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 The offer was withdrawn.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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US v. Gonzalez-Valencia, No. 19-30222 (2-12-21)(Bennett w/M. Smith & Boggs).  The recent decision, Bastide-Hernandez, holding that jurisdiction vests with the service of a defective immigration Notice to Appear (NTA), has exacted its toll. In Bastide-Hernandez, the majority held that  “the jurisdiction of the immigration court vests upon the filing of an NTA, even one that does not at that time inform the alien of the time, date, and location of the hearing.” 2021 WL 345581, at *2. Here, the defendant received a NTA but without date and time. However, because of Bastide-Hernandez, the district court erred in dismissing the indictment. While lack of notice and time in a NTA can support a due process collateral attack, the defendant still must satisfy 1326(d) requirements. These include exhaustion of administrative remedies, lack of judicial review, and the fundamental unfairness of the proceedings based on lack of date and time.  Given that these issues were raised on appeal, the 9^th finds the defendant cannot satisfy the 1326(d) requirements and is thus foreclosed from raising those issues in a collateral attack. The 9^th does say he can attack on other grounds, but only if he can meet all the requirements of 1326(d). Note: This seems difficult if not impossible. The defendant had appeared at his hearing, where the immigration judge ordered him removed.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/12/19-30222.pdf

 

Case o' The Week: Short rifles, short decision, and shorted on mens rea - Woodberry and Mens Rea for Section 924(c) offenses

Prepare to pucker, on a sour Woodberry. 

United States v. Woodberry, 2021 WL 506091 (9th Cir. Feb. 11, 2021), decision available here.

Players: Decision by Judge Gould, joined by Judge Friedland and WD MO DJ Bough.  

Facts: Woodberry and Johnson, who were armed, robbed a marijuana dispensary. Id. at *1. Police later recovered a short-barreled rifle. Id. at *2.

  The men were charged with, among other things, a Section 924(c)(1) (B)(i) count for using a short-barreled rifle during a crime of violence. Id. (This Section 924(c) count triggered a ten-year mand-mind. Id. at *4).

  Over defense objection, the jury was instructed that it could convict if the gun’s length was under 16 inches (with no requirement that the defendants knew the rifle was short. Id.

  The men were convicted, and appealed.

Issue(s): “Defendants . . . challenge the district court's jury instruction regarding the short-barreled rifle provision in § 924(c)(1) (B)(i). They argue that because the short-barreled rifle provision contains a mens rea requirement, the district court should have instructed the jury to convict only if Defendants knew that the rifle barrel was less than sixteen inches long.” Id. at *4 (footnote omitted) (emphasis in original).

Held: Holding One: “Applying . . . Alleyne, we hold that the short-barrel provision in § 924(c)(1)(B)(i) is an essential element that must be proven to a jury beyond a reasonable doubt.” Id. (footnote omitted) (emphasis added).

Holding Two: “We see no reason to apply the mens rea presumption here, in part because the statute in question does not penalize ‘entirely innocent’ conduct.” Id. at *6 (citation omitted). “At its core, this case calls for no more than a straightforward application of Dean. We hold that § 924(c)(1) (B)(i) requires no showing of mens rea as to the rifle barrel’s length to sustain a conviction.” Id. at *7.

Of Note: Woodberry crams a number of disappointing holdings into a short opinion. The decision’s lead issue is whether robbing a marijuana dispensary is, effectively, a per se impact on interstate commerce that triggers commerce clause jurisdiction for Hobbes Act cases. See id. at *3. 

Extending the Supreme Court’s 2016 Taylor decision, the Ninth holds “(1) that the market for marijuana, including its intrastate aspects, is commerce over which the United States has jurisdiction, and (2) that the commerce element of a Hobbs Act robbery could be established if the robbery could affect commerce over which the United States has jurisdiction.” Id. at *4 (quotations and citations omitted).

A frustrating decision to mull when defending Hobbes Act cases.

How to Use: In this appeal the government kept referring to the short-barreled provision in Section 924(c) as a “sentencing ‘enhancement,’” rather than an element. Id. at *4.

The government was wrong.

Judge Gould takes this opportunity to clarify that, after Alleyne, this factual requirement is an essential element that must be proved to a jury beyond a reasonable doubt. See id.

Sadly, after Woodberry this is an element stripped of any meaningful mens rea requirement. Nonetheless, for future Section 924(c) cases, these are now clearly facts that must be alleged in the indictment, and that the jury must decide beyond a reasonable doubt.                                                   

For Further Reading: President Biden campaigned on criminal justice reform. In a compelling new OpEd, two Federal Defenders describe the many unilateral measures that the Administration should immediately take to deliver on these campaign promises. See Lisa Freeland and David Patton¸ The Biden Administration Can Act on Criminal Justice Act Reform Now, available here.

  Here in NorCal, U.S. Attorney David Anderson (appointed by President Trump), has announced that he will step down by the end of the month. See article here. 

  As main Justice aggressively unwinds Trump policies (and implements the new Biden / Harris priorities), it will be interesting to see how quickly these big changes are felt here in NorCal and the Ninth.  

