US v. Bonnett, No. 15-10557 (10-10-17)(per curiam w/Schroeder, Tallman & Whaley).

"The issue of first impression is whether an obstruction of justice enhancement may be founded upon a finding of malingering." (3). The 9th holds "yes." This was for a competency evaluation.  The defendant changed behavior when interacting with staff versus medical personnel, refused to complete tests, and made admissions in phone calls to his wife.  The defendant argued that an obstruction enhancement chills his right to obtain a competency hearing.  The 9th brushes this aside, acknowledging that a defendant has a right to be deemed competent, but does not have a right to pretend he is not competent.  The 9th joins the Third, Fifth, Seventh, and Eleventh Circuits on this issue: "We join the other Circuits in holding that malingering may support an obstruction of justice enhancement pursuant to U.S.S.G. 3C1.1." This is a corollary to a previous precedent that allows obstruction for a refusal to participate in court-ordered testing.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/15-10557.pdf

Kirkpatrick v. Chappell, No. 14-99001 (10-10-17)(Reinhardt w/Wardlaw; dissent by Kozinski).

In a capital petition, the 9th holds that the district court erred in dismissing 20 claims as unexhausted.  The dismissal was based on a letter the petitioner had handwritten and filed with the California Supreme Court asking that his claims be dismissed as he wanted his sentence carried out.  The state court appointed a referee to determine if the waiver was knowing and voluntary.  The referee said "no," but the court declined to follow the recommendation and dismissed.  The federal district court dismissed federal claims for being unexhausted based on AEDPA deference.

The 9th parsed AEDPA's language, concluding that the deference refers to claims adjudicated on merits.  This dismissal was based was not on the merits of claims, but was whether it was knowing and voluntary. The record does not support evidence that this was a knowing and valid waiver.

Dissenting, Kozinski announces that his dissent doesn't matter because California does not have a functioning death penalty.  Kozinski would find sufficient evidence, and bemoans the fact that, to him, the petitioner is "crazy like a fox," and is playing the courts for these many years.  Kozinski continues to lament the promise of the death penalty, castigates some of the litigation as to lethal injection, and concludes that the death penalty is a charade in California.

Congrats to AFPDs Patricia Young and Mark Drozdowski, FPD Cal Central (Los Angeles CHU).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/14-99001.pdf

US v. Slade, No. 16-30150 (10-10-17)(Bea w/McKeown & N. Smith).

 

The 9th vacates a sentence and remands because Washington's second degree assault, 9A.36.021, is not a "crime of violence" under the guidelines.  Applying the categorical approach, the panel holds the statute is not divisible.  The 9th concludes that the Supreme Court's decisions in Deschamps and Mathis overrule prior 9th precedent finding this statute divisible.

Congrats to AFPD Vanessa Pai-Thompson, FPD Wa Western (Seattle).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/16-30150.pdf

US v. Preston, No. 15-10521 (10-17-17)(Berg w/Reinhardt; Kozinski concurring). Note:  This is an Az FPD case.

The 9th reverses convictions for agg sex abuse due to evidentiary errors and prosecutorial misconduct.  The offenses allegedly occurred in 1998, and were only remembered in 2012, 14 years later, when the victim was in trouble with the law and had drug issues.  At trial in 2015, the errors cumulative effect was to render the trial fundamentally unfair.  The evidentiary errors concerned an expert who gave improper expert testimony related to the victim's truthfulness as to the sexual abuse and characteristics of child sexual victims; and FRE 404(b) from an ex-wife about masturbation and fantasies that differed or were not tied to the acts here (oral sex with a 10 year old). It was offered seemingly for intent.   The prosecutor engaged in misconduct by vouching, alluding to defendant's failure to testify and rebut the accusations, and misstatement of the evidence.

Concurring, Kozinski states that in any retrial, the prosecution can try to link the evidence of fantasies and masturbation to another basis for admission, such as sexual arousement by young boys.

Congrats to Edie Cunningham, AFPD, D. Az (Tucson Appeals) and Jay Sagar, Trial AFPD, for the win.

 
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/17/15-10521.pdf

Case o' The Week: "Crazy" Clamor, Obstruction Hammer - Obstruction of Justice, Malingering, and Competency Evals

 Ninth naysays "obstruction" bee in our sentencing bonnet. 

United States v. Bonnett, 2017 WL 4509039 (9th Cir. Oct. 10, 2017), decision available here.

Players: Pur curiam decision by Judges Schroeder, Tallman and DJ Whaley.

