call for an en banc vote was made. Id. at *1 (Ord.)

Issue(s): “Is the speech forbidden by the Act protected by the First Amendment, or does it fall into one of the well-defined and narrowly limited classes of speech that is unprotected by the First Amendment?” Id. at *1 (Smith, M., J., concurring from ord. denying reh’g en banc) (hereinafter, “Smith., M., J.”) (quotations and citation omitted). Or, put differently, does the First Amendment require that statutes that criminalize false speech undergo strict scrutiny? Id. at *13 (paraphrasing O’Scannlain, J.).

Held: “In each of [the Supreme Court opinions relied upon by the Dissenters], the Court has made clear that false speech is not subject to a blanket exemption from constitutional protection.” Id. at *2 (Smith, M., J.). “The petition for panel rehearing and rehearing en banc is DENIED.” Id. at *1 (Ord.).

Of Note: First Amendment wonks are having a field day with Alvarez, see, e.g., blog here, but the most entertaining part of the case is Chief Judge Kozinski’s concurring opinion. Id. at *7 (Kozinski, C.J., concurring in denial of reh’g en banc) (hereafter, “Kozinski, C.J.”).

As the Chief correctly observes, “Saints may always tell the truth, but for mortals living means lying.” Id. at *8. He then rifts on a long catalog of our most-frequent fibs, and why we tell them. Id. at *8 (describing, among others, the lie “You're the greatest living jurist” offered to obtain a clerkship). Beneath the humor, the CJ makes a convincing point – and to tell the truth, the dissenting opinions seem a bit anemic after this tribute to free speech.

How to Use: In its most-narrow reading, Alvarez is a one-off case on a infrequently-charged statute. Judge O’Scannlain, however, gives us a long list of common federal offenses where false statements have been criminalized – and haven’t (yet) fallen to a First Amendment challenge. Id. at *17 (O’Scannlain, J.).

Reading that handy list makes one wonder if the Ninth’s Alvarez First Amendment analysis may have some legs for a constitutional challenges to other false-statement crimes?

For Further Reading: In the 2009 Hinkson case, the Ninth affirmed a conviction after a key government witness lied on the stand about receiving the Purple Heart – yet when that remarkable lie was discovered, no new trial was permitted! See blog entry here on Hinkson denial of rehearing en banc. Broadly speaking, a majority of Ninth judges assured us in the Hinkson denial of rehearing that the snitch’s Purple Heart lie wasn’t a big enough deal to warrant reversing the conviction. See order denying reh'g en banc here. That most-regrettable Hinkson decision has been a burr under our saddle ever since.

One of those same judges, in Alvarez, now argues that lying about a military medal is false speech that doesn’t deserve First Amendment protection and that should give rise to a federal criminal conviction. See Alvarez, at *13.

Military medals are a hot topic, in the last couple of years – it is interesting (and troubling) to read the opinions surrounding the en banc orders in Hinkson and Alvarez side-by-side.


Image of the Congressional Medal of Honor from http://thismightyscourge.com/2009/02/21/the-congressional-medal-honor-a-short-history/ Image of Pinocchio's nose from http://bookbuilder.cast.org/bookresources/10/10375/38102_1.jpg


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org



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Case o' The Week: Specific Loss from General Savings - Avila-Anguiano

The good news? The defendant is remanded for resentencing. By the time he gets back before the district court, the statute that created a ten-year mandatory minimum no longer exists!

The bad news? He still gets the ten (under a statute that no longer exists). United States v. Avila-Anguiano, _ F.3d _, 2010 WL 2735718 (9th Cir. July 13 2010), decision available here.

Players: Hard-fought appeal by Az. AFPD Saul Huerta and Defender Jon Sands.

Facts: A smuggler in Phoenix demanded payment from the alien’s relatives or threatened to kill his hostages. Id. at *1. ICE found the home where the hostages were held, along with an assault rifle and ammo. Id. Avila-Anguiano was identified as the man who had made the calls and threats; he was convicted of six federal counts after trial. Id. One count was a § 924(c) [use of a gun in the course of felony] which – at the time – carried a ten year mandatory minimum if an assault weapon was involved. Id. at *2.

