Friday, March 22, 2019

US v. Cooley, No. 17-30022 (3-21-19)(Berzon w/Thacker & Hurwitz). This is an interesting Indian jurisdiction/ICRA case. The 9th affirms the district court’s suppression of evidence (meth) arising from a tribal officer’s encounter, on a public nontribal road, with a non-Indian defendant. The encounter occurred when the officer stopped to help a parked truck on the side of a public road.  The officer noted that the driver “seemed to be non-Indian.” One thing led to another (blood shot eyes, rifles, affected speech), and meth was uncovered in two searches of the truck.  The district court suppressed for lack of jurisdiction: a tribal officer does not have authority to detain an individual on a public road unless it is obvious or apparent the individual as violating state or federal law.

The 9th affirmed suppression, although not because the individual “seemed like a non-Indian.” The 9th stressed that appearances vary widely; the officer cannot make assumptions based on appearances.  Rather, the officer should have asked about status. After all, Indian jurisdiction is political (Antelope) and based on sovereignty.  Here, though, the officer went beyond his jurisdiction.  Since the officer did not inquire about status, and the defendant was a non-Indian, the detention was invalid.

The 9th then makes clear that under ICRA (Indian Civil Rights Act), exclusion of evidence is proper. The opinion discusses the sovereignty of the tribes; the role of the exclusionary rule as protecting the 4th amendment, and the presumed incorporation of the exclusionary rule when ICRA was enacted. The exclusionary rule extends to Indian jurisdiction.  The Reservation is covered.  What was assumed to be implicit by the 9th is now made explicit.

There is more. The 9th does find another possible basis for a tribal officer to arrest a nontribal member. The basis would be reasonableness. It requires considering the extent of tribal authority pursuant to ICRA; and whether, at the time of the founding era (!), an individual could execute lawful arrest.

There are not many ICRA cases.  This is a significant one.

The decision is here:


Tuesday, March 19, 2019

US v. Korte, No. 18-50051 (3-15-19)(Owens w/Nelson & Callahan; Nelson concurring). Being a parolee is tough, especially when it comes to the 4th Amendment.  The defendant went on a crime spree (bank robberies) while being on parole.  Investigating, the police put a GPS device on his car and then later searched the trunk. The 9th held that the trunk search was permitted under precedent for being on parole.  It was his car, and had greatly diminished expectations of privacy. The GPS device was also permitted; since his phone could be searched, Riley notwithstanding, then putting a device on the car was even less intrusive.  The police also had gotten the defendant’s cell tower location movements by a court order.  The 9th applied a “good faith” analysis since the order was issued prior to Carpenter v. US, 138 S. Ct. 2206 (2018). Carpenter required a warrant.  The 9th sidestepped whether a warrant would be required (although under the analysis, it doesn’t look good).

Nelson, concurring, decried the diminishment of 4th amendment protections for those on probation and parole.  She calls for a reexamination as technology moves forward. 

The decision is here:

Take note of US v. Read and the application of McCoy to insanity defenses.

1.     US v. Door, No. 17-30165 (3-12-19)(Christen w/Thomas & McKeown). This is a Guidelines sentencing issue in a prohibited firearm possessor case.  Using the categorical approach, the 9th remanded for resentencing because a Washington conviction for second-degree assault was not a “crime of violence.” However, Washington felony harassment is a “crime of violence.”  

Congrats to CJA attorney Carl Gunn for the win.

The decision is here:

2.     US v. Read, No. 17-10439 (3-14-19)(Hawkins with M. Smith & Hurwitz).  In an issue of first impression, the 9th holds that a defendant has a Sixth Amendment right to demand that counsel not present an insanity defense.  The 9th finds that McCoy v. Louisiana, 138 S. Ct. 1500 (2018) requires such an outcome. The error is structural. The conviction is vacated and remanded for a new trial.

Congrats to CJA Davina Chen for the win.

