Sanchez v. Davis, No. 16-99005 (4-22-21)(Gould w/Callahan & Bea). AEDPA deference results in affirmance of the denial of petitioner’s claims. The panel held the IAC claims for failure to investigate a jailhouse informant fails because of lack of prejudice; and that counsel was not ineffective in failure to present mitigation evidence. The proportionality claim also fails.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/22/16-99005.pdf

US v. Do, No. 19-30138 (4-19-21)(McKeown w/Watford & Rothstein).

This appeal is whether, in a road rage case on the Warm Springs Reservation in Oregon, using the Assimilative Crimes Act (ACA), 18 U.S.C. § 13(a), rather than using a federal assault statute, was proper. The 9th holds it was not and reverses the conviction.

The 9th explains that ACA is to fill in gaps in federal criminal law in enclaves. A two-part test is used: does a federal statute apply? And if so, whether the federal statute precludes application of the state law. Here, the federal assault statute would apply to the conduct (firing six shots at a car as a road rage incident escalated). The federal statute precludes assimilation of state law because the federal statute and the state statute seek to punish approximately the same behavior; the federal statute reveals an intent to occupy the field of assault; and assimilating the state statute would effectively rewrite an offense defined by Congress.

Interesting analysis of the “approximate” harm. The statutes need not be exact; nor analogous. Form is not elevated over substance. Here, the state statute deals with assaultive conduct with a dangerous weapon, as does the federal statute. As for rewriting, the federal statute requires an intent to do bodily harm, while the state statute does not. The federal statute has a max of 10 years; the state statute has a max of 5 years. Without the intent to do bodily harm, which is arguable as the shots were in the air, the government could only get simple assault (six months max). The government admitted at argument it wanted the higher state max. This is not a good enough reason to end run the federal statutes.

Congrats to AFPDs Elizabeth Daily and Gerald Needham, Oregon FPD (Portland). 

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/19/19-30138.pdf

 

US v. Koziol, No. 19-50018 (4-13-21)(Bade w/Bea & Drain). A Hobbs Act conviction for extortion can be based on a sham threat. The extortion here – against a well-known entertainer and the manager—was fabricated, but threats of exposure of sham salacious or violent acts can support the conviction. The 9th finds any instructional error by the district court stating that damage can be to a reputation is harmless. Harmless too were several evidentiary errors related to the opinions on the truthfulness of witnesses. The 9th does remand for resentencing. The district court erred when it failed to use the guideline 2X1.1 which applies to “attempts” where all the steps were not completed.

Another hard-fought appeal by Carl Gunn, CJA. 

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/13/19-50018.pdf

US v. Ghanem, No. 19-50278 (4-12-21)(Boggs w/M. Smith & Murguia).  Venue when extradited for acts outside the US is the crux of this appeal. This appeal involves convictions after an undercover sting operation for illegal international arms-dealing (and other counts). The government extradited the defendant from Greece on an arms export control act charge originating in Cal Central. He landed in the ED NY. Then he was sent to Cal Central (LA) and faced a superseding charge for 2332g charge (dealing in surface to air missiles). This carries a mandatory minimum 25-year sentence. He pled guilty to all charges but this one and went to trial. The defendant waived his venue challenge by failing to bring in during pretrial motions. The government though asked for and got an erroneous jury instruction on venue. He was entitled to a correct instruction. This was not harmless. The conviction is vacated and remanded.

This appeal deals with the first impression issue of when a person is deprived of liberty under 3238. This statute sets venue for when an offense takes place outside the United States.  The test is where the defendant is first brought, upon arrest, and connected with the offense. The government argues it wasn’t ED NY for 2332g; he was brought back on charges unconnected with 2332g. The defendant argues it was. The defendant was right. The opinion goes through the analysis, and prior precedent in this circuit and cases in other circuits. It looks to the “in connection with” test that has developed, even if not brought when first landed, and not just when the charge is indicted. The test is a factored one and looks to the centrality of the charge to the arrest, the lapse in time, and government conduct. The 9th does not use the indictment centric test (developed by the 5th). Here, the government’s venue instruction, adopted by the court, that stated the foreign arrest was irrelevant was erroneous. The defense instruction was rejected which left it up to the jury if there was a foreign arrest connection.  This was not harmless, as the government conceded the events took place outside the US; the investigation centered on the surface to air missiles, and that the government tried to manipulate venue.  

Congrats to Ben Coleman, CJA, for the win.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/12/19-50278.pdf

US v. Aruda, No. 20-10245 (4-8-21)(Per curiam w/Wardlaw, Gould, & Owens). Who says the 9th is without “Compassion”? In a Compassionate Release appeal, under the First Step Act, the 9th holds that the USSG’s 1B1.13 is not an “applicable policy statement” for such motions filed by a defendant. The USSC’s policy statements, which sets forth various limiting factors, are for BOP’s motions; they may inform the district court’s discretion, but do not control. The 9th vacates and remands the district court’s denial because the court’s denial was based on the motion not meeting the factors in the policy statement.