Avila-Anguiano got some counts reversed on appeal; by the time re-sentencing came around the federal statute that had created that ten year mand-min had expired. Id. Nonetheless, the district court still imposed a ten year sentence for that count (with the sentences for other counts running consecutive). Id.

Issue(s): “This appeal presents the question, inter alia, as to whether U.S.S.G. § 2K2.4(b) [the guideline which refers to the statutory mandatory minimum] refers to the statute in effect at the time the crime was committed or the one in effect at the time of sentencing.” Id. at *1.

Held: “Under the circumstances presented by this case, we conclude that the statute in effect at the time that the crime was committed is the proper one to apply. We affirm the judgment of the district court.” Id.

Of Note: If you’ve been trained in the “One Book Rule,” this decision seems counter-intuitive. Recall this rule instructs the court to apply the guideline in effect at the time of sentencing, unless the defendant elects for the book in effect at the time of the offense. See generally United States v. Tucker, 982 F.Supp 1309, 1314 (N.D. Ill. 1997). The defendant picks the book.

Seems that under that rule, on remand the defendant should get to use the current guidelines with their cross-reference to the “new” statute with a lower mandatory-minimum sentence. Sadly, there’s another (obscure) rule: “The General Savings Provision.” Avila-Anguiano, 2010 WL 2735718, at *2. Codified at 1 USC § 109, the General Savings Provision abolishes the old common law presumption that a repeal of a statute ended non-final prosecutions under that statute. Id. The provision bars “application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense.” Id. at *4. It is sort of an anti-ex post facto rule: a defendant can’t be punished more harshly under laws that changed after the crime, but can be punished more harshly under repealed or expired laws that existed at the time of the offense. For Avila-Anguiano, this means getting a decade of federal custody under a statute that no longer existed at the time of sentencing.

How to Use: On March 17th the Senate passed the Fairness in Sentencing Act of 2010. This Act reduces (though does not eliminate) the sentencing discrepancy between crack and powder cocaine. Waiting for this reform has been like Waiting for Godot: much anticipated, never actually on the stage. If and when it passes, will the “General Savings Provision” of Avila-Anguiano ever come into play in relation to the Section 841 mand-mins? The issue may be moot if the final bill has explicit retroactivity provisions (or bars), but it is an interesting problem to anticipate.

For Further Reading: What is the most unjust Ninth Circuit decision in the last couple of years? A strong candidate is surely Hinkson. In this Idaho murder case the central government witness skated by without cross-examination on his extraordinary lies about his distinguished military service (including a phony Purple Heart). See blog here. In a remarkable (and politically-polarizing) decision, the en banc court actually rewrote the standard of review for “abuse of discretion” to preserve this conviction.

San Francisco’s intrepid Dennis Riordan sought a “super en banc” review; tragically, it was denied this week. Hinkson, 2010 WL 2757419 (9th Cir. July 14, 2010) (ord.).

If there’s ever a case where the Marine Corps' JAG officers should be writing an amicus for certiorari, Hinkson is it. And, if there’s ever a case that deserves a quick per curiam flip, Hinkson is the one. See Porter v. McCollum, 130 S. Ct. 447, 454 (2009) (discussing the particular respect juries afford to American veterans).


"Semper Fi" image from http://www.tsps-5.org/SemperFi.jpg/. AK47 image from http://www.militarypictures.info/weapons/AK47.jpg.html

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Case o' The Week: "Willful" Obstruction of Justice - for Unknown Investigation? Gilchrist and U.S.S.C. § 3C1.1

Don't lie. Or, at the very least, don't lie in a civil deposition when the feds have an investigation underway. If you do, obstruction of justice awaits (even if you don't know of the federal investigation at the time of the lie!) United States v. Gilchrist, 2011 WL 4537789 (9th Cir. Oct. 3, 2011), decision available here.


Players: Hard-fought appeal by our ND Cal CJA colleague Bob Waggener. Appeal from sentencing imposed by D.J. Susan Illston, ND Cal. Decision by Judge Carlos Bea (above left).

