Saturday, July 14, 2018

Case o' The Week: "Discomfited" Will Do - Hernandez and Acceptance of Responsibility After Trial

  Trials aren’t tribulations.
United States v. Albert Hernandez, 2018 WL 3352608 (9th Cir. July 10, 2018), decision available here.

Players: Decision by Judge McKeown, joined by Judge Murguia. Dissent by Judge Rawlinson.
  Admirable win (on this issue) for D. Nev. AFPDs Amy B. Cleary and Alina Shell.

Facts: Hernandez, a coach, had a sexual relationship with a 17-year-old minor, and they exchanged sexually-explicit images. Id. at *1.
  The relationship was discovered and Hernandez was charged with a host of federal crimes. He was convicted after a jury trial. Id. at *2.
  The district court denied acceptance, and sentenced Hernandez to 284 months. Id.

Issue(s): “[Did] the district court . . . increase[ ] Hernandez’s sentence
or with[hold] a reduction for acceptance of responsibility based on Hernandez’s decision to go to trial[?]” Id. at *4.

Held: “[B]ecause the record suggests that the district court penalized Hernandez by increasing his sentence based on his decision to exercise his Sixth Amendment right to go to trial, we issue a limited remand for resentencing.” Id. at *1.
  “[O]ur review of the sentencing transcript leaves us discomfited that the district court penalized Hernandez for his assertion of protected Sixth Amendment rights. The district court emphasized Hernandez’s decision to go to trial five separate times during the sentencing hearing. The court first stated that ‘it would mean something if [Hernandez] took responsibility before the trial.’ The court then repeated that ‘contrition means something when it happens before trial.’ . . . . Still further, the court continued: ‘[W]hat I look for is somebody who feels remorse before the trial, before you put this young girl through the—through the agony of testifying, having to testify to what went on, and then identify pictures of herself, personal pictures. So, I don’t see—I don’t see much remorse there, Mr. Hernandez.’ This comment revealed the court’s dim view of Hernandez’s right ‘to be confronted with the witnesses against him.’ U.S. Const. amend. VI.” Id. at *5.
  “The district court’s statements run headlong into our precedent that a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment.” Id. at *6 (citation omitted).

Of Note: The principled analysis of this issue in Hernandez recognizes the reality of federal court: our clients are almost always forced to plea. The government surely has enough arrows to coerce guilty pleas, without also adding “acceptance of responsibility” to the quiver.
  As Judge McKeown thoughtfully explains, “Although most federal criminal cases result in guilty pleas, the Sixth Amendment right to trial remains an important safeguard to defendants who insist on their innocence. Permitting courts to impose harsher sentences on those few defendants who do go to trial could in practice restrict the exercise of the right to those with unusual risk tolerance—or uncommon courage.” Id. at *6.
  On this issue, Hernandez is a great opinion – use it to fight for the “acceptance” reduction, even after a trial.  

How to Use: Like a liturgy, the district court intoned an assurance that the Section 3553(a) factors had been considered before imposing this whopping sentence. “But reciting this boilerplate statement immediately after chastising Hernandez for going to trial, and without any explanation, does not cure the infirmities in the district court’s justification for the sentence imposed.” Id. at *6.
  Use Hernandez to battle the government’s attempts to use a district court’s vague Section 3553 assurances like sentencing sanitizer.
For Further Reading: Hernandez confirms what we know too well: systemic sentencing penalties have virtually eliminated the constitutional right to a trial.
  For a compelling analysis documenting this problem, with recommendations for reform, see NACDL’s recent report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, available here

Image of “The Trial Penalty” Report from

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


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Friday, July 13, 2018

United States v. Buenrostro, Nos. 16-10499, 17-15453 (Fletcher with Tallman and Morris (Montana)) --- The Ninth Circuit denied relief to a federal prisoner serving a sentence for drug trafficking, holding that he was ineligible for a sentence reduction after his sentence was commuted from a mandatory life sentence to 30 years by President Obama and that the commutation did not allow him to file a second or successive § 2255 motion to raise a claim of ineffective assistance of counsel in connection with plea bargaining. The fact that the original sentence was mandatory because of his prior drug convictions meant that the applicable Guidelines range was not reduced in light of Amendment 782, the drugs minus two amendment. And the commutation order issued by President Obama was not an intervening judgment that allowed him to file a new § 2255 motion under the rule of Magwood v. Patterson, 561 U.S. 320 (2010). 