The decision is here:
3.     US v. Sha-Ron Haines, No. 17-10059 (3-14-19)(Adelman w/Wallace & Friedland). This involved FRE 412 and sex trafficking charges. The defendant was convicted on a slew of charges involving sex trafficking minors.  The defense was that the defendant was no pimp; he was just along for the ride; and the victim acted independently.  To prove this, the defendant sought to cross-examine the victim on prior prostitution. The district court precluded the line of questioning under the rape shield law, FRE 412.  In affirming the convictions, the 9th found no error in the court precluding such a line of questioning. Prior prostitution was not relevant to these acts.  The defendant argued here, though, that the victim witness wanted to testify to her prior prostitution (there was a change of heart prior to trial and a recantation). The 9th concluded that the rule does not hinge of the desire of the witness to testify or not; it is a rule of evidence, and the court must apply.  The 9th also found that any error, and it found none, was harmless.  

The decision is here:

4.      US v. Prien-Pinto, No. 18-30055 (3-12-19)(Bybee w/Fletcher & Burns). The issue is the constitutionality of a guidelines enhancement for possession of a stolen firearm.  Under 2K2.1(b)(4), the sentence is enhanced for a prohibited possessor if the firearm was stolen. The commendatory requires the enhancement regardless of the defendant’s knowledge or mens rea. The decision is controlled by US v. Goodell, 990 F.2d 497 (9th Cir. 1993). Subsequent Supreme Court decisions on the guidelines, their mandatory nature, the role of commentary, and the Sixth Amendment affect the Goodell decision.  The 9th joins the ten other circuits in so holding.

The decision is here:


Sunday, March 17, 2019

Case o' The Week: "Demons Made Me Do It" - Read, Mentally-Ill Clients and Insanity Defenses

Still crazy, after all these years.

United States v. Read, 2019 U.S. App. LEXIS 7652 (9th Cir. Mar. 18, 2019), decision available here.

Players: Decision by Judge Hawkins, joined by Judges M. Smith and Hurwitz. Reversal for Mr. Read earned by former CD Cal AFPD, now CJA Attorney, Davina Chen.

Facts: While an inmate at FCI-Phoenix, Read stabbed his cellie thirteen times. Id. at *2. When later detained, Read said he had no memory of the attack. Id. at *3.
  He was charged with federal assault.
  A shrink diagnosed Read with schizophrenia and severe cannabis use disorder. Id. Read was found incompetent and sent to the BOP for restoration. Id.
  The BOP shrink noted that Read experienced the sensation of having his stomach cut out with a knife, by virtue of a voodoo doll being used against him. Id. at *4. The BOP doctor also confirmed the schizophrenia and cannabis-use diagnoses. Id. Nonetheless, the BOP psychologist found Read competent to stand trial. Id.
  Defense counsel then hired a neuropsych, who opined that Read was unable to form the criminal intent for the assault. Id. Defense counsel noticed an insanity defense, prompting another gov’t psych eval. Id.
  Read returned from a remote evaluation. After a Faretta hearing he successfully moved to proceed pro se (with the defense attorney as standby counsel). Id. Read flatly rejected an insanity defense, and insisted instead with going forward with a defense theory of “demonic possession.” Id. at *6-*7.
  The court then reappointed standby counsel as Read’s counsel, who “ably, but unsuccessfully, . . . present[ed] an insanity defense at trial.” Id. at *8.

Issue(s): “We address a question of first impression: whether a criminal defendant has the Sixth Amendment right to demand that counsel not present an insanity defense.” Id. at *1.
   “Read claims the district court violated his Sixth Amendment right to present a defense of his own choosing by terminating self-representation and permitting counsel to make an insanity defense.” Id. at *12. 
  “[W]e today face a question of first impression in this circuit.” Id. at *13.

Held: “We hold that McCoy v. Louisiana, 138 S. Ct. 1500 (2018), requires under the facts of this case that the demand be honored. We . . . reverse and remand for a new trial.” Id. at *1.
  “[A] district court commits reversible error by permitting defense counsel to present a defense of insanity over a competent defendant's clear rejection of that defense.” Id. at *12.

