Case o' The Week: Mand-min cross mandatory, at minimum? United States v. Larson, en banc

[Ed. note: Because I will be out of the state Monday August 6, this Larson Case o' The Week summary is being posted several days early].

Can one cross a rat about mandatory-minimum sentence? Yes! Or rather, "Probably!" Or perhaps, "Maybe!" The en banc decision in Larson is a huge improvement over a truly dismal opinion by the three-judge panel, but will still leave many district courts scratching their heads. We've got more ammo, but the defense bar will still have to fight to effectively reveal the crushing mandatory sentences that cooperating witnesses hope to avoid by parroting the AUSA's version of events -- or rather, by "truthfully providing testimony." See United States v Larson, __ F.3d. __, 2007 WL 2192256 (9th Cir. Aug. 1, 2007) (en banc), decision available here.

Players: Argued by Montana AFPD David Ness, decision by Judge Paez. "Concurrence" by Judge Graber, et al., dissent by Judge Hawkins, et al.

Facts: Four co-Ds were charged in a meth conspiracy. Id. at *1. Co-D Poitra and Lamere (“P” & “L”) flipped. P was looking at a five year mand-min, L, a life mand-min. Id. During cross, the defense elicited P’s 5 year mand-min, Montana District Court Judge Haddon interrupted and instructed the jury sentencing was up to him, and limited cross on the subject. Id. at *2. In light of that ruling, L’s life mand-min wasn’t brought up before the jury. Id. The defense did impeach both cooperators, however, on other fronts. The convicted co-D’s appealed, and a three-judge panel held it was not a violation of the Confrontation Clause: the case went en banc.

Issue(s): “These appeals present the question whether the Sixth Amendment Confrontation Clause rights [the convicted defendants] were violated when they were barred from cross-examining two witnesses about the mandatory minimum prison sentences that they would have faced but for their cooperation with the Government.” Id. at *1.

Held: “Before addressing the merits of Defendants' constitutional arguments, we clarify the standard of review that we apply to Confrontation Clause challenges. Under the circumstances here, we review for abuse of discretion, and we hold that Defendants' Confrontation Clause rights were violated. The error was harmless, however, and we therefore affirm their convictions.” Id.

Of Note: We flagged the very troubling three-judge decision in Larson last September. See blog here. The en banc decision is much better, but the compromises necessary to corral the en banc majority do show at the seams. Here are the core holdings of Larson:

1. There is a new hybrid standard of appellate review for Confrontation Clause issues, de novo when an area is completely shut off from cross, “abuse of discretion” for limitations of cross within a subject area. Id. at *5.

2. Limitations on cross on mandatory-minimum sentences can rise to a Confrontation Clause error (i.e., "an abuse of discretion") but the analysis is context-specific. Id. at *6 (discussing factors in Confrontation Clause analysis).

3. Higher mand-mins have greater relevance to show witness motivation. Thus fewer limitations on cross exploring high mand-mins will be tolerated. This is not a per se rule permitting cross re: mandatory-minimums, but as (grumbling ) Graber points out, “The rationale that animates [the majority's] opinion could apply to any statutory minimum term of years, not just to a statutory term of life in prison. The strength of a witness’ incentive to assist the prosecutor may be just as great or greater if she is a young mother facing a 5-year statutory minimum term, or if he is terminally ill and subject to a 10 year statutory minimum.” Id. at *15.

How to Use: Larson will be all things to all parties (ironically, for a “clarifying” en banc decision). The government will argue that the fact that there was no Confrontation Clause error as to P means that lower mand-mins can’t be explored on cross. That spin isn’t true to the reasoning of the majority decision: here, P’s five-year mandatory minimum was disclosed to the jury, which avoided the Confrontation Clause error.

The defense will argue that any limitation on cross on mand-mins is a Confrontation Clause violation – but, unfortunately, we’ll probably have to slug through factual comparisons with the impeachment permitted in Larson. The defense should also emphasize the magical (and mythical) curative powers of limiting instructions: the majority reassures the government and its allies that limiting the jury’s consideration of sentencing can mitigate the jury’s exposure to the numbers discussed in a mand-min cross. Id. at *8 n.9. Nice to be able to use these platitudes about limiting instructions against the government, for a change.

For Further Reading: Larson looks like a Supreme Court case: more splits than an ice-cream parlor. So much for the unifying effect of the fifteen-member en banc. Reporter Pam MacLean has a great article on the end of the larger en banc panels. See article here.


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

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Case o' The Week: Taking the "Confrontation" out of the Confrontation Clause, United States v. Larson

A snitch works off a mandatory minimum life sentence by testifying at trial. “OK to exclude this fact in a jury trial,” says the Ninth, in a remarkably unpersuasive decision. United States v. Patricia Ann Larson, __ F.3d. __, 06 Cal. Daily Op. Serv. 10263 (9th Cir. Aug. 28, 2006), opinion available here. An opinion that cries out for en banc review.

Players: Hard fought case by Montana Defender Anthony Gallagher and AFPD David Ness.

Facts: Two snitches testify in a meth trial. Id. at 10263, 10270. Snitch A was looking at five to forty, Snitch B could have gotten mandatory life. Id. at 10269. The trial judge refused to allow defense cross about the likely prison term the snitches were facing absent their cooperation with the government. Id. at 10270. The defense was allowed to cross regarding the snitches’ understanding that only the AUSA could move for a reduced sentence. Id.

Issue(s): “[The] first contention on appeal is that the district court violated their Confrontation Clause rights when it prevented counsel from cross-examining the government’s cooperating witnesses as to the minimum terms of imprisonment they would likely have faced if not for their agreement to testify against the appellants.” Id. at 10271.

