U.S. v. LKAV, Juvenile Male, No. 12-10483 (04-02-13) (N. Smith with Farris and Burgess, D.J. Alaska)

(Note: This is an Az FPD case)

Defendant, a juvenile male, was charged with murder under the Federal Juvenile Delinquency Act, 18 U.S.C. 5031-42.  He was 17 at the time (now 21).  Suffering from mental health issues, he was determined to be incompetent after an evaluation held locally.  The government then moved, and the district court agreed, that he be committed to an adult facility for restoration.  Juvenile defendant argued, in an interlocutory appeal, that he must be sent to a juvenile facility for restoration under 5073(c).  The government said that the statute does not mention "competency," although it does refer to "study," and the competency statutes for adults must apply.  The 9th rejects this interpretation.  The plain language of the statute, the legislative history, and the practical results all mandate that a juvenile, proceeded against as a juvenile, must be treated as a juvenile for restoration under the applicable statute for mental study and observations and treatment.

Congratulations to AFPDs Ryan Moore, Yendi Castillo-Reina, and Brian Rademacher, FPD Arizona (Tucson) for the win.

U.S. v. Juvenile Male, No. 07-50107 (1-26-10). Youth is wasted on the young, especially if they should misstate their age. Here, the juvenile was arrested for alien smuggling after a chase. He gave a birthdate that made him 18. The Border Patrol, however, had information that he had given other dates, when he was previously arrested, which made him a minor. Indeed, he had been deported as a minor recently. The government contested his juvenile status, which lead to hearings, which included testimony by the Mexican consulate. The court found the defendant was indeed a juvenile. The government then lodged a certificate to proceed under the Juvenile Justice and Delinquency Prevention Act. The Act requires the government to allege that a state will not take jurisdiction. Here, the federal prosecutor asserted that the state district attorney would not take jurisdiction. The 9th, on appeal, issued a per curiam opinion, that discusses what amounts to take state jurisdiction. In California, the state constitution vests the courts with criminal jurisdiction upon the filing of criminal charges. Thus, the decision by the district county attorney not to press charges had the affect of refusing jurisdiction. Thus, the certificate was not in error. The problem for the government, though, lay with protections of the Juvenile Act, which were all violated when the juvenile was arrested but stated he was an adult. The 9th (Berzon, Ikuta, and Singleton) came down on an interpretation of the Act that stressed the triggering of the Act upon arrest, with a reasonable knowledge provision. In this instance, the government had information that would raise the issue of minor status. The government should have taken steps to contact the Mexican consulate or the parents. The violation of the Act's protections (notification of parents and consulate among others) could not be considered harmless. The juvenile had confessed, and the court relied heavily upon the confession in the adjudication. However, the confession was given without the parents being present or notified. The case is therefore remanded for a determination whether the confession was a result of the Act's violation and if so, then it must be suppressed. The court then must determine whether there was sufficient evidence to adjudicate. On another issue, related to speedy trial, there was no violation as the continuances tolled the Act's clock and were a result of the defendant's actions.

Congratulations to Deputy Federal Defender Leila Morgan of the Federal Defenders of San Diego.

U.S. v. I.E.V., Juvenile Male, No. 11-10337 (11-28-12) (N. Smith with Christen; dissent by Kozinski)

One hundred miles from the border, a vehicle stopped at a Border Patrol checkpoint.  A police dog alerted, and the vehicle was sent to secondary.  The juvenile defendant was a passenger in the vehicle driven by his brother.  Upon exiting, the dog failed to alert to the defendant or driver.  A search of the vehicle came up empty. The juvenile was not threatening nor likely to flee.  The officer did frisk the juvenile, and found a brick of marijuana taped to his back.  At the hearing, the officer said he thought the juvenile acted nervous, but the court did not credit that observation because it was not in the report.  The officer also testified that he was trained to expect find guns where there were drugs.  The court permitted the search because of the proximity of the border, the canine alert, the officer training, and the nervousness of the brother -- not the juvenile.  The 9th reverses the denial of suppression.  Terry permits a frisk, but it has to be based on specific and articulable facts.  These were not.  The defendant was non-threatening.  There was no fear of flight.  A search had come up empty.  It appeared that the frisk was to further the investigation, which is not the rationale of Terry.  Moreover, the frisk exceeded the constitutional limits, as it went beyond the outer clothes.  The officer felt a bundle, and asked what it was, and then immediately pulled up the juvenile's shirt.  There was no testimony as to whether the officer was concerned.  Dissenting, Kozinski characterizes the majority's opinion was both "wrong" and "dangerous."  Kozinski would find sufficient specific facts, and the danger to officers.  Kozinski, in his usual punchy style, thinks it is easy for the majority to parse the different facts, and assume what the officers were feeling, in the safety of a courthouse, while he would be apprehensive, as would be the officers, out at a checkpoint, where defendants exited from a vehicle upon which dogs alerted.

