US v. Singh, No. 17-50337 (5-16-19)(M. Smith w/Watford & Hurwitz). Back in 2012, defendants sought to influence the San Diego mayoral election via contributions.  One defendant was a Mexican citizen who sought to develop Chula Vista into the Miami Beach of the West Coast (Query: is that by itself criminal?).  The problem was that the influence was through contributions by a foreign national. This violated various statutes, including the actual contributions and many reporting requirements.  The defendants raised a host of challenges: jurisdictional (Congress can reach to a mayoral race), constitutional (first amendment), intent (general or specific), and sufficiency of the evidence. The 9^th examined the use of “willfully” in 52 U.S.C. § 30121, and held that it was a general intent offense.  As for falsifying information, the 9^th held there was sufficient evidence. It did vacate one conviction (count 37) for insufficient evidence.  The 9^th found no evidentiary errors, jury instructions, nor IAC.  It affirmed too the conviction of a firearm possession by an immigrant visa holder. The case is remanded for resentencing for the one vacation of conviction.
 

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/16/17-50337.pdf

 

US v. Audette, No. 17-10017 (5-14-19)(M. Smith w/Hawkins & Hurwitz). Note:  This is an Az FPD case.  The 9^th affirmed numerous fraud counts. The defendant told victims he needed funds to pay for the FBI and CIA to protect him from the Mafia.  He would pay them back once he inherited millions (he purported to be related to Lucky Luciano). If the victims did not pay, the Mafia would brutally kill them, and the defendant and his family.  At trial, the defendant represented himself.  The principal question on appeal was whether the principles of Faretta were followed.  The 9^th affirmed they were. The 9^th did so even though the defendant had mental issues, and made equivocal statements about counsel. He did have advisory.  The principles of Faretta were adhered to, even in light of the unorthodox defense.  As to evidentiary and confrontation clause issues, the 9^th found no error.  It did dismiss 10 of the 91 counts due to insufficient evidence and remanded for a new sentencing (he had received 240 months).

Hard fought appeal by AFPD Elizabeth Kruscheck of Az FPD (Phoenix).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/14/17-10017.pdf

 

Kayer v. Ryan, No. 09-99027 (5-13-19)(Fletcher w/Friedland; partial dissent by Owens). Note: This is an Az FPD-CHU case.  The 9^th granted sentencing relief for IAC in this capital habeas.  The 9^th found error in the Az Supreme Court’s requirement of a nexus between mitigation and the offense, but deemed it harmless. Relief was given on the mitigation representation as investigation.  The investigation did not begin soon enough; no relationship was established with the client; and the extent of the mental impairment mitigation was not developed. 

Owens, dissenting, believes that AEDPA deference is warranted.

Congrats to AFPDs Jennifer Garcia and Emma Smith, Az FPD (CHU).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/13/09-99027.pdf

Case o' The Week: Ninth Nod to the Nutty - Equivocation When Going Pro Se in Faretta Hearings

 Feeling Lucky?

Charles 'Lucky' Luciano

United States v. Audette, 2019 WL 2096455 (9th Cir. May 14, 2019), decision available here.

Players: Decision by Judge M. Smith, joined by Judges Hawkins and Hurwitz. Hard-fought appeal by District of Arizona AFPD Elizabeth J. Krushchek.

Facts: Steven Audette borrowed millions, explaining that he needed to pay federal agents to protect him from the mafia. Id. at *1. He assured victims that he was a relative of organized crime figure Lucky Luciano, and was destined to inherit millions. Id. He and his family would be killed, he explained, and his victims kidnapped, tortured, and murdered, if he didn’t make the pay-offs. Id. at *2.

  In reality, however, the Mafia wasn’t after Audette, nor was he related to Luciano. Id.

  Audette was charged with 90 counts of wire fraud.

  After a court-ordered eval a shrink concluded Audette was not competent. Id. at *2. Audette was shipped off to the BOP, which quickly reported his competency “restored. Id.”

  After a number of Faretta requests, the district court had a hearing. Id. Audette then equivocated about representing himself, and explained that he wanted his attorney. Id. at *3. Ultimately, however, Audette said he wished to go pro se. Id. at *3.

  The court granted his wish, Audette was convicted of all counts, and sentenced to 20 years. Id. at *1.  

Issue(s): “Audette . . . argues that his waiver was equivocal because of what he said at the Faretta hearing before stating that he wished to represent himself. Audette told the court that he ‘want[ed] [appointed counsel] to represent [him] ... I’m scared to death to represent myself, in all honesty, I’m scared to death because I know that I don’t stand a chance against the prosecution.’ A few seconds later, he told the court that ‘when I heard you go over all the things I need to know to adequately defend myself ... it’s daunting. ... I don’t want to go toe to toe with the prosecution. That’s like me going up against Mike Tyson in a boxing match.’” Id. at *5.

