Case o' The Week: You Can't Always Get What You Want (Gallaher and Conditional Pleas)

For what is quite likely the first time in a federal appellate decision, the Ninth quotes the Stones in the first line of a published opinion. In re: James H. Gallaher, Jr., __ F.3d __, 2008 WL 4877454 (9th Cir. Nov. 13, 2008), decision available here. An apt quote, too: this decision on conditional pleas is likely to leave everyone grumbling, a little . . .

Players: Win – sort of – by ED Wa. & Idaho Ass’t Fed. Def. Stephen Hormel.

Facts: Gallaher was charged with first degree murder, and raised an (unsuccessful) statute of limitations challenge. Id. at *1 & n.1. He entered a conditional plea agreement, where he plead to involuntary manslaughter and retained the right to appeal the denial of the S.O.L. motion. Id. The agreement allowed him to withdraw his guilty plea if his appeal was successful. Id.

District Judge Whaley “conditionally approved” the plea, but said he wanted to wait and see the PSR before his final decision. Id. There followed a “whose on first?” dialogue where the court and defense counsel debated whether the court was “conditionally” accepting the plea, or the plea agreement. Id. at *1-*2. The court ultimately got the PSR, rejected the “conditional plea,” and set the case for trial. Id.

Gallaher filed a petition for a writ of mandamus, seeking an order directing the court to accept the guilty plea, and reassignment to a new judge. Id. at *2.

Issue(s): 1. Consent: “[W]hether the district court did in fact withhold its consent [to the conditional plea]?” Id. at *3.

2. Rule 32: “Whether the district court erred by reviewing the PSR before rejecting Gallaher’s conditional plea.” Id. at *3.

Held: 1. Consent: “Because the district court exercised its discretion to reject the plea, the petition for writ of mandamus is denied.” Id. at *3. 2.

Rule 32: “Because the district court did not consent to Gallaher’s attempt to plead guilty, it follows that Gallaher had not ‘pleaded guilty,” and thus the court’s review of the PSR was premature and in error.” Id. at *4. [Remanded to a different judge].

Of Note: How do conditional and unconditional pleas differ? “An unconditional plea may be deemed accepted once the court has conducted a Rule 11 colloquy and found that the defendant’s plea satisfies the requirements of Rule 11(b) . . . By contrast, a conditional plea is contingent on the defendant securing the consent of both the government and the court.” Id. at *2.

What limitations are there on the district court’s discretion to accept – or reject – a conditional plea? None, apparently: in a disappointing new rule, the Ninth refuses to articulate any limitations or guidance on the exercise of the district court’s discretion in the context of conditional pleas. Id. at *3.

How to Use: Authoring Judge McKeown’s first quote is the Rolling Stones,“You can’t always get what you want.” Id. at *1. A defendant can’t always get a court’s consent for a conditional plea, and a district court can’t get the PSR until a defendant has granted his consent or entered a plea. Id. at *1.

The Stones, however, are incompletely quoted: “ . . . But if you try sometimes, you just might find, you get what you need.” You Can’t Always Get What You Want, Let It Bleed (Decca Records 1969). How does the district court get what it needs? “Encourage” the parties to consent to a pre-plea presentence report, before the plea is taken. How does the defense get what it needs? Structure the plea as an 11(c)(1)(C) agreement: if the court busts it, the plea gets withdrawn.

How does the government get what it needs? Wise-cracks aside, the government gets these deals through by agreeing to pre-plea reports and the 11(c)(1)(C) agreements.

Gallaher needs a careful read before its rules are quoted too broadly. This deal was a classic, “hold your nose, and down it goes” – except, in this case, the district court couldn’t stomach it. It involved a plea to a crime that was outside of the statute of limitations, and a deal that allowed the district court to depart from the stat max that existed at the time of the offense. See id. at *1 & n.3. It’s a pity that this atypical fact pattern creates a new rule on broad district court discretion to reject conditional pleas: the Ninth could have easily resolved the issue on a narrower basis.