The decision is here:
On Wednesday the Ninth Circuit (1) affirmed a conviction for bid rigging under the Sherman Act, (2) vacated the death sentence of an Arizona state prisoner and directed the state courts to conduct new penalty-phase hearings, and (3) by a divided vote, vacated the conviction of a person convicted of traveling abroad for the purpose of engaging in illegal sexual acts. 

1. United States v. Joyce, No. 17-10269 (Murphy (CA10) with Paez and Ikuta) --- The Ninth Circuit affirmed a conviction for bid rigging under 15 U.S.C. § 1, the Sherman Act, and held that a scheme to suppress competition by not bidding on certain properties at a public foreclosure auction is a classic bid rigging scheme that is per se illegal, such that the government need not prove the existence of a particular agreement to restrain trade in order to prove a violation of the Sherman Act. 

The decision is here: 


2. White v. Ryan, No. 15-99011 (Nguyen with M. Smith and Murguia) --- A three-judge panel of the Ninth Circuit unanimously reversed the denial of a habeas corpus petition filed by an Arizona death-row prisoner, holding that he received ineffective assistance of counsel at the second penalty phase of his capital proceedings when his lawyer failed to challenge the sole aggravating factor that made him eligible for the death penalty and failed to adequately investigate and present mitigating evidence in that proceeding. The court remanded the case with instructions to grant the writ and conduct new capital sentencing proceedings in state court. 

The prosecution relied on only one aggravating factor to make the petitioner eligible for a death sentence -- that he committed the murder in expectation of pecuniary gain, here, that his girlfriend would collect proceeds from a life insurance policy that covered the victim, her husband. Counsel believed that the state supreme court had upheld this finding in the direct appeal, but that was incorrect; in fact, the basis for holding the second penalty hearing allowed counsel to present new arguments against this aggravating factor. In state postconviction proceedings, the court held that the failure to challenge this aggravating factor was not unreasonable. But the record made clear that counsel had no strategic basis for failing to challenge this aggravating factor, and that the failure was entirely the result of a misunderstanding of the reason for the resentencing hearing and of state law. 

Counsel further did not investigate the petitioner's extensive history of mental illness, which was apparent to every lawyer who had previously handled the petitioner's case. (In federal habeas proceedings, his mental illness led to competency proceedings that were ultimately mooted by the Supreme Court's decision in Ryan v. Valencia Gonzales, 568 U.S. 57 (2013).) Indeed, the petitioner's mental illness was a large part of the basis for holding a second penalty hearing. His history was well documented by the Arizona prison system as well. In finding no ineffective assistance, the state postconviction court reasoned that counsel was not required to gather records of his mental health unless there was some suggestion that they would have mitigating value. But because there was such evidence, the postconviction court could not reasonably have said that it was reasonable for counsel not to gather the records. Counsel's total failure to investigate mental health would have had an affect on the sentencing proceeding. The 12 different types of mental health evidence, considered cumulatively, were plainly relevant to the decision to impose the death penalty -- indeed, on direct appeal from the resentencing, the state supreme court had affirmed the sentence by a divided vote. 

Congratulations to Assistant Federal Public Defender Jennifer Garcia of Phoenix. 