Case o' The Week: The Cat's Meow - I.E.V. and Terry Searches

“An unknown object could be contraband and could be a weapon, just as a cat locked in a steel chamber for an hour could be alive and could be dead.” 

    United States v. I.E.V., a Juvenile Male, 2012 WL 5937702, *10 (9th Cir. Nov. 28, 2012) (Kozinski, Chief Judge, dissenting), decision available here.

 This pointed dissent from a great Terry decision thankfully doesn’t carry the day – but the Chief merits a nod for working Schrödinger’s Cat into a Fourth Amendment analysis.

Players: Decision by Judge N.R. Smith, joined by Judge Christen. Dissent by Chief Judge Kozinski.

Facts: I.E.V., a juvenile male was a passenger in a car driven by his teenage brother. Id. at *1. Id. A drug dog alerted on the car, but not the boys. Id. No drugs were found in the car. Id. The officers didn’t find either boy threatening, or likely to flee. Id. at *2. I.E.V. was “nervous” and “fidgety,” so both boys were patted down. An officer felt an object under I.E.V.’s shirt. Id. The officer lifted I.E.V.’s shirt without permission and discovered a brick of marijuana. Id. The district court denied the motion to suppress, holding the search was warranted based on the totality of circumstances. Id.

 

Issue(s): “In this appeal, we only answer the following questions: (1) whether the decision to perform a frisk of the Defendant was justified at its inception by a reasonable suspicion that the Defendant was armed and dangerous, and (2) whether the pat-down stayed within the appropriate scope of Terry.” Id. at *3.

Held: “The officers did not set forth the requisite specific and articulable facts such that a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.  No narcotics had been discovered prior to the pat-down of Defendant. There was no evidence that the Defendant was dangerous. At the suppression hearing, both officers testified that the Defendant and Mendez, two teenage boys surrounded by officers, acted in a compliant and nonthreatening manner. The frisk of the Defendant, essentially based on nothing more than the suspicion that drugs could be found, amounted to the type of general exploratory search for whatever evidence of criminal activity the officer might find, which was specifically prohibited under Terry. . . . Accordingly, this patdown was unconstitutional from its inception.” Id. at *4 (internal quotations and citations omitted). 

“[B]ecause the officer who searched the Defendant did not testify to the specific and articulable facts giving rise to the search, and because it is not obvious from the record that the officer immediately identified the bundle on the Defendant as contraband or a weapon, the search of the Defendant exceeded the scope of a constitutional Terry search.” Id. at *9.

Of Note: We love I.E.V..

    The Chief does not.

   In the first sentence of his dissent, C.J. Kozinski describes the majority decision as “wrong” and “dangerous,” and maintains that tone throughout. Id. Judge N.R. Smith, however, offers a subtle rejoinder. To support his (correct) Terry holding, Judge Smith quotes heavily from great Fourth language in several previous Ninth dissents – dissents penned, naturally, by the Chief himself. Id. at *5, *7; see also id. at 5 * & n.2 (“Given the totality of the circumstances, it seems our Chief Judge would have been diving alone into the nearest ditch.”)

How to Use: In I.E.V., Judge N.R. Smith announces a good new Ninth rule: “[W]e join with our sister circuits that have refused to allow police officers to justify a Terry search based on mere nervous or fidgety conduct and touching of clothing.” Id. at *6. Actually, there’s nothing new about this rule -- as explained in the opinion, this squarely comports with the intent of Terry. Nice, however, for the Ninth to formally reject the government’s attempt to expand Terry. As the Court cautions, Terry doesn’t justify a “perfunctory attitude towards frisking a subject once a justified stop has occurred.” Id. at *6. Turn to I.E.V. for Terry litigation: Judge N.R. Smith gives us a solid history of the rationales and limits of the search exception, in a well-written and valuable opinion.                                             

For Further Reading: Before the cops actually looked under the minor’s shirt, was the object taped to his belly drugs, or a gun? Chief Judge Kozinski uses Schrödinger’s Cat to illustrate the ambiguity. Id. at *10. If your quantum mechanics are a little rusty, there’s a short video explaining the thought experiment here.