Facts: Bonnett was charged with one count of receipt and distribution of child porn. Id. at *1. He was made to undergo a court-ordered pysch eval for competency. Id. The shrink concluded that “Bonnett was feigning incompetency.” Id. After his guilty plea, Bonnett received an increase in his guideline sentence for “obstruction of justice,” based on “malingering.” Id.

Issue(s): “[Bonnett] challenges the two-level adjustment for obstruction of justice pursuant to U.S.S.G. § 3C1.1 . . . .” Id. at *1. “The issue of first impression in this Circuit is whether an obstruction of justice enhancement may be founded upon a finding of malingering.” Id. “[ ] Bonnett contends that permitting an obstruction of justice enhancement on the basis of his performance in a competency evaluation chills his exercise of the right to obtain a competency hearing.” Id.

Held: “We join other Circuits in holding that malingering may support an obstruction of justice enhancement pursuant to U.S.S.G § 3C1.1.” Id. at *2.

Of Note: While disappointing, this outcome is not terribly surprising. Four other circuits have upheld obstruction enhancements in the context of competency evaluations. Id. at *1. More importantly, the Ninth had already held that refusing to participate in a competency evaluation can support an obstruction enhancement. Id. at *2 (citing United States v. Fontenot,14 F.3d 1364, 1372 (9th Cir. 1994)).

  Nonetheless, despite the Ninth’s brief per curiam resolution of this thoroughly hairy issue, the confluence of competency and obstruction raises thorny problems for both defense counsel and shrinks (see below).

How to Use: First, us. Should defense counsel now balk on competency motions, when the possibility of a malingering finding may trigger an obstruction enhancement? The federal competency statute only suggests that defense counsel may make a motion “to determine the mental competency of the defendant.” 18 U.S.C. § 4241(a).

  Admittedly, there are those awkward questions to defense counsel about a defendant’s competency during a Rule 11 plea competency (not to mention the uncomfortable ethical issues arising from pleading out a potentially crazy client). 

  At minimum, if you worry that your client has a Klinger routine going, have a frank talk about Bonnett and the obstruction enhancement (and consider a private defense mental health eval before Court shrinks build that obstruction foundation for the PSR).

                                               

For Further Reading: Second, shrinks. Psychologists and psychiatrists assure our clients that competency evals are protected, and that their talks and tests are just used to determine their ability to understand the charges and assist counsel.

  That now ain’t true – creating a real ethical quandary for mental health professionals.

  For an interesting fret on this ethical dilemma, see Shaheen Darani, Behavior of the Defendant in a Competency-to-Stand-Trial Evaluation Becomes an Issue in Sentencing, Journal of the American Academy of Psychiatry and the Law Online, January 2006, 34(1), 126-128, available here. (“Based on this ruling, is it necessary to inform the defendant that information gathered as part of the evaluation may be used for purposes outside of the competency evaluation? Would it also follow that the defendant should be advised that uncooperativeness or feigning of symptoms could lead to a finding of obstruction of justice and, therefore, a harsher sentence? The challenge in adopting this warning becomes the determination of the level of uncooperativeness that might rise to the level of obstruction of justice.”)

Image of bee in the bonnet from https://ashleeblucas.files.wordpress.com/2012/11/bee-in-your-bonnet.jpg.

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

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Case o' The Week: A Stitch in Twine Saves Nine (from reversing) - Spatig and Mens Rea in "Knowingly" Statutes

  Mens rea, frayed Twine, on Ninth's mind.

 United States v. Spatig, 2017 WL 4018398 (9th Cir. Sept. 13, 2017), decision available here.

Players: Decision by Judge McKeown, joined by Judge Nguyen and visiting 10th  Circuit Judge Murphy.

 Hard fought appeal by AFD Steven Richert, Federal Defenders Services of Idaho.

Facts: Spatig ran a company that ended up with lots of bulk paint and paint-related materials. Id. at *1. When Spatig’s wife became ill he stopped working and decided to store these materials at his Idaho residence (with no EPA permit). Id. County officials found the stuff in 2005 and destroyed much of it. Id.

  However, in 2010, hazardous materials were again found strewn across the property: corroded, rusted, and not stored safely. Id. An EPA team came in, removed over 3,000 containers, and spent almost half a million dollars on the clean-up. Id.

  Spatig was charged with knowingly storing and disposing hazardous waste, without a permit, in violation of 42 USC § 6928(d)(2)(A) (the “Resource Conservation and Recovery Act,” or “RCRA.”) Id.

  The government won an in limine motion to preclude evidence on Spatig’s diminished capacity, arguing the offense was a general-intent crime. Id. Spatig was convicted after trial.