The decision is here: 


3. United States v. Pepe, No. 14-50095 (Nguyen with Kleinfeld; dissent by Thomas) --- A divided panel of the Ninth Circuit vacated convictions for engaging in illicit sexual conduct in foreign places, in violation of 18 U.S.C. § 2423(c). The trial court instructed the jury consistent with United States v. Clark, 435 F.3d 1100 (9th Cir. 2006), which punishes those who travel in foreign commerce and thereafter engage in illicit sexual acts. After Clark, Congress amended the statute to punish those who either travel in foreign commerce or reside temporarily or permanently in foreign commerce and engages in illicit sexual acts. The court held that in light of the subsequent amendment, Clark had been overruled, and so the conviction had to be vacated because the defendant here (who had been living in Cambodia for a long time before he bought sex from several young girls, binding and drugging them in some instances in order to accomplish the sexual acts) may not have engaged in conduct that was punished by the pre-amendment version of the statute. Chief Judge Thomas disagreed that the subsequent amendment to the statute implicitly overruled Clark, and would have affirmed the convictions and 210-year total sentence because the jury instructions were proper under Clark, which was binding at the time of trial here. 

Congratulations to Deputy Federal Public Defender James Locklin of Los Angeles. 

The decision is here:
United States v. Hernandez, No. 13-10428 (McKeown* with Murguia; partial dissent from Rawlinson) --- In a previous round of this appeal from a sentence imposed following a jury trial on child pornography charges, the panel (then with Judge Kozinski on it) remanded the case to the district court for findings about the distribution enhancement. In this appeal following the limited remand, then panel (with Judge McKeown replacing Judge Kozinski, who retired after oral argument) affirmed the distribution enhancement, holding that sharing an image of child pornography with the child depicted in that image constitutes "distribution" under USSG § 2G2.1. The panel remanded the case again for the limited purpose of allowing the district judge to clarify whether he denied the defendant a downward adjustment for acceptance of responsibility because he exercised his right to trial. 

This case involves sexting, which would not ordinarily generate child pornography charges. But the defendant was a girls' softball coach, and the other person in the relationship was a 17-year-old girl who was on the team. They were sharing images of themselves with each other, including naked images of the girl and images of themselves engaged in sexual acts. They were caught when the girl's father saw the images on her phone. The defendant went to trial, lost, and received a 284-month sentence. In the previous stage of the appeal, the panel remanded for findings in light of United States v. Roybal, 737 F.3d 621 (9th Cir. 2013), directing the court to consider whether the upward adjustment for "distribution" under the Guidelines was proper where the images were shared only between these two people. The court held unanimously that it was. 

There is a challenge to the substantive reasonableness of the sentence in this appeal. But the panel did not resolve it, because it first had to resolve a procedural question about the sentencing judge's reasons for denying a downward adjustment for acceptance of responsibility. The judge faulted the defendant for his apparent lack of contrition at sentencing. "I have never had a defendant," he said, " -- there have been one or two maybe -- after being found guilty, who didn't feel contrition.... everybody feels contrition now. Now, when they are looking at spending time in prison, everybody feels remorse for what they did." The judge observed that there was no remorse for "putting the victim through the agony of testifying at trial." And then he said to the defendant, "You decided to roll the dice, and it came up snake eyes. You didn't think she'd testify, and she did. You went -- you wanted to go to trial, so you went to trial. And Probation rightly recommends 327 months for that." That last statement came right before the judge pronounced the sentence. Under these circumstances, the court said, the judge ran "headlong" into the Ninth Circuit precedent that forbade judges from relying on the defendant's decision to exercise his right to trial as a basis for denying a downward adjustment for acceptance of responsibility. The panel remanded the case to give the judge an opportunity to explain that that was not what he was doing. 

Judge Rawlinson dissented from the limited remand. She did not read the defendant's brief as challenging the procedural reasonableness of the sentence (a failure to award the downward adjustment for acceptance of responsibility), but only the substantive reasonableness of the sentence. Under that rubric, she saw no problem with the sentencing judge's statements. "It is apparent that the primary focus of the court's concern was Hernandez's manipulation of the victim and lack of remorse." She would have affirmed the sentence in its entirety. 

Congratulations to Assistant Federal Public Defender Amy Cleary of Las Vegas. 