For Further Reading: Who gets conditional pleas? The N.D. USAO’s office never gives them – then denies it has a policy of withholding them. (Try a Westlaw search in the Ninth Circuit database for "conditional plea" and "Northern District of California" -- almost every case is before the year 2000.)

When the new tenant of the 11th Floor corner-office moves in on January 21st, the conditional plea policy will be a good place to start reform. For an interesting read on DOJ’s current policy on plea agreements, visit its manual here.


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


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U.S. v. Johnson, No. 08-30094 (9-10-09). Appealing, to the 9th, means never having to say you're sorry, at least for the 3rd point under 3E1.1(b). The defendant here strolled into a bank and garnered the attention of the teller, and an off duty officer. Maybe it was the hood flipped up; maybe it was the whispering with another suspect; maybe it was the looking around. In any event, the defendant left when the officer approached. The officer followed them when they drove away, and stopped them. The officer and his partner asked the suspects to get out, and conducted a frisk, where weapons were found. The defendant filed a suppression motion, which lost in district court. He then entered a conditional plea. The government did not move for the 3rd point of super-acceptance under 3E1.1(b) because of the conditional plea and possible appeal. The district court declined to award the third point. On appeal, the 9th (Tallman joined by Beezer) affirmed the denial of the suppression motion, and the denial of the third point. The 9th reasoned that the PROTECT ACT gave the prosecutor the "power" but not the "duty" to so move, and that the prosecutor's decision was rational and not arbitrary because of the defendant's decision to contest his suppression issue with a conditional plea. The 9th stresses that the prosecutors make the call. M. Smith concurs in the judgment, but dissents from the analysis because he would still find that the court has the power to assess the third point if the conditions were met of agreeing to plea guilty before trial. Although this is a disappointing decision, the point can be made, and had, as a result of plea negotiations. If the prosecutor wants a plea and not a trial, the third point can be negotiated to still allow a conditional plea. After all, we are in a post-Booker sentencing world and a sentence outside the guidelines may be more of a worry to the prosecutor than the third point.

U.S. v. Juvenile, No. 07-30290 (9-10-09). The 9th (Reinhardt joined by Tashima and McKeown) holds that retroactive application of SORNA to juveniles violates the Ex Post Facto clause and therefore is unconstitutional. The 9th examined the historical underpinnings of juvenile determinations, purposes of juvenile deliquency findings, the lack of findings or comments in the AG's regulations making SORNA applicability to juveniles, the silence of Congress, and the pain and hardship that would be inflicted on former juvenile delinquents who had gone on with their lives.

Gallagher v. U.S. District Court, No. 07-74593 (11-13-08). "[The Defendant] Can't Get No Satisfaction." Instead, the 9th (McKeown) begins the opinion with the Rolling Stones "classic" lyrics "You can't always get what you want." Okay, so what is this about? "A defendant who chooses to take a conditional plea cannot always assume the court will grant its consent. And, a district court that wants to review a defendant's Presentence Report (PSR) cannot do so until the defendant has granted his consent or entered a plea. Here, the defendant was charged with first degree murder, but entered a conditional plea to involuntary with the ability to appeal the suppression issue. The court apparently did not accept the conditional plea, and was sunder no obligation to do so under Fed. R. Crim. P. 11(a)(2). The court could decline, which it apparently did, but the court cannot then read the PSR under Fed. R. Crim. P. 32. That has to wait until the plea has been accepted, or the defendant consents. Neither occurred here. The special action asking the 9th to force the conditional plea is denied, as is the argument that the court did in fact accept it; the case though is remanded and assigned to a new judge because of the reading of the PSR. Alas, no sympathy for the devil.

Case o' The Week: Ninth Rightly Balks at Bad "Acceptance" Decision, Espinoza-Cano

Like the Flying Dutchman (above), a recent unpersuasive “decision” of the Ninth Circuit appears – then thankfully vanishes into the mist. See United States v. Espinoza-Cano, No. 05-10339, 06 Cal. Daily Op. Serv. 7735 (July 13, 2006), not available here. Hopefully, it’s gone for good . . . .

Players: ND Cal AFPD Josh “Young Turk” Cohen with an important challenge.