Issue(s): “The key issue on appeal is whether § 6928(d)(2)(A) defines a crime of general or specific intent, as that decision dictates whether Spatig can advance a diminished-capacity defense. We have consistently held that diminished capacity defenses are not available to defendants who are accused of general intent crimes.” Id. at *2 (quotations and citations omitted).

Held: “[W]e affirm because § 6928(d)(2)(A) defines a general-intent crime.” Id. “Because § 6928(d)(2)(A) defines a crime of general intent, the district court did not err in excluding evidence of Spatig’s diminished capacity.” Id. *4.

Of Note: “But wait,” you protest, “what about Twine?” In that 1988 decision, Judge Brunetti looked at a pair of statutes that prohibited knowingly conveying a threat – the same operative verb in the charge facing Spatig. See United States v. Twine, 853 F.2d 676 (9th Cir. 1988). The Court held that those statutes required an “intent to threaten,” and thus required “specific intent.” Id. at 680.

  Judge McKeown is unpersuaded.

  Twine, Judge McKeown concludes, covers offenses that are “akin to ‘classic’ specific-intent crimes,” while the hazardous waste statute in Spatig is “agnostic” as to the defendant’s aim. Id. at 2017 WL 4018398 at *3.

  The Court also takes a swipe at Twine, opining that the Ninth has “softened on the reasoning” of the decision and reporting the circuit split engendered by the case. Id. at *3 & n.2.

  It is a disheartening discussion for those on all sides of the political spectrum who worry about federal prosecutions in a strict liability world, checked only by prosecutorial discretion.   

How to Use: Good Conservatives (well, at least, good Federalists) distrust the regulatory state and worry about the constant erosion of mens rea requirements in federal criminal statutes and regs. As President Trump’s judicial appointees join the district courts and Ninth (and more Justices join the Supreme Court), the time is ripe for a renewed mens rea effort by the federal defense bar.

   More immediately, and despite the discounting of the Spatig panel, note that Twine remains good law. Spatig’s “akin to classic specific-intent” distinction of Twine feels like an awfully fuzzy test. When advocating for specific intent for a “knowingly” statute, brush off your copy of Reading Law, channel Justice Scalia’s originalism vibe, and root about old common law for “classic” specific-intent analogues that are arguably “akin” to offenses in “knowingly” statutes.   

                                        

For Further Reading: “The Supreme Court has long recognized a ‘presumption’ grounded in our common law tradition that a mens rea requirement attaches to ‘each of the statutory elements that criminalize otherwise innocent conduct.’”

  Who penned these wise words?  Then-Judge, now-Justice Gorsuch. See Neil Gorsuch on criminal defendants and the rule of law, available here. 

Image of severed twine from http://photos1.blogger.com/blogger/123/954/1600/rope%20fray%202.1.jpg

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

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Case o' The Week: Ninth Mulls Serious Minor Issue: Jayavarman and Mens Rea for Foreign Child Porn Cases

  You gotta believe.

  (And that'll get you convicted).

 United States v. Jayavarman, 2017 WL 4247402 (9th Cir. Sept. 26, 2017), decision available here.

Players: Decision by Judge Clifton, joined by Judges Graber and M. Smith.  

Facts: Jayavarman visited Cambodia and made videos of himself having sex with a female he believed was a minor. Id. at *2. Evidence at trial(including a disputed birth certificate) suggested that while Jayavarman thought the female was a minor, she may have been an adult when the videos were made. Id. [The jury apparently could not agree on whether the was a minor]. Id. 

  Jayavarman was tried on, among other things, “Count 1B.” That count alleged a violation of 18 USC § 2251(c)(1) and § 2251(e): attempting to persuade a minor, abroad, to produce child porn. Id. Jury instructions for this count did not require that the jury find that the female was actually under the age of eighteen. Id. at *4. 

  Jayavarman was convicted and sentenced to 216 months. Id. at *11.

Issue(s): “Jayavarman [contends] . . . that a jury must find that the victim was actually a minor, as opposed to finding that the defendant believed the victim was a minor, in order to convict a defendant of an attempted violation of 18 U.S.C. § 2251(c).” Id. at *3. 

  “In this case, we consider what happens when a defendant believes that the victim appearing in a depiction is a minor but the victim turns out to be an adult. That defendant cannot be convicted of the completed version of the crime, but can he be convicted of attempt?” Id. at *2.

Held: “We answer that question in the affirmative: a defendant attempts to produce and transport a visual depiction of a minor engaged in sexually explicit conduct when he believes that the victim is a minor, regardless of the victim’s actual age.” Id. at *2.