The decision is here:

Monday, July 09, 2018

United States v. Obendorf, No. 16-30188 (Christen with Gould and Paez) --- The Ninth Circuit affirmed misdemeanor convictions for conspiracy to bait, and for baiting, an area of a farm for the purpose of hunting ducks in violation of the Migratory Bird Treaty Act. The defendant, an Idaho farmer, was sentenced to three years of probation and fined $40,000 following a seven-day jury trial. The court held that because a regulatory exception for hunting over ceretain farmland did not apply to the baiting charges in this case, the jury was properly instructed and as a result any limitation on the scope of cross-examination of government expert witnesses was harmless. 

The defendant's farmland lies underneath the migratory path of certain ducks. During the annual fall harvest, he would usually completely harvest the corn in his fields. But in a certain section of the farm near a pit blind, he would only harvest every other row (or direct his employees to harvest only every other row, hence the conspiracy charge), and leave massive amounts of corn on the ground to attract the ducks that would pass overhead. Inspectors from the federal Fish and Wildlife Service and from the state department of fish and game placed cameras on the defendant's field in order to monitor the activity near the hunting blind. As a result, the defendant was charged with two misdemeanor counts of conspiracy to bait the field, and of baiting the field, in violation of the Migratory Bird Treaty Act. 

At trial, the parties agreed that in order for the government to obtain a conviction, it would have to prove that the regulatory exception that allows hunting over farmland where migratory birds would feed did not apply if the birds were feeding on standing crops that were left behind as part of a normal agricultural practice. In order to prove that this exception did not apply, the government called three expert witnesses from the University of Idaho's agriculture department to testify that the defendant's farming practices in the area of his farm near the hunting blind were not normal. The defendant sought to cross-examine these witnesses in order to get them to offer an opinion that they were normal, but the judge did not allow him to do so. In addition, multiple witnesses testified that the defendant had ordered his employees to plow the area near the hunting blind so as to bait it for the passing ducks. The jury convicted the defendant on both counts after a seven-day trial, and he was sentenced to three years of probation and to pay a fine of $40,000. 

On appeal, the government argued for the first time that the exception for normal agricultural practices did not apply to charges of unlawful baiting. The Ninth Circuit allowed the government to change its theory of the case on appeal, because the change was purely legal and addressing the government's new-found argument would allow the court to clarify the law. Then the court agreed with the government that the exception only excused charges of unlawful hunting (or "taking" of migratory birds), not unlawful baiting. Thus the court held that any error in instructing the jury on the government's trial theory was harmless (because the government's trial theory effectively amounted to the government assuming the burden of proving more than was legally necessary to obtain a conviction). 

The court also held that any error in limiting the defendant's cross-examination of the government's agricultural experts was harmless. Since the exception did not apply to the baiting charges, there was no error in preventing him from eliciting their opinion that his farming practices were normal. And to the extent that cross-examination of these witnesses could have shed light on the defendant's intent, the court held that the testimony from his (possibly disgruntled) employees about his express directives to bait the hunting blind was overwhelming. 

The decision is here:

Sunday, July 08, 2018

Case o' The Week: Conviction, Old, yet Ninth Upholds - Hohag and Conditions of Supervised Release, SORNA

The Hon. Judge Susan P. Graber
Not too old, if SORNA, we’re told.
United States v. Hohag, 2018 WL 3149773(9th Cir. June 28, 2018), decision available here.

Players: Decision by Judge Graber, joined by Judge M. Smith and DJ Hellerstein. 
  Hard-fought appeal by AFPD Francesca Freccero, D. Or. FPD.

Facts: Hohag was convicted of rape of a minor in 1992. Id. at *1. As part of that sentence, he was required to register as a sex offender. Id. 
  He moved to several states without registering, was arrested in Oregon in 2016, charged federally and convicted of failure to register as a sex offender. Id. 
  At sentencing, Hohag explained he had undergone sex offender treatment while incarcerated, and provided a polygraph confirming he was truthful in denying he’d had sexual contact with a minor since his release from supervision in ’02. Id. He was sentenced to time served. 
  The court imposed conditions of supervised release that included participating in a “sex-offense specific assessment” and submitting to polygraph testing “in conjunction with the . . . assessment.” Id.