Facts: Espinoza-Cano raised an unsuccessful legal challenge. Id. at 7742. He then offered to enter a conditional plea, to preserve the appeal. Id. AUSA Rob Rees refused, saying it wasn’t “appropriate.” Id. So, the defendant stipulated to all facts of conviction and stipulated to a bench trial. Id. In other words, this was a “slow plea.” Id. AUSA Rees, however, refused to recommend the third acceptance point because Espinoza-Cano had “put the government to its burden of proof at a stipulated facts bench trial.” Id. at 743.

(Ed. note: Don’t ask me to explain the government’s rationale – this “trial” actually took less time and less government resources than a normal, garden-variety plea).

Issue(s): Did the “district court err[ ] in not reducing his offense level by an additional level for acceptance of responsibility based on his having timely notified authorities of his intent to plead guilty[?]” Id. at 7743.

Held: “By proceeding to trial, Espinoza-Cano did not allow the government to avoid spending resources on preparing for trial. Even if we were to equate a stipulated facts bench trial with an outright guilty plea, the government still would not have been compelled to file the motion . . . . [A] plea of guilty allows the government to avoid expending resources anticipating, and ultimately defending, a complete appeal.” Id. at 7757.

Of Note: This decision posted on July 13th – then promptly disappeared. Now, it can’t be found (though it may reappear soon). The panel was right to withdraw its wrongly-decided opinion. The guideline at issue allows the government to withhold the third acceptance point if it is forced to prepare for trial. Here, AUSA Rees did nothing to prepare for trial – there were no witnesses, no evidence besides the defendant’s declaration, and no jury. The panel simply rewrites the guideline by allowing an AUSA to withhold the third point simply to prevent an appeal.

This is a Big Case. The panel’s phantom decision would allow USAOs to inappropriately shut down many appeals by (as here) refusing to grant conditional pleas, and then by denying a third acceptance point – even when a defendant stipulates to guilt in a bench trial. The panel should remand this case to the district court to evaluate the issue, this opinion should be demoted to a mem dispo, or this decision really should go en banc. Fortunately, the panel now has a chance to change its mind before (re)-releasing its result.

How to Use: If, by chance, the panel is unpersuaded by a blog, the defense should fully exploit the illogic that this opinion creates. First, many fair district court judges are offended by AUSAs who are too timid, or too lazy, to defend legitimate challenges on appeal. That’s particularly true where an entire USAO – like that in the ND Cal – has adopted this policy. That third acceptance point is easy for a sentencing judge to offset in a Booker “adjustment” if the unfairness of the situation is made clear before a stip facts bench trial.

Alternatively, some defendants may be willing to eat the relatively small difference of one “acceptance” offense level to preserve an appeal. Note that the guidelines still provide two acceptance offense levels for a plea – without an AUSA’s blessing – even if the plea is on the eve of trial. Note that the Ninth Circuit has some very good authority regarding credit for the full two acceptance points even after trial, when a trial is simply to preserve a legal issue. Thus, the Espinoza-Cano decision may be of additional, systemic concern: by taking the third point out of play it removes an important incentive for an early plea. An approach designed to preserve resources may, ironically, actually end up costing far more Court and government resources.

For Further Reading: For an interesting – if old – argument defending the need for conditional pleas, see Note, Conditional Guilty Pleas, 93 Harv. L. Rev. 564 (1980).

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

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Case o' The Week: Ninth Nixes Class Action - Chavez-Diaz and Appeals after Unconditional Pleas

The Honorable Judge Daniel Bress

  Class dismissed.

United States v. Chavez-Diaz, 2020 WL 562292 (9th Cir. Feb. 5, 2020), decision available here.

Players: Decision by Judge Bress, joined by Judges Collins and Bea. 

  Hard-fought appeal by AFD Kara Hartzler, Federal Defenders of San Diego.  