Held: “Standing alone, such statements might make a waiver of counsel equivocal . . . . But after making those statements, Audette told the district court: ‘Yes, sir, it is’ in response to whether ‘it [is] your wish to represent yourself pro se?’ That statement was not an ‘impulsive response’ to the court’s question—Audette took five minutes to deliberate with Borrelli before responding to the court’s question. . . . Accordingly, Audette ‘appears to have given the issue serious thought,’ which supports our conclusion that Audette’s waiver of counsel was unequivocal.” Id. at *5 (quotations and citations omitted).

Of Note: Hamlet? Decisive, compared to Audette’s equivocation. See id. at *2.

 Judge M. Smith, however, rejects the argument that Audette’s “equivocal statements earlier in the hearing tainted his final, unequivocal waiver of counsel.” Id. at *5. Instead, the Ninth interprets these “expressions of trepidation” as evidence that Audette “grappled with the difficult decision.” Id.

Steven Audette

  (Bear in mind that Audette also wanted to tell the jury that he and “President Clinton [had hidden] guns and badges in a toilet while eating egg rolls). Id. at *8. 

  The Ninth attributes much introspection to a self-described egg-roll-chomping Friend of Bill.

How to Use: Read Judge Reinhardt’s Fahad concurrence. 190 F.3d 1097, 1107 (9th Cir. 1999). Twenty years ago that prescient jurist advocated for some rational limits on the rights of the mentally-ill to represent themselves. (Not an absolute right, he reminded us). Id.

  Judge Reinhardt’s pitch never got traction, and Audette now follows a line of authority – Kurt Johnson, Brugnara, and the recent Read – that honors the autonomy of delusional defendants to self-incarcerate for decades through wince-inducing pro se trials. (Notably, the Audette panel (Judge M. Smith, author) is the same panel as in Read (Judge Hawkins, author)).

   When faced with the mentally-ill client who is flirting with the idea of self-representation, read Read, (March 2019) and Audette together. This brace of recent decisions now lay out the parameters of pro se in the Ninth.

                                               

For Further Reading: Last week Kenneth Lee became the newest Ninth Circuit judge. Mr. Lee was President Trump’s 40th confirmed circuit judge: he was confirmed 52-45. See article here. 

Image of Charles “Lucky” Luciano from https://www.reddit.com/r/ColorizedHistory/comments/afil3q/mafia_boss_charles_lucky_luciano_in_exile_sicily/

Image of Steven Audette from https://www.timesfreepress.com/news/local/story/2017/jan/22/arizonscammer-maricounty-tie-gets-20-years/408770/

Image of Hamlet and Yorick’s skull from https://www.pinterest.com/pin/688136018040679294/

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

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1. US v. Orona, No. 17-17508 (5-10-19)(Hawkins w/M. Smith & Hurwitz).  The 9th affirmed a habeas grant in a Johnson AACA case, holding that an agg assault under Ariz Rev Stat 13-1203 is no longer a predicate COV felony under ACCA.  This result was compelled by precedent, Fernandez-Ruiz v. Gonzales, 446 F.3d1121 (9th Cir 2006)(en band). The govt argued that Voisine v. US, 136 S.Ct 2272 (2016) had implicitly overruled precedent. In Voisine, the Supremes held that a misdemeanor reckless assault could bar possession of a firearm. The panel did not buy the argument. Its reading of Voisine was that Congress explicitly included recklessness, which was not the case in the Arizona statute (and other statutes).  The case left Fernandez-Ruiz still controlling. And yet, the panel was somewhat grudging in its holding. It wrote that if it was writing on a “blank slate,” the panel might well follow other circuits and extend Voisine’s reasoning to the Ariz statute. The panel is bound.  The language though is a call to en banc or worse.  Troubling.

In the meantime, congrats to Keith Hilzendeger, AFPD, Az.

The decision is here:     

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/10/17-17508.pdf

2. US v. Ruvalcaba-Garcia, No. 17-50288 (5-10-19)(Per Curiam by Graber, Bybee, & Harpool). This is a significant Daubert expert case.  The defendant, unfortunately, lost because of “harmless error,” but the 9th found that the district court abused its discretion by failing its expert gatekeeper role under Daubert and Rule 702.