Issue(s): “Defendant timely appeals, challenging only the two conditions of supervised release that relate to his history of sexual misconduct.” Id. at *2.

Held:Together, T.M. and Johnson illustrate that, when we consider a condition of supervised release meant to address a defendant’s history of sexual misconduct, we look to at least two factors. First, as in every case, we consider the burdensomeness of the condition at issue. An assessment is significantly less burdensome than required treatment. Second, we ask whether the condition is reasonably necessary to accomplish one of the legitimate goals of supervised release. In answering that question in this context, we approach with some skepticism a condition that rests solely on an old sex offense. But when some recent event suggests that a defendant still poses a risk of engaging in sexual misconduct, there exists a greater need for a condition meant to address a defendant’s history of sexual misconduct.” Id. at *3.
  “Because the conditions at issue are not particularly burdensome and because they relate to Defendant’s crime of conviction, we conclude that the district court did not abuse its discretion.Id. at *5.

Of Note: In United States v. T.M., 330 F.3d 1235, 1239–40 (9th Cir. 2003), the Ninth reversed sex-offender treatment conditions imposed on the back of an old sex-offense prior.
  In United States v. Johnson, 697 F.3d 1249, 1251 (9th Cir. 2012), the Ninth upheld a sex-offender assessment condition despite equally old priors.
  In the present case, Hohag, Judge Graber concedes (in a considerable understatement) that these cases arrive at “seemingly conflicting conclusions.” Id. at *3. The analysis in Hohag struggles to explain the distinctions, and concludes that the conditions here – an assessment – based on a “related” sex offense (a SORNA crime), support the conditions. Id. at *4-*5. It is a troubling outcome, assuring us that a sexual-assessment is a “minimal burden on [Hohag’s] liberty,” and that polygraph testing is a “relatively uninstrusive means of evaluating a defendant’s risk of engaging in sexual misconduct.” Id. at *3.
  Like it or no, Hohag joins T.M. and Johnson in the Ninth’s – complicated – guidance on supervised release conditions for sex offenders.

How to Use: A (small) hook in Hohag is the fact that the condition imposed was just an assessment – it was not the more intrusive sex-offender treatment. Id. at *4. Judge Graber relies on that heavily on that distinction while upholding the condition. Id.
  Push back when Probation wants a condition of treatment on an old offense: that falls closer to the prohibited conditions in T.M., in the spectrum laid out by Judge Graber in Hohag.  
For Further Reading: The defense argued that the Sentencing Commission did not recommend sex offender assessments as a condition of supervised release for SORNA convictions (like the one underlying Hohag). Id. at *4. “Meh,” sniffed the Ninth – Guideline conditions are “only advisory.” Id.
   Like the Ninth, the Second Circuit also seems increasingly indifferent to the Commissions’ wisdom. For an interesting piece on that trend, see Substantive Reasonableness Review Finally Getting Teeth in the Second Circuit, available here.

Image of the Honorable Judge Susan P. Graber from

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


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Friday, July 06, 2018

Tamplin v. Muniz, No. 16-15832 (Fletcher with Kronstadt (CD Cal); dissent by Hawkins) --- A divided panel of the Ninth Circuit reversed the denial of a California state prisoner's § 2254 petition, holding that the trial court did not honor his right to self-representation under Faretta v. California, 422 U.S. 806 (1975), and that the state courts did not reasonably reject this claim. Judge Hawkins would have affirmed because of the AEDPA limitation on relief, but might have reversed if this case were on direct review. The petitioner was convicted in a California state court of being a felon in possession of a firearm and sentenced under California's three-strikes law to 45 years to life. On direct appeal, the conviction was affirmed but the sentence was reduced to 25 years to life. 