Held: “Where the court allows extensive examination as to the existence of an agreement by which a witness has traded adverse testimony for the government’s motion for a reduced sentence, the defense has provided the jury with sufficient information upon which to judge the witness’s motivation for testifying and his or her corresponding credibility. The length of the sentence the cooperating witness would otherwise face—even where certain because of an applicable statutory minimum – is marginally relevant in light of testimony about the existence of an agreement generally. Such evidence may be excluded at least where, as here, the jury may have improperly inferred that the defendants faced sentences of similar duration.” Id. at 10278-79.

Of Note: One snitch faced a five-year mandatory minimum; the second, life. Id. at 10275. The fact that Snitch A was facing five years was of “slight probative value,” explained the panel, because “a five-year sentence is not particularly lengthy.” Id. The panel’s dismissal of this exposure as evidence of bias is staggering, particularly because Snitch A was the twenty-two year old mother of a two-year old baby. Id. at 10277.

Snitch B’s exposure to a “statutory life sentence” has greater probative value,” reluctantly concedes the Court. Id. at 10275. (Gee, do you think?) The panel hold that this evidence of bias was properly excluded, however, because the jury might improperly infer that the defendants were looking at life. Id. at 10276. Actually, the jury could have inferred that the defendants faced a sentence of anywhere from five years to life – the two snitches’ exposures. Moreover, the Ninth has reassured us ad nauseam that jury instructions cure all: why wouldn’t a simple cautionary jury instruction to “not consider punishment as a factor in the defendant’s guilt” cure this potential prejudice?

Larson is fundamentally unfair and is divorced from the realities of criminal practice. Snitch A was never really going to get the stat max of forty years: the five year mandatory minimum was the real motivation for this 22-year old mother to lie on the stand. Snitch B was working off life in prison: the most motive to lie imaginable. Any experienced practitioner knows that mandatory minimums drive defendants to cooperate in the vast majority of 5K cases – and the Ninth here tolerates the entire subject being off limits for the jury? Larson should go en banc -- the Montana folks are preparing the petition now. That we have to tolerate snitch testimony is a sad fact of federal practice; that this testimony cannot be meaningfully tested at trial goes too far.

How to Use: Larson does not say mandatory minimums are never fair game for cross. Instead, the panel held that this defense was allowed sufficient cross – and the life sentence carried sufficient prejudicial impact – that the limitation on cross did not violate the Confrontation Clause. Id. at 10278. Distinguish the 3-prong analysis of Larson (id. at 10274) when a court tries to shut down your cross: the government will undoubtably read the case far too broadly.

For Further Reading: 47-year old defendant Patricia Larson got eight years in this case. See press release here. Cooperator Joy Potria got 41 months, about twenty months off her 5-year mand-min. Cooperator Rick Lamere got 38 years, with some Rule 35 action possible.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org
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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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U.S. v. Hayat, No. 07-10457 (03-13-13) (Berzon with Schroeder; dissent by Tashima)

"Scrupulous fulfillment of [the constitutional to do justice] is all the more critical when the government asks a jury to deprive a man of his liberty largely based on dire, but vague, predictions that he might commit unspecified crimes in the future. Because this duty was not fulfilled [here], I would reverse the conviction and remand for a new trial." (p. 59). Stirring language. Too bad it is from the dissent by Tashima. The majority affirmed the conviction for providing material support for terrorists and false statements. It did so in the face of possible foreperson misconduct ("they are all alike," statements about better to convict an innocent that risk an attack, and calling an alternate), curtailing an expert witness, and barring an exculpatory statement because the defense counsel failed to argue a correct hearsay exception. According to the majority, it could not be proved, absolutely, that at the time of the jury deliberations, the foreperson was biased. Sure these statements were questionable, but when he was questioned, he said that he was unbiased, and the court gave great deference to the district court. The majority also held that the district court did not err in admitting expert testimony about the implications of an Arabic note, while was within its discretion in barring a defense expert as being unqualified. Finally, a defense statement was properly excluded as the basis for its admission was not argued. Dissenting, Tashima, as indicated above, believes that the trial was unfair, and should be reversed.

Knight v. Ahlin, No. 10-56211 (3-13-13)(Per curiam with Goodwin, Kleinfeld, Silverman)

The petitioner, a convicted rapist, was scheduled to be released from state prison. Just before, the state moved for his civil commitment as a sexually violent predator. This was in 2004. The petitioner was held...and held...and held so more. Defense counsel kept continuing the trial, and the state never pushed for it. The petitioner kept asking for a trial. Eventually, the petitioner went to federal court. Stop, argued the state, because the Younger doctrine barred the federal courts from interfering. No, said the 9th, Younger does not apply because the state proceeding must be ongoing. This definitely was not ongoing. The petition is granted.

Congratulations to Matt Larson, Deputy Federal Defender, Cen. Calif. (Los Angeles).

 

U.S. v. Alvirez, Jr., No. 11-10244 (3-14-13)(Rawlinson with Nelson and Ikuta)

The 9th reverses a conviction for an aggravated assault arising out of Indian Country jurisdiction because the court abused its discretion in admitting an unauthorized Certificate of Indian Blood. The document was not self-authenticating, as tribes are not listed as a sovereign that can self authenticate under the rule, and the witness did not recognize or had knowledge of the Certificate. The case is remanded. the 9th also found, in case of retrial, that the defendant could still mount a challenge to the conviction and that the court's warning that he might open the door to admission of a polygraph session was not a bar or too chilling.

Congratulations to AFPD Dan Kaplan of the D. Arizona (Phoenix).