Image of Schrodinger’s Cat from http://blog.imaginaryfoundation.com/2012/10/02/schrodingers-cat/

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

Butler v. Curry, No. 07-56204 (6-9-08). Under Teague, the state argued what is old is really new, especially when it comes to Cunningham. In Cunningham, the Supremes applied Blakely to California's guideline sentencing scheme. The petitioner here received an aggravated sentence based on judicial fact-finding. The facts included vulnerability of the victim and prior conviction. The district court granted the petition because of a Cunningham violation, but the state appealed, arguing that Cunningham was a new constitutional principle. The 9th (Berzon joined by Hall and Graber) held that Cunningham was not new under Teague. It analyzed whether one of the aggravators survived the error, but in an important analysis, concluded that a defendant's probationary status did not fall within the Almendarez-Torres exception for prior convictions. Probation can be modified or terminated early, and so it cannot be construed solely from the conviction documents. The 9th looked to its 1326 precedents for analogies. A prior conviction is to be construed narrowly. The 9th remanded for fact-finding as to harmlessness of the error.

Congratulations to AFPD Davina Chen of the FPD of the Central District California (Los Angeles).

U.S. v. Becerril-Lopez, No. 05-50979 (6-12-08). Defendant attacks his 1326 conviction and sentence on various grounds. The 9th (Hall joined by Pregerson and Hawkins) affirm. Defendant argued that his deportation was both procedurally invalid and that he was prejudiced. The 9th questioned whether the procedure was faulty, although noting some broad waivers in the immigration proceeding. The 9th though found no prejudice both as to procedure, and the possibility of waiver by the Attorney General for "extreme hardship" because the hardship was general and not specifically alleged. The 9th also found no error at trial with evidence that the defendant was not under "official restraint." The evidence was such that the defendant crossed the border, and was out of sight by the time the agents located him. Finally, and most importantly, the 9th held that robbery, under Calif. Penal Code 211, is a crime of violence for 2L1.2 purposes. U.S. v. Dougherty, 920 F.2d 569 (9th Cir. 1990) held that it was not for career offender purposes, but the precedent does not control 2L1.2 because of a different definition focused on physical force. The 9th holds that it is not categorically barred because while the generic definition of robbery is narrower than the state definition, the conduct that falls outside of the categorical limitation would still involve physical force, because it would be unlawful extortion. The 9th also goes through other exceptions, such as escape, immediacy, and claim of right, but finds them all lacking.

U.S. v. Juvenile male, No. 07-50107 (6-12-08). In a per curiam decision (Berzon, Ikuta, and Singleton), the 9th remands a disposition for violations of 5033. Here, the juvenile was arrested in an alien smuggling operation, and supposedly said he was an adult. This lead to various hearings, burden shifting, and delays as the defendant struggled to prove he was a juvenile. He finally succeeded with the help of the Mexican Consulate and certified documents. Because of the delay, the timing and procedural safeguards of the juvenile act were violated in every conceivable way. The 9th remands so the district court can determine whether the violations led to the confession and whether it was harmless. Berzon concurs, and dissents. She would find that there was no need for a remand as the violation was clearly harmful, and the government did not argue for harmlessness.

U.S. v. Marks, No. 05-30218 (6-13-08). The 9th affirms convictions in a fraud case where the defendant went pro per. The 9th held that the decision was voluntary, and not coerced. The 9th also held that the seating arrangements (with the pro per defendants in a row behind the represented defendants at the counsel table) was not prejudicial, as there was no objection at the time. The stopping of defendant's opening statements and cross-examination was not a violation of his right to defend, as the court was ensuring that rules of evidence were being followed. The restitution order was also affirmed.

Belmontes v. Ayers, No. 01-99018 (6-13-08). The 9th (Reinhardt joined by Paez) hold that the petitioner suffered IAC at the sentencing stage. Counsel failed to investigate, develop or strategically present mitigation evidence, and instead relied on the argument that LWOP was in fact a harsher punishment than death. O'Scannlain dissented, arguing that for the third time the panel seeks to find relief when the Supremes twice before had reversed. He would find no IAC.

U.S. v. Juvenile Male, No.11-30065 (1-20-12)(McKeown with Guy and Tallman).

The issue of "Who is an Indian" is raised in this juvenile matter. The juvenile is at least one-quarter Indian blood, and is enrolled in a tribe, resides on a reservation, and has received membership benefits. He argues, however, that he does not consider himself an Indian. It does not matter here what he thinks, reasons the 9th, because under the jurisdictional test established in Bruce, 394 F.3d at 1223-24 and more recently in U.S. v. Maggi, 598 F.3d 1073 (9th Cir. 2010), there was sufficient evidence for a trier of fact to determine he was an Indian beyond a reasonable doubt. The juvenile defendant did not contest the blood quantum prong of Bruce (some Indian blood), and he met three of the four factors in the second prong, looking at recognition -- enrollment, residence, membership benefits. There was more than enough evidence, even aside from the own consideration, to meet the jurisdictional test.