 

 

 

Image of “Woodberry” from https://uksignshop.co.uk/woodberry

 

 

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

 

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US v. Bastide-Hernandez, No. 19-30006 (2-2-21) (Boggs w/Bennett; dissent w/M. Smith). This concerns the issue of whether a defective Notice to Appear in a removal case divests an immigration court of jurisdiction. The 9^th holds that under Karingithi and Aguilar Fermin, when a NTA is filed, even if it does not state the date and time for the hearing, jurisdiction is triggered. However, it can create a due process violation. Jurisdiction either exists or it doesn’t; it is not tied directly to the “date and time.”

Dissenting, M. Smith argues that Karingithi requires affirmance of the district court’s dismissal. The government failed to comply with regulatory requirements. The regulatory requirements are a prerequisite to jurisdiction being invoked.

Valiant effort by Paul Shelton of the Fed Defenders of E. Wash (Yakima).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/02/19-30006.pdf

Case o' The Week: No Date, No Time, No Place, No Problem - Bastide-Hernandez and Notices to Appear after Karingithi and Fermin

 “In my view, the majority opinion represents a clear rejection of our binding precedent.” 

The Hon. Judge Milan Smith

United States v. Bastide-Hernandez, 2021 WL 345581 (9th Cir. Feb. 2, 2021) (Smith, Milan, J., dissenting), decision available here.

 Players: Decision by visiting Sixth Circuit Judge Boggs, joined by Judge Bennett. 

Compelling dissent by Judge Milan Smith. 

Hard-fought appeal by AFPD Paul Shelton, Federal Defenders of Eastern Washington.  

 Facts: Bastide-Hernandez, a Mexican national, had “numerous” interactions with immigration. Id. at *1. ICE sent him notices to appear (NTA), but they did not include the date or time of the removal hearing. Id. at *1.

The immigration court then faxed a curative Notice of Hearing, but Bastide-Hernandez denied receiving it -- and the government failed to produce evidence that a custodial officer had transmitted it. Id.

There was a removal hearing – but the government failed to introduce a transcript. Id.

Bastide-Hernandez was later prosecuted for illegal re-entry, in violation of 8 USC § 1326, based on this removal. Id. The district court dismissed, holding that the defective notices deprived the immigration court of jurisdiction. Id. 

The government appealed.

 Issue(s): “Karingithi and Aguilar Fermin have created some confusion as to when jurisdiction actually vests, as neither squarely held that jurisdiction vests immediately upon the filing of an NTA, despite the language of the regulations.” Id. at *1.

 Held: “To clarify, we now hold that the regulation means what it says, and controls. The only logical way to interpret and apply Karingithi and Aguilar Fermin is that the jurisdiction of the immigration court vests upon the filing of an NTA, even one that does not at that time inform the alien of the time, date, and location of the hearing. If this were not the case, upon the filing of an NTA jurisdiction would vest, but then would unvest if the NTA lacked required time, date, and location information, only to once again revest if a subsequent curative NOH provided that missing information. Jurisdiction is not so malleable. Jurisdiction, for all its subtle complexities, is not ephemeral. It either exists or it does not. Under Karingithi and Aguilar Fermin, we now hold that when an NTA is filed, jurisdiction exists and vests with the immigration court.” Id.

Of Note: In a thoughtful dissent, Judge Milan Smith explains why the panel got it wrong. See id. at *4 (Smith, J. dissenting). 

Judge Smith (correctly) views Karingithi as controlling, and points out that in that case, the alien actually did later receive notice of the time, date and place of the hearing. Id. at *5. That is a big distinction from Bastide-Hernandez, where the Ninth somehow divines immigration court jurisdiction when deficient notices are all that are in the record. Id. at *2. 

Judge Smith’s dissent is spot on: this decision should go en banc.

 How to Use: Immigration gurus urge us to still bring Pereira challenges. As Judge Smith reports, there is now tension within the Ninth’s own Pereira authority, and e.b. or cert. action may be on the horizon. 

Also, it bears noting that Bastide-Hernandez’s own case was remanded by the panel to evaluate potential due process violations (although without a jurisdictional challenge to NTAs, § 1326(d) can be a bit of a sticky wicket.)  

For Further Reading: A central plank in President Biden’s campaign was criminal justice reform. See generally Biden web page here. 

An interesting new op-ed argues that this promised reform will be impossible until Judge Garland gets a hearing and is confirmed as A.G., and new U.S. Attorneys take over the local reins. See “Delays in Garland hearing, and in replacing U.S. attorneys, put justice reform in jeopardy,” available here. 

Here in NorCal, five contenders are running for the U.S. Attorney spot – presenting a real opportunity for the first Black U.S. Attorney in the district in roughly forty years. See “Who is in the Running for the San Francisco U.S. Attorney Spot, available here.  

 

 

Image of the Honorable Judge Milan Smith from https://www.latimes.com/california/story/2020-02-22/trump-conservative-judges-9th-circuit

 

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

 

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