Milke v. Ryan, No. 07-99001 (3-14-13)(Kozinski with Farris and Bea)

Lies and mendacity. That would be the motto of a Police Detective in Phoenix who wrung a confession out of petitioner, for supposedly arranging for the murder of her son. She denied it, and said she invoked. The trial was a swearing match. Unbeknownst to the defense team, the detective had a record of lying, been disciplined for lying, and was the subject of court orders about lying. The State did not turn the material over. The 9th, aghast (and pretty egregious for this panel) found a clear violation of Brady and Giglio. The state courts seemingly missed this (an implication that the state post-conviction exhibits were not read), and the decision ran counter to clearly established federal constitutional law.  AEDPA did not bar.  The denial is reversed, and the case remanded with instructions regarding hearings and conditional granting of the writ. The panel also is sending a copy of the opinion to the US Attorney to see if federal laws had been violated. Kozinski concurred, finding also that Miranda had been violated and that the so-called confession should not have been allowed.

U.S. v. Rosales, No. 05-30260 (2-13-08). This is an affirmance of a conspiracy and possession with intent convictions. The defendant argued that there was insufficient evidence for a jury to find that the conspiracy was for more than 500 grams or that he possessed with intent to distribute on a certain date. The 9th (Guilford joined by Kozinski and Fisher) didn't buy it, in finding that co-conspirators did, in fact, buy it. The opinion goes metaphoric, in describing the tapestry of evidence, with strands that have little meaning until the whole is woven, and warped, and so forth. (But if there is error, could one then say that the whole weave should unravel, and thus prejudice could be the slightest loose thread? Just a thought). The 9th did go through the wiretap, and the "code" of drugs and amounts to show that a jury could connect the dots. The 9th did find for the government in its cross appeal that an 841(b)(1)(B) mandatory sentence should apply because of a prior state drug conviction.

Larson v. Palmateer, No. 04-35465 (2-13-08). Petitioner murdered his father and step-mother. Petitioner went through three sets of counsel, when the state court court said "enough" and refused a fourth set. Petitioner went pro se with stand-by counsel. The 9th affirmed (Fisher joined by Berzon and Barziley), recognizing that the Sixth Amendment requires adequate counsel, but does not require a warm and fuzzy relationship. At trial, the state court committed various errors, such as shackeling petitioner, and then, two days into a six-day trial, telling the jury that the "leg shackles" were being removed because of a physical impairment. The federal courts thought it wrong that no findings were made as to why shackles were required, nor about the jury instruction, but harmless it was, as was the failure to exclude witnesses by the state court although requested by petitioner. The 9th excused it, under AEDPA deference, because there was no evidence that state witnesses "tailored" their testimony (it was a day for swing and weaving metaphors. See above).

Anderson v. Terhune, No. 04-17237 (2-15-08) (en banc). "I take the Fifth!" So, is that a request for Beethoven's symphony at a record store? Is it a request for a bottle at a package store? Or is it an invocation of the right to silence. The 9th, in an en banc decision, forcefully holds that a defendant who states "Take the Fifth" wants to stop the questioning. This is a state case (California) where the petitioner was suspected of murder. He was questioned for a number of hours in custody (he had been arrested on a parole violation before the interrogation started) and although he tried to stop the questioning by invocating, the police refused to be daunted. The state courts held that the statement "take the Fifth" was ambiguous and that efforts to clarify resulted in a waiver. Reviewing en banc, the 9th (McKeown) found that the statement "I Take the Fifth" was emphatically an invocation. The 9th stressed that anything else would be a mockery and undermined the intent of Miranda and Dickerson. Under AEDPA, the 9th concluded that the state court's findings were unreasonable and that the Supremes had articulated the test which the courts failed to follow. In a concurrence, Silverman, joined by Rawlison, parse the statement a bit. The concurrence would find that the statement "take the Fifth" was somewhat ambiguous because it may have meant a subject matter (drugs) as opposed to murder, or a different context. The officer could clarify but overstepped the bounds when the questioning continued. Bea concurred and dissent, finding that a waiver had occurred after the statement (although there was a mysterious "turning off the tape recorder). Dissenting. Tallman (joined by Callahan) would find that the statement was ambiguous. It is a strange dissent that in arguing the police were unclear what the petitioner kept asking, turns precedent on its head. For example, Tallman cites Davis as allowing officers to clear up ambiguities, but that opinion also states (Souter) that the invocation requires no specific magical words, and the articulation of an Oxford Don was not necessary. Tallman's dissent would clearly give a blank check to state courts under AEDPA unless there was an exact, down to the very phrase, Supreme Court case on point.

This is an important decision as to ambiguity and on invocation.

U.S. v. Hir, No. 07-10500 (2-15-08). The 9th (Reinhardt joined by Goodwin and W. Fletcher) reviews the decision to hold an American citizen charged with aiding Filipino terrorists as a danger. The 9th holds that the government had carried the persuasion that the defendant was a danger, looking to the types of aid he allegedly had given (communications, firearm accessories, "contacts," and even phones that could be used in explosives). The case turns on "danger to the community." Is the community the judicial district (N.D. Ca)? Is it the United States? Can it be a foreign community? The 9th does not come out with a rule. The community is not just the judicial district; and it can be wider. Under these facts, the community can be considered the Philippines, and the type and extent of defendant's ties to his brother's terrorist organization, with the presented evidence, satisfies the danger analysis. Moreover, there are no conditions that could assuage this danger as presented. This is an opinion, although coming out for detention, that has good analysis as to how danger can be mitigated. The district court had found that the defendant's presence could be assured by conditions.