Of Note: Read is peppered with the “bizarre.” The D.J. characterized Read’s “demonic possession” defense as “bizarre.” Id. at *8. Judge Hawkins characterizes McCoy’s defense theory in the controlling SCOTUS McCoy case as “every bit as bizarre as Read’s.” Id. at *14. The Supreme Court in McCoy, followed by the Ninth Circuit in Read, place the highest value on the “autonomy” rights of (patently mentally-ill) defendants who want to pursue these “bizarre” defenses and reject insanity defenses over the advice of counsel.

  A decade ago, Judge Reinhardt predicted precisely the – well, bizarre – real world outcomes created by this focus on the "autonomy" of mentally ill defendants in his compelling Farhad concurrence. See 190 F.3d 1097, 1107 (9th Cir. 1999) (Reinhard, J. concurring)  ("The right to self representation must be balanced, like the right to waive conflict free counsel in Wheat, or the right to a public trial in Estes, against the Due Process Clause's fundamental, guarantee that trials will be reliable, just, and fair. Surely if the right to a fair trial is compelling enough to justify the Court's previous limitations on Sixth Amendment rights, it is compelling enough to limit, in appropriate cases, the Sixth Amendment right at issue here. As with most other individual rights, there are competing and countervailing interests, both personal and social. Nothing inherent in the implied right of self representation justifies exalting that right over all others in the constitutional constellation, or requires the courts to permit Farhad and others with similar limitations or incapacities to turn criminal trials into travesties. Rather, courts can develop rules for determining when the exercise of the right to self representation would be consistent with the mandate of the Fifth Amendment, and when it would not. In the latter case, the right to self-representation would give way."); See generally blog entry here.
   However, while wrestling with Read down in the district court trenches, note an interesting hint from the Ninth. Judge Hawkins explains that, at this time, the Ninth refuses to limit the right to refuse an insanity defense in cases where the defendant is actually mentally ill. Id. at *20 & n.5. Judge Hawkins throws in an intriguing “but see” to a case imposing that limit – maybe an invitation for a future argument?   

How to Use: Can our truly nutty clients go pro se?
  Probably not.
  In a very helpful holding, Judge Hawkins gives much guidance on what a D.J. should consider when making this tough call. Id. at *17-*18.
  Read Read for a valuable discussion on Faretta / Edwards / Ferguson pro se issues – Read is a now lead pro se case.   
For Further Reading: In 1998, Theodore “the Unabomer” Kaczynski pleaded guilty and avoided the death penalty. See NYT article here. 

  In a later dissent from the denial of a habeas petition, Judge Reinhardt described the tensions between the mentally-ill Kaczynski and his very able defense counsel over the question of an insanity defense at trial. United States v. Kaczynski, 239 F.3d 1108, 1119 (9th Cir. 2001) (Reinhardt, J., dissenting).
  Looking back at Kaczynski through the prisms of McCoy and Read, would the Unabomber have gone to trial without an insanity defense (and thus been awaiting execution) today?

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


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Sunday, March 10, 2019

Case o' The Week: En Banc Petition, Grant? - Antonio Gilton, Leon "Good Faith," and Search Warrants

  The Ninth holds the D.J. was prescient: we do have a privacy interest in our cell site location data.

  The Ninth holds the D.J. was correct: there was insufficient probable cause to support a valid search warrant.

  (And the Ninth should take this opinion en banc . . . )

United States v. Antonio Gilton, 2019 WL 1008722 (9th Cir. Mar. 4, 2019), decision available here.

Players: Decision by Judge Bybee, joined by Judge Wallace. Forceful dissent by Judge McKeown.
  Hard-fought appeal by ND Cal CJA Stalwart Mark Goldrosen (and half of the NorCal CJA Bar as Elmore’s co-counsel).  