Facts: Gilchrist had a check–kiting and fraud scheme running with Wells Fargo. Id. at *1. When caught, he made a fraud claim against Wells Fargo – and civilly sued the bank! Id. at *2. Unbeknownst to Gilchrist, the FBI picked up the referral from Wells Fargo and began an investigation. Id. at *2. Gilchrist then perjured himself in depositions related to the civil suit. Id. at *2.

Gilchrist was ultimately charged federally and pleaded guilty to federal embezzlement and bank fraud. Id. at *1-*2. At sentencing Judge Illston imposed the “obstruction of justice” enhancement under USSG § 3C1.1, adding two levels for Gilchrist’s lies during the civil depositions. Id. at *3.

Issue(s): “[Gilchrist’s] primary contention is that because he did not know he was the subject of a pending criminal investigation at the time he committed perjury in a civil suit concerning the very same conduct later charged in the criminal Indictment, the district court erred in applying U.S.S.C. § 3C1.1 to enhance his sentence for willfully obstructing justice.” Id. at *1.

Held: “We agree with our sister circuits that ‘willful means only that the defendant have engaged in intentional or deliberate acts designed to obstruct any potential investigation, at the time an investigation was in fact pending; it does not mean the defendant had to know for certain that the investigation was pending.” Id. at *9.

Of Note: When the challenge is that a district court abused her discretion at sentencing, what is the standard of review? Hinkson, it turns out. We’ve bellyached about the regrettable new Hinkson standard for abuse of discretion from 2009, concocted in the context of evidentiary rulings for a federal conviction. See blog entry here. In Gilchrist, Judge Bea expressly relies upon that hugely deferential standard while reviewing Judge Illston’s sentence. See id. at *6.

Hinkson is a formidable hurdle if you are a defendant alleging an abuse of discretion at sentencing. If you are a defendant defending a sentence against government attack, however, be sure to tuck up under Hinkson’s remarkably deferential wings (the Ressam en banc case is a great example, where the government is challenging the substantive reasonableness of a sentence).

How to Use: Gilchrist adopts a new and unwelcome rule in the Ninth Circuit: you can get hit with obstruction for lying during civil depositions, even if you weren’t aware of a federal investigation when you lied. In an era where banks and Silicon Valley firms have shouldered the bulk of the FBI’s white collar investigation responsibilities, this new rule is yet another thing to worry about in civil depositions – and is a new basis for asserting the Fifth during a depo.

The one solace is that Judge Bea emphasizes a distinction between the Ninth’s rule and the rule in (some) other circuits: the federal investigation must actually be underway when the civil perjury takes place.

For Further Reading: Have you been watching Ken Burns’ great new documentary, Prohibition, on PBS? (You should). Sentence guru Professor Berman has, and has written a terrific post on the series here. The good Prof muses on the parallels between the prohibition of booze a century ago, and the federal prohibition of pot today. It’s a particularly timely analogy, as the Obama administration flip-flops on its earlier position and is now sending target letters to marijuana dispensaries – clinics that are in full compliance with state regulations. See Associated Press article, here.


Image of the Honorable Carlos Bea from http://www.hispanicallyspeakingnews.com/notitas-de-noticias/details/sb-1070-judge-was-once-almost-deported/ Image of Medical Marijuana from http://infohemp.com/wp-content/uploads/2011/01/California-Medical-Marijuana-150x150.jpg Image of Prohibition promo from http://www.thefastertimes.com/crime/2011/10/02/ken-burns-prohibition-a-documentary-about-the-promise-of-america/


Steven Kalar, Senior Litigator ND Cal FPD. Website at www.ndcalfpd.org


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Case o' The Week: Voice ID "All Right" by Ninth - Ortiz, FRE 901, and (Cross-Language) Voice Identifications

  The kids are all right.

  Richard Ortiz – well, less so.

United States v. Ortiz, 2015 WL 294305 (9th Cir. Jan. 23, 2015), decision available here.

Players: Decision by Judge Tallman, joined by Judges McKeown and Owens.