Facts: Chavez-Diaz was one of the thousands of aliens swept up in the new border policies in San Diego. Charged with illegal entry, he and other aliens were segregated into separate court calendars with mass arraignments, pleas, sentencings and immediate removals. Id. at *2. He and other Section 1325 defendants were shackled during proceedings, forced to meet with counsel in the presence of U.S. Marshals in a converted garage, and suffered delays in presentment due to their detention in Border Patrol stations. Id.

  Chavez-Diaz raised equal protection and due process objections to these procedures, pleaded guilty without a plea agreement, and during the plea expressly asserted that he was “not waiving his appellate rights. He is not.” Id.

  After being sentenced by the magistrate judge he appealed to the district court. The district court held that Chavez-Diaz had not waived his constitutional challenges, but rejected them on the merits. Id.

Issue(s): “Because Chavez-Diaz did not enter a conditional plea expressly preserving his right to appeal particular issues, the threshold question in this case is whether Chavez-Diaz’s unconditional guilty plea waived his ability to raise the constitutional claims that he now advances.” Id. at *1.

Held: “We hold that Chavez-Diaz waived his right to appeal these claims, and that the district court’s conclusion otherwise rested on a misinterpretation of Class v. United States, . . . 138 S. Ct. 798 . . . (2018). We therefore reverse and remand with instructions to dismiss the appeal.” Id.

  “Chavez-Diaz through his guilty plea plainly waived his right to appeal his equal protection and due process claims. . . [T]hese are challenges to the constitutionality of case-related government conduct that takes place before the plea is entered.” . . . Chavez-Diaz waived his ability to raise these claims by pleading guilty.” Id. at *4 (internal citations and quotations omitted).

Of Note: Wait – Chavez-Diaz expressly stated that he preserved his appeal when he pleaded guilty, but the Ninth slammed shut its courthouse doors and refused to tackle the merits. Can’t he now withdraw his guilty plea as involuntary?

  Nope.

  Judge Bress concludes that despite the express assertion of appellate rights at the plea, the plea was still knowing and voluntary. Id. at *6.

How to Use: The heart of this battle is the scope of the Mena-Blackledge exception, for appeals after unconditional pleas of guilt. That exception “allows for constitutionally-based appeals – despite an unconditional guilty plea – where the appeal, if successful, would mean that the government cannot prosecute the defendant at all.” Id. at *4 (emphasis in original). It was that exception upon which SCOTUS relied in Class, where it permitted a Second Amendment appeal to move forward despite an unconditional plea of guilt.

  Judge Bress distinguishes the Supreme’s Class decision from Chavez-Dias (and limits the Mena-Blackledge exception along the way). While both Class and Chavez-Diaz involved constitutional challenges that did not contest factual guilt, in Chavez-Diaz alone the defendant could still be retried even if his constitutional claims prevailed. That fact cost Chavez-Diaz his appeal, because he entered an unconditional plea of guilt below.

  In short, if you are hoping to raise a constitutional appeal after an unconditional plea of guilt, Chavez-Diaz merits a very close read.

                                               

For Further Reading: What appeals can one take, despite an unconditional plea of guilt? For an interesting overview of the circuit split on this question, see Class v. United States: an Imperfect Application of the Menna-Blackledge Doctrine, at 78 MDLR 382 (2019), available here.

Image of the Honorable Judge Daniel Bress from https://www.wsj.com/articles/judicial-make-up-call-11569020023

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

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Case o' The Week: Another Brick in the Wall - Morgan, Miranda and Confessions

  Bricks of marijuana make a lovely green backdrop, for booking photographs of suspects accused of drug-smuggling.

   (Any subsequent confession is an inadvertent coincidence). United States v. Morgan, 2013 WL 2380467 (9th Cir. June 3, 2013), decision available here.

Players: Decision by Judge Nguyen, joined by Judges Fisher and Callahan. Hard-fought appeal by AFPDs Juan Rocha and Brian Rademacher of the District of Arizona.