The petitioner was initially assigned a public defender, but was then allowed to represent himself. He asked for "assistant counsel," but the trial judge denied that request. He represented himself for about four months until, about a month before trial, he retained counsel. But retained counsel never ultimately entered a formal appearance in the case because he was suspended by the state bar two days after the petitioner retained him. In response to this disciplinary action, the trial judge asked the petitioner how he wanted to proceed; the petitioner said he wanted to continue to represent himself. The trial judge tried to clarify whether the petitioner wanted the assistance of counsel in light of his attempt to retain counsel, and after a discussion, the petitioner said, "I'm representing me now." Six days before trial, the petitioner said he was not ready to proceed because he wanted to file more pretrial motions. Under the circumstances, including the impending trial date, the trial judge forced the petitioner to accept the services of the same public defender that he had earlier discharged. Once counsel was reappointed, the trial judge put off the trial for six months to allow counsel to prepare.  

On direct appeal, appointed counsel did not raise a Faretta claim. In state habeas proceedings, the superior court denied the claim that appellate counsel was ineffective for failing to raise the Faretta claim because it ruled that the Faretta claim lacked merit. The petitioner's request to represent himself was not unequivocal, the state habeas court said, because he tried to retain counsel. And in any event, the state habeas court said, the petitioner waived his Faretta right by acquiescing in the trial judge's decision to reappoint the public defender during the six-month continuance that was ultimately granted. The state appellate courts denied habeas relief without comment. The federal district court denied a habeas petition as well. 

The majority held that the reasons that the state habeas court advanced for denying the Faretta claim were contrary to clearly established law. The petitioner's request for self-representation was unequivocal, the majority said, identifying seven discrete requests during a critical pretrial hearing and two direct accusations from the petitioner that the trial judge was violating his rights by forcing him to accept the assistance of counsel. The trial judge's reliance on the petitioner's lack of legal knowledge or skill was irrelevant under Faretta, because it was clear that the petitioner understood the "dangers and disadvantages" of representing himself. And because the petitioner's request was unequivocal, his supposed acquiescence in the trial judge's decision to force him to accept the public defender was also immaterial under Faretta. The state habeas court's reliance on a published decision of the California Court of Appeal was misplaced, because the opinion read Faretta out of context.  

On appeal to the Ninth Circuit, the state argued that the state court's rejection of the Faretta claim was reasonable because the petitioner did not timely request to represent himself. The level of deference required under AEDPA on this argument was the subject of the dispute between the Ninth Circuit judges. The majority said that no deference was required because the last reasoned state court decision did not address it; Judge Hawkins in dissent reasoned that the state habeas court's decision was not overall unreasonable because the petitioner tried to hire counsel shortly before the trial was scheduled to begin (that is, before the judge gave the public defender that six-month continuance), and that the fact that this issue was debatable on this record required AEDPA deference. On de novo review, the majority concluded that the petitioner timely invoked his right to self-representation because he did so shortly after the case was filed, the fact that the lawyer he hired was quickly suspended from practice meant that he never truly retained counsel, and that under the circumstances even a "renewed" request for self-representation made two weeks before trial was timely. 

Because the state habeas court did not review the deficient-performance prong of the petitioner's appellate IAC claim at all, the Ninth Circuit reviewed it de novo. It found that appellate counsel's failure to raise the Faretta issue on direct appeal was deficient in light of appellate counsel's declaration that he did not correctly understand how the petitioner had tried to invoke his Faretta right throughout the pretrial proceedings. Accordingly, the majority credited appellate counsel's assertion that there was no tactical reason for failing to raise the Faretta issue on direct appeal. 

The decision is here:

Saturday, June 30, 2018

Case o' The Week: Government's Pleas Fall on Skeptical Ninth Ears - Armando Vera and Use of Co-D Plea Agreements at Sentencing

 If at first you don’t succeed,
 Find a co-d, make him plead,
 Use co-D’s plea to prove your fact,
 Then up to the Ninth, who sends you back.

United States v. Armando Vera, 2018 WL 3097956 (9th Cir. June 25, 2018), decision available here.