Facts: Ortiz was charged with being part of a large Mexican drug trafficking organization. Id. at *1. Ortiz has been released on another federal charge, and was dealing for the organization while on supervised release. Id. 

   His probation officer – who spoke Spanish “a little” – had spoken with Ortiz six to ten times while he was on supervision, and had met him ten to fifteen times, but had only spoken to him in English. Id. 

   During the trial, and over defense objection, this P.O. was called to identify Ortiz’s voice on wiretaps, as he spoke Spanish. Id. The P.O. testified that she recognized English phrases in the call, like “all right” as a distinctive tendency of Ortiz. Id. 

  Ortiz was convicted and sentenced to fifteen years. Id.

Issue(s): “Ortiz contends the district court erred in admitting the opinion testimony of his United States probation officer, Angela McGlynn, identifying Ortiz’s voice speaking primarily Spanish on wiretapped calls because McGlynn does not speak Spanish and had only heard Ortiz speak English.” Id. at *1 (fn. omitted).

Held: “We have never before determined whether a person who has not heard the speaker in a specific language and speaks only “a little” of the language herself, but also recognized the voice from a handful of English words in the taped conversations plus multiple other English conversations, has the ‘requisite familiarity’ to authenticate a voice under [FRE] 901(b)(5). Id. at *2. Here, [the Probation Officer’s] familiarity with Ortiz’s voice was substantially more than the minimal familiarity Rule 902(b)(1)(5) requires for admission of lay identification testimony.” Id. at *3. “Since we hold the district court did not abuse its discretion in ruling on the authentication of his voice on the recordings, we affirm Ortiz’s conviction.” Id.

Of Note: The standard of review, for the Ninth's analysis, is “abuse of discretion.” Id. at *2. Judge Tallman quotes from the seminal ‘09 Hinkson en banc decision, explaining that the Ninth will uphold the evidentiary ruling unless it is “illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” Id. at *2. Hinkson's abuse-of-discretion test is a forgiving standard, with much deference afforded to the district judge. Of historical interest: the D.J. in Hinkson case was Judge Tallman, sitting by designation. See blog here. 

How to Use: The voice I.D. in Ortiz – well, it stinks. The prosecutor first specifically asked the Probation Officer if she could recognize Ortiz’s voice – then played the P.O. the calls. Not surprisingly, the P.O. identified Ortiz. Id. at *2 n.3 Why wasn’t this identification procedure unduly suggestive (thus violating due process) under Neil v. Biggers, 409 U.S. 188, 199 (1972)? Maybe it was – but Ortiz didn’t raise it before the district court or in his opening brief, and the Ninth finds the issue waived. Id. at *2 n.3. Beware of the suggestive ID issue lurking with voice-identification issues (and raise the early!)

                                               

For Further Reading: Eric McDavid was sentenced to twenty years on federal charges, despite a vigorous trial defense that he was entrapped by the FBI’s young female informant. 

  After he served years in federal prison, a slew of documents have now appeared revealing that the informant, Anna, exchanged love letters with her target (a romance denied and downplayed by prosecutors in the trial). It turns out that the FBI had in fact ordered a polygraph of Anna while she was working on McDavid– then mysteriously cancelled it. (The name of the AUSA who signed off on the polygraph has now been redacted). Brady / Giglio evidence, that went to the heart of a vigorous entrapment defense, never disclosed during a very high profile federal trial?

   For a compelling piece on a very troubling prosecution in the ED Cal, see Ben Rosenfeld, Eric McDavid Deserves Answers from Federal Officials Who Kept Information from Him at Trial, available here. 

Image of “The Kids are All Right” from http://www.listal.com/viewimage/4475458

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

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Case o' The Week: Ninth Sour on Swisher's Sweets - Swisher, First Amendment, and Criminalization of Speech

  He lied to the VA, lied to his community, lied as a government snitch, and was indirectly responsible for one of the most troubling Ninth decisions in the last five years.

  But he still got a raw deal on appeal.

Elven Joe Swisher

United States v. Swisher, 2014 WL 5462290 (9th Cir. Oct. 29, 2014), decision available here.