Facts: Shirley Anne Morgan was arrested at the border in a vehicle loaded with 77 bricks of marijuana. Id. at *1. She was Mirandized, spoke to Border Agent Charles Armour briefly, then invoked her right to counsel. Id. Morgan was taken to a Border Patrol station 2 ½ hours away, given a form that again told her of her Miranda rights and told to sign it. At some point agents photographed her in front of the drugs. Id. at *2. Morgan said she wanted to speak to the agent again, was put in a cell, and nearly three hours later confessed to smuggling the marijuana in an interview. Id. at *2. When her suppression motion was denied in district court, she entered a conditional plea. Id.

Issue(s): “Morgan claims that the district court erred in refusing to suppress post-arrest statements allegedly obtained in violation of Miranda . . . . Morgan contends that the combination of circumstances—re-reading the Miranda warnings, processing the drugs seized from her vehicle in her presence, and taking her photograph with the seized drugs—constituted the ‘functional equivalent’ of interrogation.” Id.

Held: “Because [the agent’s] actions were not interrogation or its functional equivalent, we affirm.” Id. at *1. “Here, Morgan was not subjected to the functional equivalent to interrogation. [Processing Morgan in the same room as the drugs, and photographing her with the drugs], coupled with the routine reading of the . . .  form [containing Miranda advisements] were not unduly coercive, particularly in light of the fact that [the] agent . . . made no attempt to secure a waiver of Morgan’s rights or elicit any incriminating statements from her.” Id. at *3.

  

Of Note: Morgan could take this issue up because her plea agreement allowed her to preserve the argument for review in the Ninth – it was a “conditional plea.” Unlike many districts, the ND Cal USAO effectively prohibits conditional pleas. (FOIA requests seeking the district’s total number of conditional pleas would make for an interesting and enlightening project.) 

  Broad unilateral waivers of all appellate and habeas rights in plea agreements violate a prosecutor’s code of ethical conduct – or at least, they will when the A.B.A. adopts its new proposed Standard 3-5.9, “Waiver of Rights as Condition of Plea Agreement.” For Professor Rory Little’s article containing this and many other welcome revisions to the standards of conduct for the prosecution function, see article here.  

How to Use: The Ninth tolerates the confession in Morgan, but isn’t happy about it. As Judge Nguyen warns, “there is no reasonable explanation for taking Morgan’s photograph with the seized drugs. We are disturbed by, and in no way condone, this action, which at the very least appears gratuitous and unprofessional.” Id. at *4. The confession survives in Morgan because of unique facts that help the government, including a three-hour delay between Morgan’s renewed interest in speaking to the agent and the actual interrogation. Id. at *3. If your client is photographed next to the evidence before confessing, take a shot at factually distinguishing Morgan – on slightly different facts, this confession would not have survived.

                                               

For Further Reading: Ray Conrad was the Federal Defender for the Western District of Missouri for thirty-three years. Last week he stepped down and retired, as did his Chief Investigator. Both left the office because of the severe budget cuts required by sequestration – their sacrifice saved five jobs.

For a video where Ray describes his difficult decision, see clip here.  

Image of bricks of marijuana from http://media.masslive.com/breakingnews/photo/donroy-marijuana-arrestjpg-a0926782eefd4259.jpg “Last One Out” image from http://static.emedco.com/media/catalog/product/Conserve-Energy-and-LEED-Signs-If-Youre-The-Last-One-Out-Turn-Off-The-Lights-80768-ba.jpg

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

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Case o' The Week: Righting Romm(s), Kuchinski's Cache

Judge Fernandez is forgiven for an opinion that reads like a Scrabble tournament, when he uses his SAT vocabulary to bring a little reality back to child porn sentencing. See United States v. Kuchinski, __ F.3d __, No. 05-03607, Slip op. at 18789 (9th Cir. Nov. 27, 2006), opinion available here. Although the case has a disappointing and unpersuasive endorsement of the despised "conditional plea" procedure in Rule 11, it does recognize that images in the internet cache are not readily available to most users.

Players: Fernandez neatly parries the government’s allonge. Slip op. at 18797.