  “We conclude that a person may be convicted for attempting to commit the crime charged in Count 1B if he believed that the victim was a minor, even if the victim was not in fact a minor. On this attempt theory of the crime, the prosecution did not have to prove that the victim was actually a minor, and the district court correctly instructed the jury accordingly.” Id. at *3.

  “[A] defendant may be convicted of an attempt to violate § 2251(c) if he believes that the victim is a minor, even if the victim turns out to be an adult.” Id. at *5.

Of Note: By way of context, it is settled law that when a defendant personally interacts with a victim and actually produces and tranports child porn, there is no requirement under § 2251(c) for the government to prove that the defendant was aware that the victim was actually a minor. Id. at *4 (though note that there is a “reasonable mistake of age” defense). What makes this particular case different is that it involved attempted production. Id. at *5. Unfortunately, the Ninth’s 2004 decision in United States v. Meek, 366 F.3d 705 (9th Cir. 2004) set a (low) mens rea bar. 

  In Meek, the Ninth upheld an attempted child prostitution conviction under § 2422(b), where the defendant thought he was corresponding with a minor victim, but it was actually dealing with an undercover cop. Id. at *5. The Ninth held that the “simple fact of Meek’s belief [as to the age of the victim] is sufficient as to [the mens rea] element of a § 2422(b) violation.” Id. Judge Clifton finds no basis to distinguish the statute at issue in Meek from the § 2251(c) statute charged in Jayavarman: conviction upheld.

How to Use: In this case, Jayavarman’s conviction was upheld when he attempted to create child porn abroad with a female he believed was a minor – but may have been an adult. What about the reverse scenario? What if a defendant attempts to violate § 2251 with a victim he believes is an adult, but that turns out to be a minor?

  The Ninth expressly dodges this fact pattern: flag this as an issue to be fought another day. Id. at *5 & n.3.

                                               

For Further Reading: Turns out that you, and the Heritage Foundation, agree: the federal criminal code is a trap for the unwary, and needs meaningful mens rea reform. 

   For an interesting piece advocating for Congressional action, see John Malcolm, The Importance of Meaningful Mens Rea Reform, available here. 

Image of Cambodian birth certificates from http://2.bp.blogspot.com/-BOME0vScZuY/UfjfQMU1ucI/AAAAAAAAAgs/lEg58DkQo7s/s1600/Birth+certificates_+Srey+Mao+and+Sam+Nang.JPG .

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

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Rodriguez v. McDonald, No. 12-56594 (9-29-17)(Lasnik w/Pregerson & Friedland). The 9th reverses the district court's denial of petitioner's habeas petition challenging his conviction for second degree murder.  The 9th concludes that a juvenile who invoked his right to a lawyer was clearly denied assistance of counsel.  He was then badgered into confessing a murder.  The recording of the interrogation leaves no doubt. 

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/29/12-56594.pdf

US v. Jayavarman, No. 16-30082 (9-26-17)(Clifton w/Graber & M. Smith). One can be convicted of an attempt to produce child porn outside the US for importation under 18 U.S.C. § 2251(e) even if the "minor" is an adult, despite the fact that the government would have to prove that the minor was a minor for a conviction on the completed offense. In this case, the defendant went to Cambodia, where he filmed himself having sexual relations with a female he claimed was a minor. At trial, and on appeal, he argued that the female was in fact an adult. As a matter of statutory construction, the conviction must be reversed.

The 9th rejects the argument, writing "We conclude that a person may be convicted for attempt to commute the crime charged [2251] if he believes that the victim was a minor, even if the victim was not in fact a minor." The 9th explains the focus is on the defendant's state of mind. In offenses where there is a face to face contact, such as completing the offense, there is no knowledge scientor requirement as the age is a strict liability, although a "mistake of age" defense can be raised. In an attempt, the government does not have to prove the victim is a minor, as what the defendant intended in attempting is key.

The 9th rejects challenges under the First Amendment, sufficiency of the evidence, jury instructions, and mistake of age. The 9th also finds no error in the court admitting evidence despite a 403 objection as it was highly probation and not unduly prejudicial (transcripts of the defendant). The court need not have stated that he read every word, as the defendant argues he must avow under Curtin (pornographic stories); and he need not necessarily read each and every word. The court must know the gist and contents and the 9th was satisfied here the court did. The court did not err in finding that the defendant sufficiently spoke and understood English and did not need a Khmer interpreter.