U.S. v. Gonzalez, No. 11-15025 (1-25-12) (Hawkins with M. Smith and Duffy, D.J.).

Joint Defense Agreements (JDA) can be great, except when they aren't. And, they aren't when the participants start pointing fingers in an IAC proceeding. Here, the 9th looks at a JDA between co-defendants, and spouses, charged with fraud and a fire count (10 year mandatory min). The trials were severed, when the husband said with chivalry that he did it and the wife knew nothing. After severance, the husband went first and then argued, unchivalrously, that he knew about the fraud (getting rid of a car for insurance), but not the fire. He was only convicted of fraud; the wife went down on all counts at her trial. He did not testify. The wife - the defendant here - raised IAC, arguing that her lawyer should have called the husband. The district court ordered depositions. "Wait," said husband, there is a JDA. The court shrugged and said when the parties raised IAC, the JDA became null. Not so, held the 9th, on an interlocutory appeal. Explaining JDAs, and the jurisprudence, the 9th concludes that attorney-client privilege extended to all involved. There appeared to be a JDA formed here, albeit orally. Now, comments may have been made after the JDA collapsed, but no findings were made. The 9th remanded for the district court to hold an in camera hearing to determine if and when the JDA ended, and when the comments about testifying were made.

Congratulations to AFPD Dan Blank of the Northern District of California (San Francisco) for the win.

U.S. v. Juvenile Male, No. 09-30330 (1-25-12) (Wardlaw with Gould and Bybee).

Does SORNA trump the protections of the Federal Juvenile Delinquency Act? Does SORNA survive constitutional challenges in the context of the FJDA? These issues were raised in a joint appeal brought by three juveniles convicted of aggravated sex abuse with children and ordered to comply with sex offender registration under probation or SR. The 9th held that Congress in enacting SORNA carved out an exception to the confidentiality provisions of the juvenile act, which allowed for registration which would disclose names. The 9th also upheld SORNA against a wide range of constitutional challenges in the context of juvenile adjudications.

Although losing, the Federal Defenders of Montana fought hard in mounting the challenges.

US v. Juvenile Male, No. 06-30270 (12-14-06). A juvenile defendant had been placed on probation for aggravated sex abuse until his 21st birthday. He violated the terms of probation, and, upon revocation, the court sentenced him "pursuant to the Sentencing Reform Act" to his 21st birthday. The 9th vacated and remanded. The 9th (Smith joined by Goodwin and Fisher) held that once the juvenile was sentenced under the Juvenile Delinquent Act, he stays under it. The court had to fashion a sentence under the JDA.

Congratulations to AFPD Steve Babcock of D. Mont.

US v. Juvenile male, No. 06-30587 (7-5-07). The 9th, per curiam, vacates the district court's decision to transfer a juvenile defendant because of clearly erroneous factual determinations. This is the second time (the first remand was because the court felt it had to consider that the defendant was guilty; such a conclusion is discretionary). In this second proceeding, the defendant again faces a charge of 2nd degree murder. He was over 15 at the time, it was a violent felony, but the transfer revolves around whether the transfer would be in the interests of justice. The court made a factual ruling, in transferring, that the defendant had never been a victim of domestic violence which was completely wrong. Moreover, the court made some judicial observations regarding other juveniles and other programs in BOP that were outside the record and inappropriate. The case gets remanded yet again.

Congratulations to AFPD David Ness of the Federal Defenders of Montana.

US v. Ensign, No. 06-10447 (7-5-07). The 9th affirms the district court's denial of an out-of-district lawyer to appear pro hac vice in this failure to file case. The counsel had been appointed as co-CJA counsel under a catch-all provision given the complexity of the case, but certain Bar improprieties were brought to the court's attention by the government. The court held a sealed hearing as to the proceedings taking place in the State Bar of Arkansas. The court then relieved counsel of his co- CJA appointment. He then sought appointment pro hac vice. The court denied this request, citing the possibility of Bar discipline in Arkansas and other reasons. The 9th affirmed the denial as not being an abuse of discretion. Moreover, the Sixth Amendment did not compel appointment because the defendant was represented by court appointed counsel, and she was not entitled to counsel of her choice when there is appointed counsel irrespective of the questions raised by out of district counsel.