This is a 1326 case. The battle was waged over the sloppy government fingerprint expert.  Could a fingerprint expert be any sloppier than this one?  Doubtful. Basic protocols were not followed, CLE not taken, no membership in professional associations, no verification by another analyst, and points were not counted. Basically, the expert testified that the fingerprint on the underlying removal records were the defendant’s because he looked at them and he had lists of experience. The first trial hung. At the second trial, the expert was minimally better, using some protocols, and counting points, but various standards again were not complied with.  The court though did not perform its 702 Daubert function by finding that the witness was an expert. The court said it was up to the jury. Error! The court has to find that the expert’s methods were reliable. Several factors can be used, and the test is malleable, but the court still has to look at whether the reliability is scientific, and based upon sound techniques, peer reviews, rates of error,   and general acceptance in the scientific community.  The court did not do this here but passed off to the jury. The court does not have to always hold a Daubert hearing, but has to fulfill a gatekeeping function.  And yet, on the record, there was enough for reliability (33 years experience, and testifying in 250 trials). He employed some accepted methods, and explained his deviations.  It was enough. 

This is a good overview of Daubert, and the court’s gatekeeper function.  If you are challenging an expert, and the court is not performing a Daubert analysis, cite this case.  It is worth a careful read.

Kudos to Kara Hartzler, Fed Defenders of San Diego, for another hard fought appeal.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/10/17-50288.pdf

3. US v. Fultz, No. 17-56002 (5-10-19)(Marbley, Gould, & Nguyen). In the wake of Johnson II, which invalidated the “residual clause” of ACCA for vagueness, petitioner filed a successor challenge to his conviction for robbery, 18 U.S.C. § 2111, under the elements clause.  He also challenges the residual clause under 924(c)(3) — an issue pending in US v. Davis, 18-431, argued before the Supremes on April 17, 2019.

The 9th concludes that 2111 robbery is a COV under the elements clause.  As such, the residual clause is not applicable. The 9th so held based on its prior rulings finding carjacking and bank robbery COVs. The offenses involved the type of violence, even by intimidation, which makes them COVs. The same is true here for 2111 robbery. The language of the offense is the same. Petitioner’s attempts to distinguish these precedents were unavailing.

Valiant effort by Kara Hartzler, Fed Defenders of San Diego.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/10/17-56002.pdf

 

 

 

Case o' The Week: Ninth Shrugs, and Swallows Questionable Beers - Ruvalcaba and Explicit Reliability Findings for Federal Experts

 Under Daubert the Court of Appeals acts as a gatekeeper that evaluates the reliability and admissibility of the testimony of expert witnesses in federal court.

   

  (Not a typo).

United States v. Ruvalcaba-Garcia, 2019 WL 2063373 (9th Cir. May 10, 2019), decision available here.

Players: Per curiam decision with Judges Graber and Bybee, and District Judge Harpool. 

  Admirable advocacy by Ass’t Fed. Defender Kara Hartzler, Federal Defenders of San Diego, Inc.   

Facts: Ruvalcaba-Garcia was charged with illegal reentry, based on a 2015 removal order. Id. at *1. His trial defense was that he was not the person removed in ’15. Id. The government introduced a 2015 “Verification of Removal” form, that had a signature, a photograph, and a fingerprint of the removed person. Id.

  FBI fingerprint “expert” David Beers testified for the government. On cross, he conceded that he had not taken continuing education courses in fingerprint analysis, admitted that he was not a member of two important working groups for fingerprint “experts,” and revealed that he did not strictly follow the “ACE-V” method of analysis. Id. at *2. The defense objected to the admission of Beers as an expert: that objection was overruled, but there was no express finding of reliability of the expert’s testimony. Id.

  Beers testified, identified the 2015 print as Ruvalcaba’s, and the jury hung.

  On retrial, Beers went through a similar drill, the defense objection was again overruled, and Ruvalcaba-Garcia was convicted. Id. at *3.   

Issue(s): “Ruvalcaba argues on appeal that the district court abused its discretion by admitting the expert’s testimony without first finding it ‘relevant’ and ‘reliable.’ Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993); see Fed. R. Evid. 702.” Id. at *1.

  “The issue here is ‘reliability,’ which requires that the expert’s testimony have a reliable basis in the knowledge and experience of the relevant discipline. . . . The district court must assess whether the reasoning or methodology underlying the testimony is scientifically valid” and “properly can be applied to the facts in issue, . . . with the goal of ensuring that the expert employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field, . . . The test ‘is not the correctness of the expert’s conclusions but the soundness of his methodology,’ and when an expert meets the threshold established by Rule 702, the expert may testify and the fact finder decides how much weight to give that testimony.” Id. at *3 (internal citations and quotations omitted).