U.S. v. Castenada, No. 05-10372 (1-15-08). In one of the first post-Kimbrough decisions, the 9th remands a crack conspiracy conviction for resentencing. At sentencing, the district court acknowledged that the crack penalties may be "out of whack": but it was not for the district court to change them; that was up to Congress. "Wrong," said the 9th (Nelson joined by Goodwin and Callahan). The Booker remedy of advisory Guidelines extends, under Kimbrough, to crack/cocaine disparity, and the district court could, and should, consider it as a sentencing factor.

U.S. v. Ross, No. 06-50569 (1-14-08). So what if a court skips a section of the Benchmark that deals with, oh, "proof beyond a reasonable doubt." Is it so prejudicial under a plain error standard that the plea should be vacated? Nope. All agree that there was a clear Rule 11 (colloquy) violation, but it is not if the defendant did not have wind that the government had to meet that burden. The review is not restricted to the testimony of the plea. Here, the defendant had signed a plea agreement that laid out the burden, and in an affidavit to withdraw his plea, he stated that he thought the government had to prove drug amounts beyond a reasonable doubt. The defendant cannot show that he was prejudiced. The 9th holds therefore that the district court's failure to advise about the burden of proof is not per se plain error. The 9th does remand though under Ameline in light of Booker's advisory Guidelines holding.

U.S. v. Calvert, No. 06-30643 (1-14-08). This is an "obstruction" adjustment Guideline question. Can one get an obstruction bump if there is no pending criminal case? The 9th (Larson joined by Gould) said "sure" in an expansive opinion about the sanctity of the criminal justice process. The facts here involve a tax protester who went to prison because of a witness's testimony. The protester -- here the defendant -- is released, and vows vengeance. He recruits someone he served time with, puts him in his debt, and then sends him on a mission to possibly kill the witness. There is a home invasion, and the invader is shot, and dies. The investigation traces the impetus back to defendant. He is convicted on various counts of conspiracy, prohibited possessor and so forth. He also gets an 8 level adjustment under 2J1.2(b)(1) for obstruction. The 9th holds that this was proper given the circumstances, and the fact that the obstruction occurred after the conviction, and in the absence of any proceeding, was not a bar. The 9th goes on to wax lyrical about the need to protect witnesses, and how expansive the need to protect or the dangers of obstruction are. Concurring, with concern, is B. Fletcher, who goes along with the holding, but says, in effect, "wait a minute, we're deciding just this case, and not putting together a list of how every proceeding could be obstructed, or a test as to when and where an obstruction might occur." B. Fletcher would decide the case on these facts and leave it at that.

Case o' The Week: Defense shanked by Styrofoam "knife," Malik Smith

A slow week in the Ninth for criminal decisions lets us stretch back a bit and discuss what may be one of Judge Michael Hawkins' (left) last en banc decisions: United States v. Malik Smith, No. 05-50375, 2009 WL 750279 (9th Cir. Mar. 24, 2009), decision available here.

Players: Hard-fought case by C.D. Cal. AFPD Davina Chen. Decision by Judge Hawkins, dissent by Judge Berzon.

Facts: Prison officials caught inmate Malik Smith stabbing another inmate with a shank made out of melted Styrofoam lunch trays. Id. at *1. The knife had a sharp point and caused a number of lacerations, but broke during the assault. Id. Smith was charged with assault with intent to commit murder, and assault with a dangerous weapon. Id. at *2. The standard jury instruction – given over defense objection – stated that a “prison-made knife is a dangerous weapon if it is used in a way that is capable of causing death or serious bodily injury.” Id. at *2. Smith appealed after conviction on the “dangerous weapon” assault-charge, arguing that the instruction had relieved the government of its burden of proving that the shank was in fact a “dangerous weapon.” Id.

Issue(s): “We . . . consider whether a jury instruction impermissibly relieved the government of its burden to prove beyond a reasonable doubt that the defendant used a ‘dangerous weapon’ and whether any error in the instruction was harmless.” Id. at *1.

Held: “Although we hold there was a ‘reasonable likelihood’ the trial judge’s instructions ‘misled’ the jury to think they did not have to determine beyond a reasonable doubt that the defendant used a dangerous weapon . . . we nevertheless affirm Smith’s conviction because we conclude that it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” Id. at *1 (internal quotations and citation omitted).

Of Note: The majority readily concedes the instruction was erroneous: the real fight is whether this was Neder harmless error. Id. at *3-*4. Judge Hawkins first describes a “dangerous weapon” as something that can cause “great bodily harm” – and defines that term for the first time in the Ninth by reference to an analogous statute. Id. at *4. Because the Smith’s Styrofoam shank sliced the victim’s eyelid – and could have pierced his eye – the majority finds the knife was both inherently dangerous and used in a manner that risked great bodily harm. Id. at *4-*5.

Dissenting Judge Berzon (joined by Judges Schroeder, Reinhardt, Wardlaw, and Paez) doesn’t buy it. Id. at *6. The Styrofoam “knife” broke when Smith hit the victim in the back, and that wound just required first aid. In short, it isn’t clear that the shank could have reached vital organs. The government’s medical “expert” – who had twice failed the medical boards – didn’t persuade the dissenters otherwise. The five dissenters (just one short!) would have left the fact-finding on this critical element to the jury – a persuasive argument, particularly in this post-Booker world.

How to Use: Judge Berzon invites the defense to tackle the traditional federal definition of “dangerous weapon” – which has included things like a shoe, a pot, or a chair. Id. at *6 n.1. In her view, that stretches the term “weapon” too far – Congress didn’t mean to deter folks from “wearing shoes, cooking in pots, or sitting in chairs and then deciding to use them to hurt someone.” Id. An interesting issue to flag for a future case.