The 9th’s decision recognizes that the First Step Act creates another means of compassionate release. It can be for “extraordinary and compelling reasons.” This is left undefined.  It expanded the use of such release. The Act does state that motions should be consistent with any policy statements by the Sentencing but there are none: the Sentencing Com’n, lacking a quorum, has not issued policy statements. Thus, courts can determine what are “extraordinary and compelling” reasons.

The 9th’s opinion joins five other circuits.

The 9th also holds that 3582(c)(1) motions are reviewed for abuse of discretion.

The importance of this per curiam opinion is the emphasis on the First Steps Act’s intent to expedite and expand release and that the Guidelines policy statements restrictions on such motions bind only the BOP motions and are not binding on defendant’s motions.

The opinion is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/08/20-10245.pdf

US v. Furaha, No. 20-10063 (3-25-21)(M. Smith w/Wallace & Lasnik). In an issue of circuit first impression, the 9^th holds that a prior conviction under a 924c can be a “controlled substance offense” for a U.S.S.G. 2K2.1(a)(4)(A) enhancement (prohibited possessor) because the statute is divisible, and a modified categorical approach can be used. The defendant – a prohibited possessor of a firearm -- argued that his prior 924c conviction is overbroad as it includes simple possession. The government agreed. However, the 9^th finds 924c to be divisible here as the prior charge and jury instructions require the court to specify the COV or drug trafficking offense that is the predicate. The plea agreement, further, demonstrates that the defendant pled guilty to two drug trafficking offenses. The 9^th thus follows the 8^th Circuit, US v. Williams, 926 F.3d 966 (8^th Cir. 2019).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/25/20-10063.pdf

Walden v. Shinn, No. 08-99012 (3-12-21)(Thomas w/Bybee & Ikuta). This is an Az FPD-CHU case. The 9^th affirmed the district court’s denial of capital habeas relief. Under AEDPA deference, the 9^th upheld the state supreme court’s finding no error in denying severance (noncapital victims with capital victim); the 9^th also upheld the finding that the identifications were not a result of impermissible suggestive police procedures. Petitioner’s claim of McKinney nexus (error to require nexus for mitigation) was not cognizable on appeal as he failed to raise it in state court. IAC claims withdrawn could not be resurrected through “relating back” to timely claims. The 9^th also found there was undue delay. AEDPA also foreclosed relief on introduction of “gruesome” crime scene photos.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/12/08-99012.pdf

1. US v. Lucero, No. 19-10074 (3-4-21)(Bumatay w/Bade & Marquez; partial dissent by Bade). The 9th deals with the Clean Water Act. The 9^th remands for a new trial. The winning issue concerns jury instructions and the definition of knowingly discharging pollutants “into water.” The complex statutes and definitions can define water as being dry land, provided it meets the definition of wetlands or tributaries. The jury instructions fail to make clear that the defendant had the mens rea necessary when he put dirt on land that can be considered “in water.” The 9th also held that the requirement of “into waters of the United States” is jurisdictional. Bade’s dissent would require mens rea to attach to “into waters of the United States.”

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/04/19-10074.pdf

2.  US v. Rundo, No. 19-50189 (3-4-21)(per curium w/Fernandez, Paez, & Tigar; partial concurrence and dissent by Fernandez). Is the Anti-Riot Act unconstitutional? Ah, not the January 6th insurrection but in charges brought against the “Rise Above Movement” (RAM). RAM is a white supremacy nationalist militia group that engaged in violent acts at political rallies in the spring of 2017. The district court dismissed the charges as unconstitutionally broad under Brandenburg v. Ohio, 395 US 444 (1969), which gives First Amendment protection to advocacy of force except where it is directed to inciting or producing imminent lawless action and likely to incite such action. The 9th reverses the dismissal, finding most of the Act not unconstitutionally overbroad. The actions unconstitutionally overbroad — organizing and urging —can be severed. Fernandez, dissenting, would not find those two acts overbroad.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/04/19-50189.pdf

US v. Olson, No. 19-16591 (2-22-21)(Per curiam w/Thomas, Schroeder, & Berzon; concurrence by Thomas; concurrence by Berzon). This is an interesting opinion: does the right to effective counsel apply to plea negotiations before a formal charge? The 9^th holds that circuit precedent binds it to reluctantly say “no”. The panel and concurrences conclude this is not a good vehicle to overturn precedent because counsel was not ineffective. The 9^th though should be on the lookout.