Held: “We agree that the district court’s failure to make these gateway determinations was an abuse of discretion.” Id. at *1. 

  “Here, the district court abused its discretion by failing to make any findings regarding the reliability of Beers’s expert testimony and instead delegating that issue to the jury.” Id. at *4. “To satisfy its ‘gatekeeping’ duty” under Daubert, the court must make an explicit reliability finding. . . . The district court’s failure to make an explicit reliability finding before admitting Beers’s expert testimony in this case constituted an abuse of discretion.” Id. at *4 (internal citations and quotations omitted; emphasis added).

Of Note: Ruvalcaba is a thoughtful analysis of the district court’s gatekeeping responsibilities, when considering the admission or exclusion of expert witnesses. 

  Unfortunately for Ruvalcaba, the Ninth then denies relief, after a harmless error analysis. See id. at *5.

  Note the frustrating “findings” by the Ninth in the context of this harmless error review – the panel marches through cold-record gatekeeping and concludes that Beers' "expertise" was good enough for Daubert. Id. at *6; see also "For Further Reading" below.  

How to Use: The defense objected – repeatedly – to Beers’ testimony, over two trials. 

  Despite these objections below, the government argued on appeal that because the defense did not specifically make a “gatekeeping” objection, the review should be for plain error (instead of harmless error). Id. at 3 & *2. 

  The Ninth avoided that question, but let footnote 2 be a warning: expert objections should be specific. Objections should include the magic FRE 702 litany of reliability, relevance, and the court’s gatekeeping function.

For Further Reading: In Ruvalcaba, the Ninth acted as a second Daubert gatekeeper. That procedure is controversial – at least five active Ninth jurists think remand and a post-hoc Daubert hearing would be appropriate when this problem arises. 

  For an accessible piece on the en banc Barabin case that created this odd appellate approach (and that prompted a major en banc split), see article here.  

Image of “Gatekeeper” from https://www.chronicle.com/blogs/linguafranca/2012/11/26/no-more-gatekeeping/

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

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US v. Carpenter, No. 17-10498 (5-9-19)(M. Smith w/Hawkins & Vratil). To raise a duress defense, the 9th requires defendants to make a “prima facie showing of duress in a pre-trial offer of proof” to raise the defense at trial. US v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir. 2008). Absent such a showing, the defense is deemed not relevant.  The question here is whether such a showing is in open court or ex parte. The 9th, looking at the common law, holds that “the common law right to access attaches to pretrial offers of proof for a duress defense, and that because Carpenter failed to provide a compelling reason to overcome the presumptive right of access, the district court did not abuse its discretion in denying Carpenter’s motion to seal her proffer.” (13)  The 9th thus avoids a constitutional First Amendment issue.

This was a conspiracy to kidnap and kidnapping case.  In another issue, the 9th found no error in allowing evidence of trafficking in marijuana, and the marijuana’s disappearance, as a reason for the kidnapping. It came in under 404(b).   It was needed to make sense of the story.  The court erred, although harmless, in allowing evidence of meth use during the kidnapping. Such use was not inextricably intertwined with the offenses so as to come in.  FRE 403 should have kept it out as unduly prejudicial. Again, the error was harmless.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/09/17-10498.pdf

Bradford v. Davis, No. 15-99018 (5-3-19)(M. Smith w/Watford & Hurwitz). In this capital habeas appeal, the 9^th reverses a grant of habeas relief based on voluntariness and admission of petitioner’s statements.  The decision of the California Supreme Court was not unreasonable under AEDPA deference.  The 9^th however did find that petitioner has shown cause to overcome procedural default of his IAC claims and for prosecutorial misconduct for the suppression of toxicology reports.  The matters were remanded to consider whether prejudice was established. 

Kudos to Deputy Federal Defenders Patricia Young, John Littrell, and Margo Rocconi of Cal Central (L.A.).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/03/15-99018..pdf

US v. Anieze-Smith, No. 16-50208 (5-2-19)(Gould w/Nguyen & Benitez). In a restitution issue of first impression, the 9^th affirmed the imposition of restitution on five counts of health care fraud, even though some restitution fell outside the statute of limitations. The 9^th specifically held that a district court may order restitution for all losses resulting from a fraudulent scheme, even those caused by conduct occurring outside the limitations period.

The MVRA, as the 9^th reads it, allows restitution for acts or conduct in a scheme or conspiracy, even if the acts were for related conduct outside the conviction.  Restitution could also be ordered for victims not named in the indictment.  The 9^th thus concluded that though the statute of limitations may prevent the gov’t from charging acts outside the statute period, “it poses no bar to imposing restitution under MVRA for damages occurring from the full scheme.” (15).