Facts: Pimp Sneed had a minor “girlfriend:” “L.G.” Id. at *1. L.G. had been staying with her cousin Antonio Gilton in L.A. Id. Her parents did not approve of Sneed.
  Early one morning, Sneed waited to pick up L.G. near her parents’ home in San Francisco. L.G. later told police that a SUV approached Sneed in his car, shots were fired, and Sneed was killed. Id. Antonio Gilton’s cell number was in L.G.’s phone. Id. at *2.  
  A snitch implicated L.G.’s father, Barry Gilton, and an unknown person. Id. Cell site location on Barry Gilton showed his cell moving through San Francisco and near the shooting, when he had claimed to be asleep at home. Id. SF Police Sgt. Gary Watts obtained a search warrant for the cell site location data for Antonio Gilton, relying on the above information. Id.
  When Antonio Gilton was later charged in federal court, he moved to suppress the cell site location data from this warrant. Id. District Judge William H. Orrick granted that motion, correctly finding no probable cause for the cell site location search. Judge Orrick rejected the government’s good faith pitch, holding “it was entirely unreasonable to believe that the affidavit’s passing, innocuous references to A. Gilton established probable cause to obtain his cell phone data.” Id. at *2.
  The government appealed.

Issue(s): “[T]he government . . . obtain[ed] a warrant authorizing the acquisition of Gilton’s CSLI data. Our analysis is thus confined to the questions of whether that warrant was supported by probable cause, and, if not, whether the search should nevertheless be upheld on the basis of the officers’ good faith reliance on the warrant.” Id. at *3.

Held: “Although we agree with the district court that the warrant authorizing the seizure of Gilton’s location data was not supported by probable cause, we conclude that the deficiencies were not so stark as to render the officers’ reliance on the warrant ‘entirely unreasonable.’ See United States v. Leon, . . . (1984). We reverse.”

Of Note: Judge McKeown’s dissent correctly challenges the “good faith” holding of Antonio Gilton

The Hon. Judge Margaret McKeown
Judge McKeown explains, “The warrant affidavit for Antonio Gilton’s cell-site location information (“CSLI”) so thoroughly lacked probable cause that it was objectively unreasonable for the officer to have relied on it. The affidavit’s only statement vaguely implicating Antonio was a suggestion that a Gilton family member may have been involved in the murder. As any reasonable officer should have known, ‘none of the facts in the affidavit, singly or en masse, provide a reasonable basis from which to infer that’ Gilton’s CSLI connected him to the murder. United States v. Grant, 682 F.3d 827, 841 (9th Cir. 2012). Weak inferences from vague facts do not amount to probable cause as to specific individuals. These are precisely the circumstances where the good faith exception cannot save a defective warrant.” Id. at *7 (emphasis added).
   This opinion cries out for en banc review, for its unprecedented extension of Leon “good faith” to inoculate a search from a patently deficient warrant.

How to Use: Though a bitter loss on Leon “good faith,” Antonio Gilton concedes the privacy protections set forth by SCOTUS in Carpenter. In NorCal, however, even that is weak tea: our prescient bench correctly anticipated Carpenter, and CLSI warrants have long been the norm. See Judge Koh’s decision here                
For Further Reading: Judge McKeown is right: Antonio Gilton cannot fairly be reconciled with the Ninth’s great Leon case: United States v. Grant, 682 F.3d 827,841 (9th Cir. 2012).
  For a recap of Judge Berzon’s Grant decision (joined by CJ Thomas and Judge Wardlaw), see the summary here (just avoid the painfully incorrect “For Further Reading” speculation in this blog posting . . .)

Image of the Honorable Judge Margaret McKeown from

Steven Kalar, Federal Public Defender Northern District of California. Website at


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Monday, March 04, 2019

Spreitz v. Ryan, No. 09-99006  (3-4-19)(Paez w/Berzon; dissent by Tallman).
Note: This is an Az FPD Case.  