This case arises when petitioner received a “target letter” for a fraud investigation. Petitioner was appointed counsel, who received an offer of the low end of the guidelines for tax evasion. There was a recommended offer of 30 months. The government refused to share discovery with counsel, and counsel stated that she could not advise her client without having reviewed the evidence. The offer was withdrawn. The petitioner was indicted. With new counsel, he eventually pled and received a 48-month sentence.

Petitioner filed a 2255, alleging IAC. He claimed he was not informed of the plea. Counsel provided notes, emails, and a declaration affirming the petitioner was notified. The district court denied petitioner’s motion to vacate because the 9^th Circuit in US v. Hayes, 231 F.3d 663 (9^th Cir 2000)(en banc) adopted a bright-line rule that the Sixth Amendment right to counsel only attaches upon initiation of formal charges. The dissent warned about gamesmanship. Other circuits have raised similar concerns.

The 9^th discusses the role of plea negotiations, and how they frequently occur before formal charges. Frye extended IAC claims to post-indictment plea negotiations. However, there was no IAC here on the merits.

Thomas, concurring, writes that in his view, there is a Sixth Amendment right to counsel when a “functional equivalent of an indictment exists;” and that Hayes does not foreclose such a result.

Berzon, concurring, writes that she “reluctantly” concurs in the judgment. She believes Hayes imposes a far more stringent test for the Sixth Amendment right to counsel than is set by the Court. She would have the 9^th reconsider Hayes at “the first opportunity.”

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/22/19-16591.pdf

Case o' the Week: Overbreadth Done if you Stash A Gun -- King and Overbreadth in Search Warrants

Not a good sign of great things to come, when an opinion begins: 

Firearms seized in search of King's residence

“While searching Sheldon King's home pursuant to a warrant, Fresno police discovered a medley of firearms.”

United States v. Sheldon King, 985 F.3d 702 (9th Cir. Jan. 14, 2021) (emphasis added), decision available here.

Players: Decision by Judge Bumatay, joined by Judge Callahan and D.J. Presnell. 

Hard-fought appeal by former CD Cal (and Alaska!) AFPD Carlton Gunn.  

Facts: A man assaulted a woman, and threatened her with a silver and gold revolver. Id. at 706. In a jail call, the assailant asked the victim to get the “thing” (the gun) to “Dubs” – (aka, the defendant in this case, Sheldon King). King was a felon. Id. Cops got a search warrant for King’s residence, to search for any firearm. Id. The search turned up a “medley of firearms.” Id. He was charged with Section 922(g)(1), and his suppression motion was then denied. Id. King entered a conditional plea preserving an appeal on the suppression motion.  

Issue(s): “King now brings this appeal . . . challenging the validity of the search warrant. Specifically, he argues that the warrant was overbroad—that there was only probable cause for the silver and gold revolver, and no other firearms.” Id. at 707.

Held: “[W]e conclude that the warrant here did not violate the Fourth Amendment. In the affidavit, a police officer detailed his investigation, his training and experience, and his suspicion that King was a felon in possession. The affidavit noted that King had two prior felonies . . . . Despite this criminal history, the affidavit sets out that King took possession of the “large silver & gold revolver” of unknown caliber shortly after it was used in a violent domestic dispute. The officer also explained how he suspected that other weapons might be present at King’s residence since other “individuals [may] arrive at the scene of [the] search” and that, in his experience, “many of these individuals are found to be in possession of weapons.” Moreover, the officer explained that, as a felon, any firearm found in King's possession would constitute evidence of a felon-in-possession offense. The officer expressed his belief that King was in violation of the felon-in-possession statute. These facts, taken together, provided the judge with a substantial basis to authorize the broader search for “any firearm.” Id.

 Of Note: The Ninth assures us there was probable cause for any firearm based on an assertation: that King’s willingness to hold a gun for a friend made it likely that he would also have other guns. See id. at 709 (“We doubt that the domestic-abuse suspect would have given the firearm to someone completely inexperienced in possessing firearms, especially a firearm that was just used in a crime. It's fair to think that serving as an illicit depository of another person's firearm makes King's possession of other firearms likely.”)

We may question that logic, but the unfortunate principle probably holds after King: the “stash-it” guy is likely now subject to broader search warrants than just the specific [gun/ammo/drugs ] awkwardly referenced in a jail call.

How to Use: “Gunner” Carl Gunn found a problem with the Career Offender sentence imposed in this case, and took it up to the Ninth. Unfortunately, a sentencing appeal was not carved out in the conditional plea. Judge Bumatay enforces the plea agreement’s waiver of sentencing appeals (although it looks like this potential problem may have cost Mr. King six offense levels). Id. at 711.