For Further Reading: Judge Michael Daly Hawkins, a Clinton appointee, recently announced his intention to take senior status. See Ninth Circuit press release here. While a former United States Attorney, Judge Hawkins doesn’t hesitate to hold the government’s feet to the fire. See United States v. W.R. Grace, 525 F.3d 499, 524 (9th Cir. 2008) (en banc) (Hawkins, J., concurring), decision available here. He also is a strong advocate for a defendant’s Confrontation Clause rights. See United States v. Larson, 495 F.3d 1094, 1113 (9th Cir. 2007) (en banc) (Hawkins, J., dissenting), decision available here . While Judge Hawkins will still maintain an active caseload, his senior status may allow a bit more time for his passion for herpetology (and specifically, Arizona Diamondbacks).


Photo of the Hon. Michael Daly Hawkins courtesy of the Wired.com blog at http://blog.wired.com/27bstroke6/2007/08/nsa-hearing-ope.html . Arizona Diamond Backs logo from http://www.justsportsazonline.com/images/ARI_6dlxgmecbzj3i8f3h483%5B1%5D.gif

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

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US v. Larson, No. 05-30076 (8-1-07) (en banc). The 9th, in a strange split (Paez writing for the en banc majority of Schroeder, Fisher, and Gould), holds that a confrontation clause violation occurred when the trial court limited the cross of a witness facing a mandatory minimum sentence without a government motion for substantial assistance. Although constitutional error was found, the 9th deemed it harmless given the weight of evidence. The 9th also resolved the intra-circuit split on the proper standard of review of cross examination restriction. One line of cases used de novo; another abuse of discretion for limitation; and a third employed a mixed approach. Here, the 9th holds that: "If a defendant raises a Confrontation Clause challenge based on the exclusion of an area of inquiry, we review de novo. In reviewing a limitation on the scope of questioning within a given area, we recognize that 'trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination, based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.'" (citation omitted) (slip at 9152). A challenge to an precluded area is de novo; a challenge to the manner or scope of cross on nonconstitutional grounds is abuse of discretion. This approach follows the Supremes in Van Arsdall, 475 US 673 (1986) and other circuits.

Turning to the error in the case here, the trial court was compelled to have permitted defense counsel question about mandatory minimums, and the need for a government motion to get under it. In this case, it was a mandatory life sentence.

Concurring, Graber joined by Rymer, Tallman, Clifton, Bea, M. Smith and Ikuta, would find no Confrontation Clause violation in failing to question on the mandatory minimum sentence. Confrontation is satisfied when there are questions about bias and motive; there was no specific need to go into the specific mandatory minimum given the extent of the cross on bias and background. Here, the defense established that the witness had a motive to lie.

Dissenting, Hawkins joined by Pregerson, Reinhardt, and Wardlaw would hold that the error was not harmless.

US v. Goetzke, No. 05-30267 (8-1-07). In a per curiam decision, the 9th affirms a conviction for attempting to persuade a minor to engage in unlawful sexual activity in violation of 18 USC 2422(b). The defendant had met the minor while the minor was staying at a family friend's ranch in Montana. At the ranch was defendant, who was a registered sex offender. The family brought the minor home, but the defendant started to write, and describe both sexual acts, and a possible meeting. A jury could rationally find that the letter writing, descriptions, and plans to commit unlawful acts (1) advanced a criminal purpose; and (2) provided some verification of the existence of that purpose.

U.S. v. Caseres, No. 06-50546 (7-21-08). The 9th drew a line when it comes to car searches. The police were patrolling in an unmarked car when defendant (oops) made a right hand turn without signalling and the police thought that his passenger windows were tinted too dark. The police began to follow the car, lost him, and found him again. Defendant had parked his car a block and a half away from his house, and was walking to his home. The police approached him, and defendant said some not nice things. A foot chase preceded, which ended with defendant, exhausted, being arrested. The police then waited a bit before searching defendant's car incident to arrest. A firearm and ammunition was found, which was a problem because the defendant had a felony, and was on parole. On appeal from denial of the suppression motion, the 9th (Pregerson joined by Bright and Wardlaw) said, "Whoa, the police can't just search the car because the defendant was arrested outside." The 9th does find that there was no probable cause to arrest him fort he traffic violations because such a turn, if it did not interfere with traffic, was legal, and who knows about the tint? However, there was probable cause to arrest him for threatening an officer. The 9th then went to the car search, and reverses the district court and suppresses the evidence because of a bad search. The opinion goes through all the justifications the government offers -- search incident to arrest, inventory, parole -- and finds them wanting. The 9th keeps going back to the fact that the defendant had left the car, and was going home. The car was parked close to his house, on a residential street, and all the so-called justifications for search, close to the defendant upon arrest, or need to secure the vehicle, were not present. The opinion provides a nice overview of the state of car searches in the 9th, especially when distance and time separates the arrest from the search.

Congratulations to AFPD Jonathan Libby of the Central District of California (Los Angeles) for the win.