Facts: Kuchinski pleaded guilty to possession of child porn. He attempted to enter a conditional plea to an additional count of receipt of child porn, but the government refused to permit it. Id. at 18795. Between fifteen to nineteen thousand images of child porn were on his computer. Under 1,500 files were downloaded on his computer, in the recycle bin, or were active temporary internet files. Id. at 18794. Between thirteen to seventeen thousand images were “Deleted Temporary Internet Files,” aka, in the “cache.” Id. at 18794. Over defense objection, the district court calculated attributed a number of images that produced a seventy month sentence. Id. at 18796.

Issue(s): Of many issues, these two are of greatest interest:

1. Conditional pleas: “Kuchinski complain[s] that Federal Rule of Criminal Procedure 11(a)(2) was an unconstitutional violation of the separation of powers doctrine because permitting a conditional plea was an issue that should be left to the courts alone.” Id. at 18797-98.

2. Counting child porn images: “Did Kuchinski knowingly receive and possess the images in [the internet cache], or, rather, does the evidence support a determination that he did?” Id. at 18804.

Held:

1. Conditional pleas: “[Kuchinski] is wrong.” Id. at 18798. “We perceive no danger that a ‘commingling of functions,’ if commingling it be, will result in an encroachment on one branch or an improper aggrandizement of another branch.” Id. at 18799.

2. Counting child porn: “There is no question that the child pornography images were found on the computer’s hard drive and that Kuchinski possessed the computer itself. Also, there is no doubt that he had accessed the web page that had those images somewhere upon it, whether he actually saw the images or not. What is in question is whether it makes a difference that, as far as this record shows, Kuchinski had no knowledge of the images that were simply in the cache files. It does.” Id. at 18805. “Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images. To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control.” Id. at 18806.

Of Note: In Kuchinski, the Ninth thankfully limits its sloppy Romm decision from earlier this year. See Romm blog here. In Romm, Judge Bea upheld a conviction when child porn was discovered in the internet cache – despite a compelling counter-argument from Kleinfeld in Gourde. See United States v. Romm, 455 F.3d 990, 1001 (9th Cir. 2006). In Kuchinski, Judge Fernandez requires evidence that the user actually accessed and used files in the internet cache – not likely for the average child porn consumer.

Forensically speaking, Kuchinski will be a much more common scenario than Romm – users sophisticated enough to be rummaging through the internet cache will probably have other, more clever ways to store images.

How to Use: Give Kuchinski to your forensic expert, and ask him or her to determine if internet cache images have been accessed and/or stored outside of normal browser usage. If not, cut those images out of the guideline calcs.

For Further Reading: Here’s a glossary for this Fernandez decision:

Gallied: “Hurried, vexed, over-fatigued, perhaps like a galley slave.” See definition here; (Slip Op. at 18799).

Allonge: “In fencing, an allonge is a thrust or pass at the enemy.” See definition here; (Slip. op. at 18797).

Valetudinarian: 1. A weak or sickly person, especially one morbidly concerned with his or her health. adjective: 1. Sickly; weak; infirm. 2. Morbidly concerned with one's health. See definition here; (Slip. op. at 18806)


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

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Case o' The Week: Promises, promises - Franklin, Pleas, Probation & Parole Searches

How much is a D.A.'s promise to stave off the feds worth? Not much -- and even less if the promise isn't in writing. United States v. Franklin,__ F.3d __, 2010 WL 1711497 (9th Cir. April 29, 2010), decision available here.

Players: Decision by Judge Clifton (above left), joined by Judges Alarcón and Kleinfeld.

Facts: Franklin was on “community custody” in Washington (akin to probation or parole). Id. at *1. He reported that he was homeless, then failed to call his “Community Corrections Officer” (“CCO”). Id. Franklin’s baby’s mother called the CCO and said he was living in a specific hotel room, and had a gun and ammo. Id. A hotel clerk confirmed that Franklin had rented the room and was staying there; a search revealed the gun. Id. Franklin pleaded guilty in state court pursuant to a plea agreement to unlawful possession of a firearm. Id. In the plea agreement was a handwritten change that stated, “The sentence holds Mr. Franklin accountable for his actions.” Id. at *4.