US v. Forrester, No. 05-50410 (7-6-07). A pretty simple rule can be derived from this Farretta case: self-representation must knowingly and intelligently waive counsel, which includes being informed of the charges, sentence, and the dangers of self-representation. The district court missed two out of three. The court failed to inform the defendant of the "nature of the charge" (conspiracy) and misstated the sentence he was facing. The 9th (Fisher joined by Clifton and Smith) easily dismissed the government's harmless error argument, and vacated and reversed. As for the co-defendant, the 9th affirmed his conviction, holding that there was no expectation of privacy or searches in the goverment's computer surveillance of the IP addresses. Content was not searched; just addresses where the messages were sent.

US v. Ruiz-Chairez, No. 05-10226 (7-6-07). The 9th (Schroeder joined by Trott and Moskowitz) held that 2L1.2 (illegal reentry sentence) does not violate the equal protection clause. The Congress can act to enforce immigration laws; and the increasing of a sentence for prior offenses has a rational basis. The 9th noted that other offenses are punished less severely but writes that the argument misses the point, because this heightened sentence is not irrational.

Case o' The Week: Ninth Rewards Defense Expert Chase, United States v. Chase

Yet another great Ninth Circuit decision arises out of the Fertile Crescent for criminal appeals: the District of Montana. United States v. Chase, __ F.3d. __, 2007 WL 2410177 (9th Cir. Aug. 27, 2007), decision available here. In Chase, Judge Ferguson emphasizes the right of an indigent defendant to a defense expert, and adds some teeth to the process by which meth quantities are estimated.

Players: Notable win by Montana AFPD John Rhodes, decision by Judge Ferguson joined by Judges Pregerson and Ikuta.

Facts: Chase pleaded guilty to meth crimes. 2007 WL 2410177 ,*1. At sentencing, he fought the government’s theory of the quantity of meth produced. Id. The government’s estimate was based on a letter by an expert, who had in turn relied on state reports about the lab’s contents. Id. The expert’s estimate was five times higher than what Chase admitted he produced. Id. Chase’s requested his own forensic expert; that was denied by the district judge. Id.

At an evidentiary hearing, the government expert conceded that he didn’t know the amount of precursors, and that he based his estimate on the size of a big flask (although there was no evidence that this particular flask had been used). Id. Chase testified and denied cooking that much meth. The district court sided with the government, and sentenced based on at least double what Chase admitted to having cooking. Id. at *2.

Issue(s): “Chase contends that . . . the district court erred in denying his request for an expert; . . .[and] the court based its determination of drug quantity on unreliable evidence.” Id. at *1.

Held: “We hold that the district court abused its discretion in denying Chase's request for a forensic expert and relied on evidence lacking sufficient indicia of reliability.” Id. “The Supreme Court has long recognized ... that ... justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake. . . . In this case, Chase had a right to hire an expert who could have produced his or her own investigation, interpretation, and testimony.” Id. at *3 (internal quotations and citation omitted).

Of Note: Chase will be remembered for its strong endorsement of the right of indigent defendants to experts. The case is also important, however, for meth lab cases because the Court establishes several important rules for yield calculations.

First, Judge Ferguson explained that the district court’s calculated production “lacked sufficient indicia of reliability.” Id. at *6. He then clarifies that glassware alone is an insufficient base to calculate production – previous cases involving glassware included precursor amounts and estimates arising from those chemicals. Id. Moreover, Ferguson limits the “multiplier” method of estimating production over several cooks. Id. at *7.

How to Use: Judge Ferguson’s rejection of the government’s arguments about defense experts provides ammo to the defense when seeking experts in other contexts. The Court rejects the government’s whine that the defense had a chance to cross the government expert, and that was enough. As Ferguson observes, “This argument misses the point.” Id. at *3. A defense expert is critical for two separate and independent reasons. First, a defense expert could have presented an alternative theory of calculating meth production – in other words, the expert could have affirmatively advanced the defense case. Id. Secondly (and separately) a defense expert could have sharpened the cross of the government expert, by honing attacks on the expert’s methodology. Id. at *4. Plug both of these rationales into CJA requests for defense experts (and note the reversal in Chase just to drive the point home).

For Further Reading: Rely on a good Ninth Circuit decision in the last couple of years, and you probably have the District of Montana to thank. That district had just 417 defendants commencing federal criminal cases in the year before June of ‘06. See US Courts statistical report here. The D Az, by contrast, had over 4,000. Id. Yet the Big Sky district has had a hugely disproportionate number of criminal appeals (and reversals) in the Ninth: Chase, Garcia, Larson, Jimison, and Juvenile Male in the last year alone. What’s gives?

The aggressive appellate chops of Tony Gallagher’s Defender office is one explanation – though US Attorney Mercer and the Montana district court bench may deserve some of our thanks, as well. Has no one heard of buying appellate waivers with a reasonable deal?

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

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