Houston v. Schoming, No. 06-15523 (7-22-08). Okay, let's get it out of the way: "Houston, we have a problem," says the 9th (Larson joined by Canby). The problem arises from an attorney conflict-of-interest. Petitioner was charged with various counts of attempted murder and firearms resulting from a long-running feud between the petitioner and the victim and his family, the Chadwicks. The petitioner moved for a continuance so he could retain a lawyer. The denial of that motion was not error given the timing,and lack of basis. However, the attorney's motion to be relieved because of a conflict will result in a granting of the petition. The public defender office had represented the state's star witness, Chadwick, in a prior shooting at Houston. The lawyer stated that he was conflicted -- he felt that Chadwick got a raw deal, that he was innocent, and that there was motive in Houston now shooting back. The state trial court denied, as did the state supreme court on the record, basing the denial on the fact that Chadwick had waived attorney-client, the public defender had not personally represented Chadwick, and the shootings were not factually related (!). The district court acknowledged that the facts were related, but denied the petition because Chadwick had waived. The 9th held that the focus should have included petitioner's right for a conflict free counsel, and counsel's own ambivalence in turning on a former client. This deserved an evidentiary hearing. In dissent, Smith expressed concern about floodgates being opened as defender offices are conflicted off matters (ed note: happens all the time -- that's why there are alternate defender offices, contract lawyers, or panels), and because there was no showing of prejudice: the evidence the petitioner points to, like polygraphs of the victim and parole status, were arguably precluded under state evidentiary rules.

Congratulations to AFPD Anne Traum of the District of Nevada (Las Vegas) for the win.

Case o' The Week: Right on Cue, Bybee Gets Confrontational

In a very good decision, Judge Bybee explains the application of the Confrontation Clause -- and mulls over the differences between cue balls and pool balls along the way. Slovik v. Yates, __ F.3d __, 2008 WL 4459083 (9th Cir. Oct. 6, 2008), decision available here.

Players: Decision by Judge Bybee, joined by Judges Canby and Kleinfeld.

Facts: Slovik, drunk, got into a bar brawl. Id. at *1. He tussled with the bartender, did backflips through the bar (?!?) and – most importantly – threw cue balls (or maybe pool balls) – at witness Featherstone (or maybe not). Id. & n.2. Whatever type of balls were thrown, no one was hit by them. Id.

Slovik went to trial at got 40 to life. Id. at *2. (Three Strikes in action). Id. Appeals and state and federal habeas petitions went nowhere: the habeas ultimately came to the Ninth. Id. at *3.

At trial, Slovik’s attorney asked the State’s central witness, Featherstone, whether he was currently on probation. Id. at *2. “No,” answered Featherstone. Id. Slovik’s attorney had a form that showed Featherstone was actually on five years of probation at the time for a DUI. The trial judge, however, shut down the cross because it would “be too time consuming.” Id.

Issue(s): Slovik contends “that his confrontation clause rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated when a California trial court prevented him from asking questions on cross-examination that would establish that one of the prosecution’s key witnesses had likely lied under oath.” Id. at *1.

Held: “For the reasons explained below, we agree that Slovik was denied his confrontation rights and that the right was clearly established; accordingly, we reverse.” Id.

Of Note: One unintended consequence of Three Strikes laws is that suspects facing their third strike are more likely to react violently when approached by police officers. See Carlisle Moody, Thomas Marvell, Robert Kaminski, Unintended Consequences: Three Strikes Laws and the Murders of Police Officers, Nat’l Institute of Justice, 2002, available here.

Is another unintended consequence more-vigorous federal habeas review of Three Strike convictions that carry these draconian sentences? Of course, it goes without saying that the Slovik panel undoubtably viewed this case from a purely legal perspective, and surely would have reached the same result if Slovik had received an eighteen month sentence for a simple assault conviction. Still . . . there’s much talk in this opinion of Slovik’s “40 years to life” sentence – a fact that (technically) isn’t relevant to the confrontation clause analysis.

Equity still speaks, albeit quietly.

How to Use: There’s much to like in Slovik, and many useful quotes for cross-examination battles. One helpful reminder is that the confrontation clause analysis focuses on the one witness at issue, not the gestalt of the whole trial. Id. at *5. Here, the State complained that none of its witnesses were “picked from a Sunday school choir,” so any limitations on the Featherstone impeachment didn’t significantly alter the jury’s view of his credibility. Id.

Not so, countered the Ninth, because problems with other witnesses “bears no relevance in the confrontation clause analysis, which asks whether impeaching Featherstone would have produced a significantly different impression of Featherstone’s credibility.” Id. As the Court emphasized (quoting the Supremes in Van Arsdall), “the focus of the Confrontation Clause is on individual witnesses and thus the focus of the prejudice inquiry in determining whether the confrontation right has been violated must be on the particular witness, not the outcome of the entire trial.” Id.

Harmless error remains a hurdle on appeal, but for the trial court, Slovik’s emphasis on confronting the individual witness is a handy quote to have on hand when a judge tries to shut down defense cross-examination.

For Further Reading: One of the Ninth’s Big Issues of late has been the Confrontation Clause. For a blog on the lead case on this critical subject, visit our blog here (discussing en banc Larson decision).

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

US v. Morales-Perez, No. 05-10115 (11-13-06). In a 1326 appeal, the 9th (Tallman joined by O'Scannlain and Goodwin) applies a Taylor categorical analysis to hold that under California statute, "purchase with intent to distribute" is a drug trafficking offense and so gets the agg felony Guideline enhancement. The 9th concludes that the federal definition of drug trafficking render it insignificant whether the defendant possessed the drugs with intent to distribute, or purchased them with than intent.

US v. Martinez-Martinez, No. 06-10015 (11-14-06). A person's home may be a residential structure, but is a residential structure always a home? This question, with implications for the 16 level agg adjustment for a "crime of violence," in a 1326 case, was at issue here. The 9th construed an Arizona statute that criminalizes discharging a firearm at a residential structure. The harm at firing a home is clear; but what if the residential structure is not inhabited, is vacate, or is still being built? The 9th (Larson joined by Rymer and Thomas) hold that it is not a "crime of violence" under Taylor's categorical approach, and a modified approach still provides no further basis of facts to show that it was an inhabited house. This opinion, very thorough and comprehensive, describes Taylor, the 9th's precedent in Cortez-Arias, 403 F.3d at 1114, which construes a California statute about firing at an inhabited house, and then the difference with the Arizona statute, which also covers clearly uninhabited residential structures.