Franklin was then brought federal on a felon-in-possession charge. Id. at *1. “He filed a motion to suppress evidence obtained in the search of the motel room and a motion to dismiss based on the state plea agreement.” Id. at *2. Both motions were denied, and Franklin entered a “conditional plea” (like Bigfoot, something that is rumored to exist in the N.D. Cal., but with few confirmed sightings).

Issue(s): 1. Search: “Franklin appeals the denial of his motion to suppress on the ground that officers lacked probable cause to believe that he was residing in the motel room searched without a warrant.” Id. at *1. “The contested issue is whether the officers had sufficient basis to believe that Room 254 was Franklin’s residence.” Id.

2. Plea Agreement: “Franklin also argues that the federal charges should have been dismissed because the agreement which led to his guilty plea in state court provided that no federal charges would be pursued.” Id. at *4.

Held: 1. Search: “There was ample evidence to support the district court’s finding that officers had probable cause to believe that Room 254 was Franklin’s residence at the time of the search. The motion to suppress was properly denied.” Id. at *4.

2. Plea Agreement: “We agree with the district court that the plea agreement was unambiguous and did not reflect any agreement not to prosecute Franklin on federal charges. Under Clark, that ends the matter, and there is no need or basis for us to consider extrinsic evidence.” Id. at *5.

Of Note: Missing from the opinion is a key, troubling fact: Franklin’s public defender swore in affidavit that the D.A. agreed, in plea negotiations, “that the federal government would not be pursuing charges out of this case.” 2009 WL 6083056, *9, (Appellant's Opening Brief). That promise, swore the P.D., was reflected in the handwritten change to the plea agreement. Id.

For folks practicing in state court in Trigger Lock districts, Franklin is a real problem and deserves a close look. With the Petite Policy effectively in abeyance, Franklin makes for grim reading.

How to Use: Probation and parole searches are interesting beasts. While the searches for probationers and parolees themselves are subject to much lower Fourth Amendment standards, when these folks are staying at residences belonging to others the Ninth has “applied a relatively stringent standard in determining what constitutes probable cause that a residence belongs to a person on supervised release.” Id. at *3 (internal citations and quotations omitted). The rationale for this heightened standard is “at least some concern for the rights of that other person.” Id.

While Franklin has a disappointing result, Judge Clifton is careful in the opinion to acknowledge and explain the different standard that applies when probationers/parolees are staying in someone else’s home. Id. (collecting authority). Keep an eye out for this better Fourth Amendment standard when battling a probation, parole, or supervised release search.

For Further Reading: The Ninth’s involvement with homelessness isn’t limited to affirming the denial of suppression motions. For years Judge Harry Pregerson has been a tireless advocate for the homeless, helping to build shelters, transitional housing, child care centers, and job training centers for folks down on their luck. He was recognized for his half-century of work by the University of California last Friday, when he received the Peter E. Haas Public Service award. See article here.His acceptance speech should be available on-line soon (though that well-edited script bears little resemblance to the spontaneous, inspiring, and hilarious remarks that the Honorable HP actually delivered at Cal.)



Image of the Honorable Richard R. Clifton from http://www.law.asu.edu/?id=1163

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

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Case o' The Week: One to Savor, on Appellate Waiver --Torres, Appellate Waivers, and Illegal Sentences

 The government cannot coerce a defendant to waive the right to appeal an illegal sentence.

 (Troubling that our government tries: reassuring that the Ninth rebuffs).

   United States v. Jimmy Torres, 2016 WL 3770517 (9th Cir. July 14, 2016), decision available here.

Players: Decision by Judge Murguia, joined by Judges Wardlaw and W.

Hon. Judge Mary H. Murguia

Fletcher. Big win for D. Nev. AFPDs Rachel Korenblat, Alina Shell and Amy Cleary.

Facts: Torres pleaded guilty pursuant to a conditional plea to § 922(g)(1). Id. at *3. The conditional plea allowed an appeal of the denial of a motion to suppress. Id. He was sentenced to 92 months; Torres did not object to the use of priors to increase his guideline range. Id. at *7. In fact, Torres stipulated in his plea agreement to a range that included a big bump for prior “crimes of violence.” Id. On appeal, Torres challenged the use of the “crimes of violence” to enhance his sentence, arguing that the Supreme Court’s 2015 Johnson decision rendered the guideline definition of “crime of violence” unconstitutionally vague. Id.