Players: Decision by Judge Ikuta, joined by Judge Alarcón. Concurrence by Judge Tashima.

Facts: Swisher served in the Marines a year after the Korean War ended. Id. at *1. More than forty years later, he applied for VA benefits, claiming PTSD. Id. He (falsely) claimed he had been wounded in a secret combat mission, and was awarded benefits. Id. At trial for wearing unauthorized military medals in violation of 18 USC § 704(a) (among other offenses), the government introduced a picture of Swisher in a Marine uniform with military medals and awards. Id. at *2. He was convicted, lost the appeal, and filed a 2255 petition. Id. at *3.

Issue(s): Swisher claims “ that his conviction for wearing the medals violated the First Amendment under the reasoning of the Ninth Circuit’s intervening decision in United States v. Alvarez, 617 F.3d 1198, 1200 (9th Cir. 2010). The district court denied the motion.” Id. “The nub of Swisher’s argument is that his conduct in wearing his medals qualifies as expressive conduct, and therefore the application of § 704(a) to him violated his First Amendment rights.” Id. at *6.

Held: “We cannot pursue this line of reasoning, because it is foreclosed by [the Ninth Circuit’s 2012 decision in] Perelman . . . Given Perelman’s conclusion that the First Amendment does not prevent Congress from criminalizing the act of wearing military medals without authorization and with an intent to deceive, Swisher’s constitutional challenge to his conviction under § 704(a) fails.” Id. (emphasis added).

Of Note: How many times, in the last five years, have you gnashed your teeth and rent your sackcloth at the Ninth's new “abuse of discretion” standard in Hinkson? You’ll recall that in Hinkson, an en banc court of the Ninth salvaged a murder-for-hire conviction when a crazy government snitch had told fantastic lies about his military service – and the presiding trial judge had not let the defense use documents to impeach. See blog here (and read Judge W. Fletcher’s remarkable dissent from order denying rehearing en banc); see also NYT article here.  

   The snitch at the eye of this historical storm? Elven Joe Swisher – habeas petitioner in the present case. See Swisher, 2014 WL 5462290 (9th Cir. Oct. 29, 2014) at *2, n.2.

How to Use: The Ninth got it wrong, in Perelman. See Perelman decision here.  So argues Judge Tashima, in a compelling concurrence that concedes that Perelman controls, but posits that Perelman was wrongly decided in light of the Supreme Court’s decision in Alvarez, 132 S. Ct. 2537 (2012). 

  It’s a compelling concurrence – Judge Tashima worries that Swisher “was convicted because he told a lie” when he wore those medals – but not a lie used to fraudulently obtain benefits. Id. at *7. This conviction punishes pure speech, he argues in this concurrence, and Perelman is contrary to “the Supreme Court’s teaching in Alvarez.” Id. at *8.  

  Swisher would be an interesting vehicle to revisit en banc review of Perelman (though a habeas is admittedly not the ideal posture). Don’t give up on this issue: the last chapter has not yet been written on this criminalization of speech and the impact on First Amendment protections.

                                               

For Further Reading: Last Thursday the Honorable Judge D. Lowell Jensen presided over

The Hon. D. Lowell Jensen

his last calendar before retiring. He may have been the only judge to have presided in all three of the N.D. Cal’s venues, and was equally beloved in each. See article here.  

  At a ceremony on Thursday, he observed that the letter of the law can be difficult, but “men and women of good will can work together to get to a just resolution.” “Just this morning, on my last calendar” he reflected, “we had a case where the sentence would have been unjust; but everyone worked together to get to the right result.” 

   He’s a former chief county prosecutor, a former high-ranking DOJ official, a Reagan appointee to the bench – and he was revered and respected by every member of the NorCal defense bar. 

  Twenty-eight years on our bench were not enough, but we’ll reluctantly let Judge Jensen go for his well-deserved retirement.

Image of Mr. Elven J. Swisher from http://abcnews.go.com/Blotter/slideshow?id=3631778&imageid=3631724

Image of D. Lowell Jensen from http://www.cand.uscourts.gov/assets/images/SBA_DLJ.jpg

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

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