The 9th dismisses the other conviction of "attempt to aid and abet" travel with intent to engage in illicit sex under 18 U.S.C. § 2243(b). The government concedes that there is no "attempt" offense for this offense.  Under the federal criminal code, there must be a specific "attempt" offense.

The case is remanded for resentencing because of the dismissal. The court had indicated it did a holistic sentence, taking into account both convictions.  The court gets to resentence.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/26/16-30082.pdf

Case o' The Week: Ninth Not Keen on Gray Primer - Hernandez Martinez and the New(ish) Illegal Reentry Guideline

 The Ninth finds a little light, amongst the gray.

United States v. Hernandez Martinez, 2017 WL 4080481 (9th Cir. Sept. 15, 2017), decision available here.

Players: Decision by Judge Ikuta, joined by Judges W. Fletcher and DJ Barker. Nice win for Deputy Federal P.D. James Locklin, Central District of California.

Facts: After pleading guilty to illegal reentry in violation of 8 USC § 1326, Hernandez Martinez received the +8 OL bump at sentencing for having had a “two year or more” felony sentence before he was removed the first time. Id. at *1 (citing USSG § 2L1.2(b)(2)(B) (Nov. 1, 2016), see Guideline here. 

  Actually, he had been convicted a felony and received a 365 day sentence with probation to follow, before removal. Id. After that California conviction, he was deported, reentered, his probation was revoked, and he was then was sentenced to three years. Id.

  In other words:

  Cali felony conviction w/ 365 day sentence => 
  Removal => 
  Reentry => 
  Revocation of Cali probation, and three year sentence.

  
At the federal, § 1326 sentencing, Hernandez objected to the eight offense level guideline increase, because his original Cali felony sentence was under two years before he was first deported. Id. at *2.

  The district court rejected Martinez’s objection and imposed the guideline increase. Id.

Issue(s): “Hernandez Martinez argues that the district court erred in applying this enhancement. Although Hernandez Martinez sustained a felony conviction before he was first ordered deported, he was sentenced to only one year of incarceration before his first deportation order; the sentence was increased to three years of incarceration after he returned to the United States.” Id. at *1.

  “The question presented here is whether the phrase ‘sentence imposed’ includes terms of imprisonment that were imposed after the defendant’s first deportation order when assessing the defendant’s eligibility for the § 2L1.2(b)(2)(B) enhancement.” Id. at *3.

Held: “We conclude that Hernandez Martinez’s conviction did not qualify for the eight-level enhancement under § 2L1.2(b)(2)(B), and we therefore vacate the sentence and remand for sentencing.” Id. at *1.

  “We conclude that when viewed in its historical context, the amended § 2L1.2(b)(2)(B) is best read as carrying forward the Commission’s prior, unambiguous conclusions that a qualifying sentence must be imposed before the defendant’s first deportation or removal.” Id. at *6.

Of Note: The Ninth got it right. The Fifth got it right. See id. at *5. So who got this new guideline wrong? The Office of General Counsel, for the Sentencing Commission. In its 2016 Primer on Immigration Guidelines, the Primer opined that revocation sentences after removal “counted” towards the "sentence" requirement for the offense level bump. See id. at *6, n.2; see also Immigration Primer here, at 24-25.

  “Meh,” sniffs the Ninth: “The Primer expressly disavows the authority to represent the official position of the Commission . . . and its unreasoned interpretation lacks persuasive power.” Id. (internal quotations and citation omitted).

  A handy footnote, when the proclamations of Commission staff run contrary to your argument.

How to Use: Interpreting the guidelines just required old-fashioned, “ordinary statutory interpretation.” Id. at *2. Hernandez-Martinez adds an arrow to that analytical quiver. In essence, Judge Ikuta explains that if the Commission intends a change to the status quo, it must plainly explain that is what it wants. Id. at *5. Language disappearing in an amended guideline, alone, isn’t enough. Id.

  An interesting concept to mull, as Johnson warriors explore the boundaries of the new(ish) Career Offender definitions. See USSG § 4B1.2, Nov. 1, 2016 (available here).  

                                               

For Further Reading: Whither the Sentencing Commission?

  In August 2017, Attorney General Sessions urged the White House to nominate Eastern District of Virginia District Judge Henry “Hang ‘Em High” Hudson as a Sentencing Commissioner. See article here. 

  (That whole guideline “status quo” thing is sounding pretty good . . . )

Image of Nov. 1, 2016 Sentencing Manual from https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/2016GLMCover.jpg

Image of “Hang ‘Em High” Movie poster from http://omstout.com/wp-content/uploads/2013/09/hang-em-high.jpg

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

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