US v. Montgomery, No. 05-10587 (8-29-06). In an Ameline remand, the 9th (Pregerson) requires that the district court ask counsel about resentencing. The 9th had language that stated "should" consult, but when read in context, the "should" is mandatory. The district court doesn't necessarily have to hold a hearing, but at a minimum should ask for counsel's views in writing. The case here concerned a large fraud involving the Bank of Saipan, and on an Ameline remand, the district court statted, with no input from counsel, that that a resentencing wasn't necessary because the original sentence (240 mos) was appropriate. The 9th is telling the resentencing judges, even if they think they've heard it all before, they still must give us a chance to state our views.

US v. Johnson, No. 05-10708 (8-29-06). The 9th shoots down the possibility of a "transitory" possession affirmative defense in felon in possession cases. The police came by on a domestic call, and found a weapon on defendnat's bed, along with his wallet, and the girlfriend said "it's his." The defense was that he found the weapon on the way hom, near a school, and he was going to hand it over to the police. The DC Circuit allows such a defense, but the 9th (O'Scannlain) roundly rebukes the defense, finding no basis for it in the statute's mens rea, nor on policy grounds, and also supports the ruling but stating that disallowing the defense will protect (!) the defendnat from perjury. The 9th joins the 1st, 2nd, 4th, 7th and 11th in saying "no" to transitory or innocent possession (just holding it for an innocent purpose). The 9th does have language that the standard for a theory of defense instruction is above a scintilla, but not much, and that weak evidence can still trigger an instruction. That is what jury's are for. (The irony of couse is that the author of the opinion -- O'Scannlain -- recently wrote in Larson that cross examination of a cooperator's deal as to sentencing guideline benefits and machinations can be limited to prevent of jury confusion. Shouldn't a jury be allowed to weigh and balance benefits and bias?)

US v. Ruiz, No. 04-10308 (8-30-06). The gov't argued that the presence of guns in a house with a meth lab meant that two co-defendants and co-conspirators possessed them. The 9th said "no," reversing the convictions (and 30 year sentences) on sufficiency of evidence. The guns were scattered in the house, but no fingerprints linked them to the defendants; no statements were made indicating possession; no co-conspirator testimony tied them. Simply because guns were scattered with drugs, without some evidence. is insufficient. The defendants were caught outside the house and others escaped. The 9th refused strict liability. On another issue, the 9th held that a preliminary reasonable doubt instruction in which the judge riffed about DNA and all doubt was not error as it got the essence across and the standard instruction was given at the end.

US v. Larson, No. 05-30076 (8-28-06). This is written in black instead of my usual blue because it can serve as an obituary for cross-examining a cooperating witness (aka "snitch"). Okay, maybe I'm melodramatic, but this is an opinion that does constrict the right to probe bias, and to get in front of the jury the various machinations of the guidelines and sentencing. The case involves in the usual meth conspiracy. Of course, some codefendants cooperated, and got pretty good deals. On cross, defense counsel wanted to question about the deals, and sentencing. The district court limited such questioning to the maximums, and not to the minimums faced, and not about the witness's understanding. On appeal, the 9th (O'Scannlain) affirmed the rulings. The 9th reasoned that bias was probed with the maximums faced, and that there was prison involved, and that the US Atty had to move for cooperation. Indeed, defense counsel did pretty well about the effects of prison, and the virtues of a plea. Still, the 9th's limiting of cross on this issue of deals and incentives and understanding was unfortunate.

It could be taken to limit such questioning even more, especially about the intricacies of the guidelines, and expectations.. The 9th stated that the jury shouldn't be confused with does seem to run counter to the expansiveness of Crawford.Speaking of which, the 9th also held that coconspirator statements. The 9th also found that defendants sitting behind counsel, and not at counsel table, was not fundamentally unfair, but was necessitated by security and space.

[*Ed. note -- I filed an amicus brief in support of en banc rehearing after the three-judge panel opinion came out against the petitioner in the first summarized case.]

1.  Frost v. Gilbert, No. 11-35114 (en banc) (Kozinski with Thomas, Reinhardt, Wardlaw, Paez, and Nguyen; dissent by Tallman, joined by Rawlinson, Bybee, Callahan, and M. Smith) --- On remand from the Supreme Court, see  135 S. Ct. 429 (2014) (per curiam), the en banc panel unanimously affirmed the denial of habeas relief to a Washington state prisoner, holding that the trial judge's limitation on the scope of closing argument was harmless.  The panel also unanimously affirmed the district court's denial of the petitioner's Bradyand Napue claims, although a bare majority of the panel found that the prosecution's withholding of a cooperating witness's plea agreements constituted cause to excuse the procedural default of this claim.

The petitioner was convicted of a "string of armed robberies" that took place in 2003.  At trial, he argued alternative theories of defense -- that the prosecution hadn't met its burden, and that he acted under duress.  The trial judge prevented him from arguing both of these theories in closing argument; he chose the duress theory, which the jury didn't believe.  The Washington Supreme Court held that limiting the scope of closing argument was error, but that the error was harmless.  A three-judge panel of the Ninth Circuit agreed, but then the case went en banc, and a 6-5 en banc panel held that the error was structural and thus granted relief.  The Supreme Court reversed in a per curiam opinion, leaving the Ninth Circuit to consider the harmlessness question.  In light of the "overwhelming evidence" that the petitioner had committed the charged offenses, "any argument that the prosecution failed to meet its burden of proof would have fallen on deaf ears."  Thus the en banc panel unanimously affirmed the denial of relief on the claim involving the restricted scope of closing argument. 