The rules around federal sentencing feel like they are changing daily – take a close look at this discussion in King when weighing whether a plea agreement waiving an appeal is worth it.                                               

For Further Reading: In 2016, SFPD Officer Nicholas Buckley, Star # 528, was caught by AFPD Ellen Leonida when a (surprise) surveillance video contracted every relevant fact of his testimony. 

When District Judge Charles Breyer explained that he was “deeply saddened” by what he saw in this hearing, the federal case was promptly dismissed. See blog entry describing evidentiary hearing here. 

Unbelievably, Officer Buckley is now back on patrol in San Francisco. See San Francisco Examiner article here. 

  There is no more potent example of toothless police discipline in San Francisco, than Buckley back on the beat.  

 

 

 

Image of firearms seized from Mr. King’s house from https://www.fresnobee.com/news/local/crime/article224126235.html

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

 

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Case o' The Week: The Ninth Don't Feel Our Writ Appeal - Repp, the IADA, and Resolving Violations of Supervised Release

 Form 12 resolutions have a bad Rep[p] in the Ninth.

 United States v. Repp, 2021 WL 613385 (9th Cir. Feb. 17, 2021), decision available here.

Players: Decision by Judge Tallman, joined by Judge Callahan and visiting DJ Christensen.  

Facts: Repp was on supervised release out of the CD Cal. Id. He committed a new federal crime, and was incarcerated in Arizona. Id.

  After the district court in L.A. signed an arrest warrant for the “Form 12” (alleging a violation of supervised release), a detainer was slapped on Repp. Id.

  Repp moved the L.A. District Court judge for a writ of habeas corpus ad prosequendeum, to the Warden at FCI Phoenix, directing the warden to transport him to L.A. to resolve the Form 12. Id.

  That motion was denied by the CD Cal. District Judge. Id. Repp appealed the denial of the order.

Issue(s): “May an inmate currently serving time on one federal sentence expedite the resolution of a newly lodged detainer to answer for a supervised release violation in another federal district that was triggered by his commission of the crime for which he is currently incarcerated?” Id. at *1.

Held: “Because the denial of Repp's motion is not a final or appealable collateral order, we lack jurisdiction over this appeal and must dismiss it.” Id.

Of Note: A motion for a “writ of habeas ad prosequendum” seems a laborious path to get a Form 12 in another district resolved. Why didn’t Repp just file an Interstate Agreement on Detainers Act (“IADA”) demand? See 18 USC App. 2 § 2. 

Because, to our great frustration, the IADA does not apply to detainers tied to violations of supervised release. See Repp, 2021 WL 613385, at *1 (quoting United States v. Bottoms, 755 F.2d 1349, 1350 (9th Cir. 1985)). While Bottoms interpreted the language of the IAD, it also strongly hinted that Congress should clean up the wording of this statute. See Bottoms, 755 F.2d at 1349.

The Ninth in Bottoms was right about the language of the IADA – it makes no sense that a serial bank robber can make an IADA claim to resolve all charged robbery cases in multiple jurisdictions, but an inmate with a hanging Form 12 cannot use the IADA to do the same thing. Note, however, that Repp only holds that the Ninth has no jurisdiction to consider Repp’s appeal – it does not appear to prohibit Repp’s “writ ad prosequendum” gambit. This creative writ approach appears to have survived, for us to try again with a more sympathetic district court.  

How to Use: Form 12 detainers have a real, negative impact on the access to programing in BOP custody, and on early release to half houses – exactly the opposite of what Probation should be encouraging. Until the IADA is fixed, this unfair discrepancy in lack of access to this mechanism (between “new” cases and Form 12 allegations) is an interesting theory for reduced custodial terms in Form 12 hearings (along the lines of the good ole’ Sanchez-Rodriguez “lost opportunity to serve a concurrent sentence” theory). See United States v. Sanchez-Rodriguez, 161 F.3d 556 (9th Cir. 1998) (en banc). Notably, in Repp Judge Tallman expressly flags this “procedural delay” argument as a pitch that Repp can make when he finally gets back to Los Angeles to be sentenced on his supervised release violation. See Repp, 2021 WL 613385, at *2.

For Further Reading: In 2013, history was made here in San Francisco when Attorney General Eric Holder announced the new “Smart on Crime” initiative. See Smart on Crime overview here. 

That brave reform effort worked -- and its principles were then adopted across the political divides. See article here. 

Judge Garland (finally) has a confirmation hearing scheduled for his new A.G. gig. See NPR article here. 

Our first question for His Honor? How quickly will DOJ revive A.G. Holder’s Smart on Crime principles?

 

 

Image of “Repp” from https://www.besttechtips.org/how-to-remove-repp-ransomware-and-decrypt-repp-files/ .

 

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

 

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