The panel vacates a capital sentence and remands for resentencing. The panel holds that the Az Supreme Court committed clear Eddings error in requiring a nexus between mitigation and the offense. The petitioner’s claim was not procedurally defaulted because he raised it when he had the opportunity in his state post-conviction.  Since the Eddings error was clearly contrary to Supreme Court precedent, the error is reviewed de novo.  It was not harmless.

Dissenting, Tallman finds no record of the courts requiring a nexus. Even if there was an Eddings error, it was harmless.

Congrats to Tim Grabrielsen, AFPD in the Az FPD CHU (Tucson) for the victory.  

The decision is here:

Sunday, March 03, 2019

Case o' The Week: "Hall"marks of a "normal" family? - Hall and Conditions of Supervised Release

  What is a “normal” family, and “normal” familial relations?

   (The Ninth, to its great credit, doesn’t know either).
United States v. Leroy Hall, 912 F.3d 1224 (9th Cir. Jan. 11, 2019), decision available here.

Players: Per curiam decision by Judges Gould, Berzon, and ED NY DJ Block. Nice win (again) for AFPD Elisse Larouche (argued), and AFPD Dan Kaplan, D. Arizona FPD.  

Facts: Hall and his son were sentenced to prison for a fraud involving a false money orders. Id. at 1226. (The pair were already incarcerated for a separate joint criminal enterprise.). Id. 
   Over Hall’s objection, the district court imposed a condition of supervised release, providing that he was “permitted to have contact with [his son] only for normal familial relations but is prohibited from any contact, discussion, or communication concerning financial or investment matters except matters limited to defendant’s own support.” Id.

Issue(s): “Hall objected at sentencing that the condition is unconstitutionally vague.” Id.

Held: “We agree, and strike the offending words ‘only for normal familial relations’ from the condition.” Id. 
  “If the district court meant only to prohibit Hall and [his son] from participating in illegal activities together, it could have said exactly that and no more, as defense counsel suggested at the resentencing hearing.” Id. at 1227.

Of Note: This opinion is the second time the district court was reversed on conditions for this defendant. In a previous sentencing, the district court had prohibited Hall from associating with any felon, absent permission from the P.O. Id. at 1226 & n.1. The Ninth reversed in a mem dispo, because the district court had imposed that condition “without justifying or limiting the restriction on Hall’s right to associate with his children.” Id.

How to Use: For a brief decision, this opinion is surprisingly rich in useful concepts for future S/R fights. 
  First, as the Ninth explained in the mem dispo described above, and again emphasized here, conditions that purport to limit contact with the defendant’s children are going to get “careful” review. Id. That familial contact is a “fundamental” right. Id. 
  The Ninth also is skeptical of a condition that limits contact to “normal familial relations.” As the Court asks, what is a “normal” family, and what does a “normal” family “normally” do? Hall is a welcome Ninth shout-out to the “tremendous diversity of family structures and family habits” in America. Id. at 1227. 
  Finally, what is the springboard for the Ninth’s holding that the condition was unconstitutionally vague? Johnson v. United States (2015): a SCOTUS gift that keeps on giving. Id.  
For Further Reading: Before a defendant can be incarcerated for a violation of supervised release, the Sixth Amendment requires that he or she be afforded a jury trial and that the alleged facts be proved beyond a reasonable doubt. Makes perfect sense to us in the defense bar – and maybe to the Supreme Court as well!
  Last Tuesday, in the Haymond argument, Justice Gorsuch wondered why the federal government was “so anxious to avoid having the involvement of citizens in this process?” He wasn’t alone – a clear majority of SCOTUS (including the strong voice of Justice Sotomayor) seemed to agree. See Gorsuch and Sotomayor Team Up Yet Again in Defense of the Sixth Amendment, available here
  We’ll concede there may be an asterix or two in this hoped-for victory: the Haymond statute at issue requires a five-year term after a S/R revocation for child porn (thus triggering all sorts of Apprendi issues). See SCOTUS blog article here
  Must “vanilla” S/R revocations -- that don’t require custody terms -- also be proved beyond a reasonable doubt in a jury trial? We’ll never know if we don’t fight for it – preserve Haymond objections in supervised release revocations.