The 9^th tracks the 11^th Circuit decision in US v. Dickerson, 370 F.3d 1330 (11^th Cir. 2004). The 11^th Circuit is the only other circuit that addresses this issue.  The 11^th reasoned that if the court could consider other conduct outside the limitations period, it could also order restitution.  The guidelines, the 11^th points out, allow relevant conduct to be considered from outside the period to set the offense level.  Ordering such restitution also does not run afoul of Hughey v. US, 495 US 411 (1990). Hughey limited the VWPA to specific conduct that was the basis of the offense, but Congress amended and broadened the VWPA to define “victim” the same as MVRA. The 9^th concludes that Hughey is no bar. The 9^th also cites a 10^th Circuit unpublished opinion in note 3: US v. Williams, 356 Fed. App’x 167 (10^th Cir. 2009).

Kudos to Kathryn Young, Deputy FPD, Cal. Central (L.A.) litigating this issue.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/02/16-50208.pdf

Case o' The Week: Convictions of King and Queen Upheld by Ninth - Anieze-Smith and Restitution

  Queen avoids custody.

   (But not restitution).

United States v. Anieze-Smith, 2019 WL 1944737 (9th Cir. May 2, 2019), decision available here.

Players: Decision by Judge Gould, joined by Judge Nguyen and District Judge Benitez. 

  Hard-fought appeal by, among others, CD Cal AFPD Kathryn Ann Young.   

Facts: Queen Anieze-Smith, and her co-defendant, Abdul King Garba, owned a medical supply company. Id. at *1. She was indicted in April 2013 – the statute of limitations went back five years, to April 2008. Id. The indictment alleged a Medicare fraud scheme involving powered wheelchairs that took place from 2006 to 2009, and alleged five executions that took place in 2008 (within the S.O.L.). Id. at *4.

   She was convicted after a jury trial, and the district court imposed restitution for the entire amount billed to Medicare – which necessarily included fraudulent acts outside of the statute of limitations. Id.

Issue(s): “[W]e turn to Anieze-Smith’s argument that the district court’s restitution order should be limited to losses traceable to executions of the fraudulent scheme that occurred within the statute of limitations.” Id.

  “Anieze-Smith’s argument presents an issue of first impression in this circuit . [W]e have held that the MVRA authorizes a district court to impose restitution based on related but uncharged conduct that is part of a fraudulent scheme . . . But we have not yet had occasion to address whether that rule applies when the conduct occurred outside the statute of limitations.” Id. at *5.

Held: “[T]he text of the MVRA does not limit restitution to the reach of the indictment, but instead authorizes district courts to order restitution for all losses directly resulting from conduct throughout the course of the fraudulent scheme. We reject Anieze-Smith’s argument and hold that the MVRA authorizes district courts to impose restitution to all victims for the losses they suffered from the defendant’s conduct throughout the course of the fraudulent scheme, even where such losses were in part caused by conduct outside the statute of limitations.” Id. at *5.

Of Note: Medicare fraud, powered wheelchairs? Sound familiar? In 2016, the Ninth decided an important “abuse of trust” enhancement issue in the context of another powered wheelchair case, United States v. Adebimpe, 819 F.3d 1212 (9th Cir. 2016); see also blog here. 

  These appeals are the tail end of a prosecution effort focused on Medicare wheelchair fraud. Tough cases to defend – particularly when the recipients walk up to the stand to testify in court, with no wheelchair, walker, or cane. See article here. 

How to Use: Anieze-Smith was ordered to pay over $800k in restitution, for offense conduct that extended over years. Id. at *3. She was a CEO with an MBA, an enrolled agent in the IRS, and she managed the company’s financial records. She was convicted after a ten-day trial. Id. at *2.

   Her sentence?

   Probation. Id. at *3.

   Remember Anieze-Smith when arguing sentencing disparity variances in these Medicare fraud cases.

                                               

For Further Reading: Last week marked the milestone of one hundred jurists nominated by President Trump and confirmed by the Senate. See article here.  By this time in his term, President Obama had 81 judicial nominees confirmed. Id. 

  Should the Ninth be expanded, with five more seats to be filled by the President during this first term? For an interesting article discussing that prospect, and reporting the Circuit's last major growth spurt, see, Ninth Circuit Recommended for Expansion. Could it mean shift to the right?, available here.

Image of Mary Queen of Scots from https://www.pinterest.com/pin/403564816588220116/

Image of Ninth Circuit Seal from https://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Ninth_Circuit  

Steven Kalar, FPD Northern District of California. Website www.calfpd.org

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