Issue(s): “Torres . . . challenges his sentence on the grounds that the district court incorrectly enhanced his offense level under section 2K2.1 of the . . . Guidelines, in light of the Supreme Court's . . . . decision in Johnson. . . Johnson held that the ACCA's catch-all “residual clause,” . . . was unconstitutionally vague because it failed to specify the crimes that fell within its scope sufficiently clearly to satisfy the dictates of due process. . . . Torres argues that section 2K2.1(a)(2)’s identically worded residual clause is likewise unconstitutional. Because Torres did not object . . ., we will generally reverse only if we find plain error in his sentence.” Id. at *7. “Before we can decide whether Torres is entitled to relief on his sentencing claim, we must first determine whether his appeal is precluded by his plea agreement, in which Torres knowingly and expressly waive[d]: (a) the right to appeal any sentence imposed within or below the applicable guidelines range as determined by the Court, with the exception of preserving the right to appeal a determination that the [he] qualifies as an Armed Career Criminal; 5 (b) the right to appeal the manner in which the Court determined that sentence on the grounds set forth in 18 U.S.C. § 3742; 6 and (c) the right to appeal any other aspect of the conviction or sentence.’” Id. at *8.

Held: “Here, the Government asserted . . . that it believes Johnson applies to the Sentencing Guidelines. . . . Based on the Government's concession, we assume without deciding that Johnson’s holding nullifies § 4B1.2(a)(2)'s identically worded residual clause. We . . . accept the Government's concession that the district court sentenced Torres pursuant to a provision in the Guidelines that is unconstitutionally vague. This renders Torres's sentence ‘illegal,’ and therefore the waiver in his plea agreement does not bar this appeal. See Bibler, 495 F.3d at 624. And, because the government agrees that Torres’s prior convictions do not justify the imposition of § 2K2.1(a)(2)’s crime-of-violence enhancement absent the residual clause, we vacate Torres's sentence and remand for re-sentencing.” Id. at *9.

Of Note: Does Johnson apply to the Guidelines? Yep, says the government (and thus the Ninth) in Torres. 

   Is Johnson retroactive for guideline cases? Yep, says every Circuit to have considered the issue – except for that renegade Eleventh. See generally petition for cert. at 21-21, available here. (collecting cases – (plus the Fourth’s Hubbard!)).  

  What are the prospects for the Eleventh’s stubborn outlier? Not so hot – the Eleventh's decision was the one slapped with a cert. grant. See Beckles SCOTUS blog summary here. 

How to Use: Bibler lives (whew!). The Ninth confirms in Torres that it won’t allow the government to immunize illegal sentences from appellate review through appellate waiver. 

  Use Bibler and Torres when thinking about sentencing appeals, to cast off some of those coerced appeal-waiver shackles USAOs demand in their pursuit of “efficiency.”  

                                               

For Further Reading: New York robbery is not a “crime of violence,” holds the Second Circuit in United States v. Corey Jones. 

  Why do we care about a Second Circuit decision and New York robbery, way out here in the Ninth? Because Hobbs Act robbery was expressly modeled on New York robbery, the Ninth has explained. See United States v. Aguon, 851 F.2d 1158, 1164 (9th Cir. 1988) (en banc) (“Congressman Hobbs said explicitly that the definitions of robbery and extortion were modeled on the New York Penal Code.”), overruled on other grounds by Evans v. United States, 504 U.S. 255 (1992).  

  The Second Circuit's decision in Jones vindicates our claim that Hobbs Act robbery is not a crime of violence after Johnson. 

  (Our sympathies to the Marble Rye lady, but Jerry ain’t a “violent felon.” See blog entry here (and congrats to AFPD Matt Larsen)).

Image of the Hon. Judge Mary Murgia from http://www.azflse.org/azflse/newsletter/ 

Image of the Hobbs Act from https://covers.openlibrary.org/b/id/5805000-M.jpg

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

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