So much for the first two paragraphs of the opinion.

The remainder of the opinion -- and the bulk of Judge Tallman's dissent -- concerns the petitioner's claims under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959).  These claims related to the testimony of a key prosecution witness, who had testified against the petitioner pursuant to plea agreements in two cases of his own.  The prosecution presented inaccurate testimony to the jury about the scope of these agreements, particularly failing to disclose that the witness had settled more than one pending case against him.  Without knowledge of these agreements, the petitioner failed to raise his Brady and Napue challenges both on direct appeal and in his first round of state habeas proceedings.

After his direct appeal was over, the petitioner asked the county attorney for public records about the witness and his use as a police informant.  He was told that there were about 1000 pages of responsive material, and it would cost $195 for him to obtain it.  He responded that he didn't want the entire file, just "any documents that could show any special treatment" that the witness received from the King County Attorney.  The petitioner was then told that there was no such responsive material.  He responded that he knew the witness had given statements in a particular case, and was given documents in the one case that was mentioned during his trial.  It was only after the Federal Public Defender in Seattle was appointed to his case that he received the documents.  He filed a second round of state habeas proceedings, which were dismissed as untimely, and then the federal court held the Brady and Napue claims procedurally defaulted pursuant to an adequate and independent state procedural rule.

Because a meritorious Brady claim can essentially be used to excuse its own procedural default, the en banc panel then turned to the merits of the claim.  Six judges on the en banc panel found cause to excuse the procedural default stemming from the prosecution's withholding of the necessary documents.  The fact that the petitioner was investigating his case on his own helped -- he did not have access to the public court file (unlike his appointed federal counsel), and could not be faulted for limiting the scope of his public records search when it proved too expensive for an incarcerated prisoner.  The prosecutors assigned to the witness's case should have turned over the documents to the prosecutor in the petitioner's case, who should then have turned the documents over to the petitioner.  Thus the petitioner's failure to file his Brady and Napue claims in a timely manner under state law was not his fault.

On the question of prejudice, the en banc panel unanimously found none.  The withheld information wouldn't have changed the picture of the witness's testimony before the jury, because they already knew that he had struck some kind of deal with the prosecution.

Then Judge Kozinski called out by name the state actors involved in suppressing the information relating to the witness's plea deals.  (Judge Nguyen did not join this part of the opinion, so it speaks only for a five-judge plurality.) 

Judge Tallman disagreed with the decision to examine the Brady and Napue claims at all.  Despite the fact that the petitioner's federal counsel doggedly pressed the claims at each stage of the appeal, Judge Tallman complained that the petitioner did not petition for certiorari on the issues and that the Supreme Court had not specifically remanded them for further consideration.  He also strongly disagreed with the decision to name the state actors involved.

Kudos to former Seattle AFPD Erik Levin for fighting the good fight.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/21/11-35114.pdf

2.  United States v. Nickle, Nos. 14-30204, 14-30229 (Kozinski with Fletcher and Fisher) --- The Ninth Circuit vacated a conviction on drug charges where the district judge refused to accept a guilty plea because the defendant did not volunteer enough information about his criminal activity, over and above what was necessary to establish a factual basis for the plea, to the district judge's satisfaction.  The court also held that a defendant must be permitted to cross-examine cooperating witnesses about the benefits they received for their cooperation.  Finally, the court held that a judge may not direct that forfeited monies be used to fund an indigent defendant's representation under the Criminal Justice Act.  In light of all these errors, the court directed that the case be reassigned to a different district judge on remand.

The defendant was charged with drug possession and other more serious crimes.  The government offered him a plea bargain -- in exchange for his guilty plea, the government would drop the more severe charges and make favorable sentencing recommendations.  But the district judge refused to accept the defendant's guilty plea because the defendant did not "admit enough information for the judge to make a reasonable decision about his drug activity."  So the defendant went to trial, where the judge prevented him from cross-examining cooperating witnesses about the benefits they received for their cooperation.

The Ninth Circuit held that the judge had no right to refuse to accept the defendant's guilty plea under these circumstances.  The defendant did what he was required to do -- admitted to the elements of the crime.  "There is no requirement in Rule 11(b) that the defendant himself give an in-depth account of his crime or confirm that everything in the government's offer of proof is untrue."  The judge is only allowed to reject the guilty plea if he had doubts about whether the defendant understood the charges or was disputing his guilt -- and then he must explain why he is rejecting the plea.  And the judge's refusal to accept the guilty plea made the defendant worse off in this case, because he went to trial and was convicted on more serious charges.

The Ninth Circuit also held that the terms of the cooperating witnesses' deals with the government were relevant, and the district judge erred by concluding that because the government had not yet bestowed those benefits (here, by filing a motion under Rule 35 for a sentence reduction), the terms of the deals weren't relevant.  The judge further erred by failing to identify a proper basis under Rule 403 for excluding this relevant evidence.  The Ninth Circuit specifically called out the district judge here for not heeding its opinion in United States v. Larson, 495 F.3d 1094 (9th Cir. 2007) (en banc), chastizing the district judge for threatening defense counsel with sanctions for pursuing a line of inquiry that the Ninth Circuit had previously held was proper. 

These two errors, along with the district judge's order directing that forfeited monies go to pay for the defense, led the Ninth Circuit to direct that the case be reassigned.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/21/14-30204.pdf

* Keith Hilzendeger, AFPD, District of Arizona, writing for Jon M. Sands who is out of district this week.