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


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Saturday, February 23, 2019

Case o' The Week: Waver in Disfavor - Depue, Waiver and Forfeiture of Appellate Claims

  An en banc court of the Ninth has found that a defendant forfeited his challenge to a guideline sentence.

United States v. Depue, 912 F.3d 1227(9th Cir. Jan. 14, 2019) (en banc),
decision available here.

Players: Decision by Judge Berzon, joined by CJ Thomas, and Judges Fletcher, Paez, Berzon, M. Smith, Ikuta, Christen, Nguyen, Watford, Hurwitz, and Friedland. 
  Federal Defender Amicus effort by AFD’s Vince Brunkow and Michael Marks, Federal Defenders of San Diego, Inc.  

Facts: Depue, who represented himself, was convicted of mortgage fraud after a jury trial. Id. at 1230. The government recommended a whopping OL 39, based on its loss theories. Id. at 1231. The PSR parroted this calculation: pro se defendant Depue didn’t object. Id. 
  Depue was sentenced to over twenty-one years. 
  He appealed, arguing that the loss calculations were erroneous. Id. A three-judge panel held Depue waived his objections to the alleged Guideline errors. Id. at 1231-32. 
  The case went en banc.

Issue(s): “We are asked to explain when a defendant is entitled to plain error review of challenges to his sentence that he failed to raise in the district court. Our cases have consistently held that a defendant waives his rights and precludes plain error review only when there is evidence that he knew of his rights at the time and nonetheless relinquished them. Twenty-one years ago, we explained this point in an en banc opinion. United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc).” Id. at 1229.

Held: We reaffirm today this distinction between waiver and forfeiture.” Id. 
  “Confining our en banc consideration to Depue’s challenge to the Guidelines calculations, we hold that Depue’s failure to object to the Guidelines calculations at sentencing constitutes forfeiture subject to plain error review, but that there was no plain error.” Id. at 1230 (emphasis added).

Of Note: The Ninth reviewed Depue’s claims for plain error. The threshold issue for Olano “error” is whether the claim was “intentionally relinquished or abandoned.” Id. at 1232. As Judge Berzon explains, “forfeited claims are reviewed for plain error, while waiver precludes appellate review altogether.” Id. (emphasis added).  
  What makes for a “waiver?” Evidence that the defendant knew what they were giving up – a mere failure to object isn’t enough. 
  Judge Berzon writes that “The relevant question is whether Depue knew the substantive legal rules underlying the particular challenges to the Guidelines calculation he raises on appeal, and knew that the district court’s calculation violated those rules.” Id. at 1233-34. The en banc court holds that Depue didn’t know what he was giving up, so he didn’t waive. This distinction “between waiver and forfeiture is particularly important in the sentencing context.” Id. at 1234. A critically important holding, particularly for the extraordinarily complex Guideline (and Taylor analysis) sentencing process – it gives us a shot at plain error review, and getting a botched sentence fixed, on direct appeal. 
  This is a thoughtful opinion, buttressed by policy considerations, and is just flat-out fair: no surprise that all eleven e.b. votes signed onto the outcome.

How to Use: The defense in Depue won an (important) battle, but Depue himself lost the war. The Ninth held that, if there were legal or factual errors in the guideline calcs, they didn’t rise to level of plain error. 
  The take-away? Forfeiture and plain error review is better than waiver and getting kicked out of the Ninth -- but a nice record heavily peppered with clear objections is better than both.
For Further Reading: The national defense community generally, and NorCal specifically, has suffered a tremendous loss with the untimely death of San Francisco Public Defender Jeff Adachi.
   The only elected public defender in California, Jeff was a tireless and fearless advocate for his own clients, for resources for his office and for indigent defense, and for reform of the criminal justice system.

Our deepest condolences to his family, and to our PD brothers and sisters: we’ve all lost a good friend and great leader. See SF Chronicle Article here.

Image of “Ralph Wiggum” waver from

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


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