Players: Decision by Judge Owens, joined by Judges Wardlaw and Nguyen.  

Facts: Brothers Salvador and Armando Vera were convicted of a drug-trafficking conspiracy after trial. Id. at *1. In a welcome holding rejecting cop “interpretations” of recorded calls, the Ninth’s first opinion vacated the drug quantity findings and the defendant’s sentences. See United States v. Salvador Vera, 770 F.3d 1232 (9th Cir. 2014), see also blog entry here. 
  On round two of sentencing, the government decided not to try to fix the cops’ methodology, or actually call the co-conspirators to establish drug amounts. Armando Vera, 2018 WL 3097956, at *2. Instead, the government “relied heavily” on the co-conspirators’ plea agreements to pin drug amounts on the Vera brothers. Id.
   Over objection, the district court found these agreements reliable, declarations against interest, and – primarily relying on the facts from the plea agreements – re-sentenced one brother to 27 years, and the second to 14 years. Id.

Issue(s): “At sentencing, the Confrontation Clause does not apply, . . . and district courts have wide latitude when deciding upon which information to rely, . . . But that information must still have “sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a).” Id. at *3.

Held: “Here, the district court relied heavily upon the co-conspirator plea agreements to determine the drug quantities attributable to the Veras, concluding that the plea agreements were reliable statements against interest under Federal Rule of Evidence 804(b)(3). This was reversible error.” Id.
  “Of course, “hearsay is admissible at sentencing, so long as it is accompanied by some minimal indicia of reliability.” Littlesun, 444 F.3d at 1200 (internal quotation marks omitted). But here, the district court’s primary rationale for relying upon the plea agreements —Rule 804(b)(3)—was incorrect. At sentencing, district courts may not rely solely on Rule 804(b)(3) to use non-self-inculpatory statements in a co-conspirator’s plea agreement to determine a defendant’s drug-quantity liability.” Id. at *4.
  “Vacated and remanded.” Id. at *6.

Of Note: Can a complaint affidavit be used to support the government’s facts at sentencing? Weird, but the government stretched for that argument here, urging in a 28(j) letter that complaint affidavits supported the drug amount findings in Vera. Id. at *5 & n.4.
  The panel “assumes without deciding” that a complaint affidavit can be used at sentencing, but holds the reliability of the government’s showing still falls short. Id.
  A good ultimate holding by the panel, but this complaint-tactic remains a government scheme that merits close watching – it seems terrifically unreliable, litigation-driven, hearsay evidence.

How to Use: AUSAs inexplicably lard-up plea agreements with facts inculpating co-defendants – even when the pleading defendant isn’t snitching. Of course, a pleading defendant trying to “curry favor” with the government, id. at *3, doesn’t really care if facts inculpating co-Ds are actually true.
  Judge Owns understands this reality: his pragmatic analysis works through the dubious reliability of the government’s rambling factual bases. As he explains, in Vera “Neither the district court nor the government cited any authority suggesting that a factual basis in a plea agreement pointing the finger at someone else qualifies as Rule 804(b)(3) material, and there is ample case law . . .  suggesting otherwise.” Id. at *3.
  Use Armando Vera to brush back on the novels AUSAs jam into Paragraph 2 (the factual bases) of our plea agreements. As the Vera opinion illustrates, those lengthy statements nailing co-Ds aren't particularly reliable, have little value in litigation, earn our clients unwarranted snitch jackets, and seriously complicate efforts to resolve cases. 
For Further Reading: The conduct in this case was in 2008. Two sentencing remands and a decade later, Vera I and II don’t say much for the reliability of our current federal sentencing system. 
  What say we use the Federal Rules of Evidence at sentencing, to increase reliability? For an interesting piece making that pitch, see Deborah Young, Fact-Finding at Federal Sentencing: Why the Guidelines Should Meet the Rules, available here 

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


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Thursday, June 28, 2018

US v. Hohag, No. 17-30049 (6-28-18)(Graber w/M. Smith & Hellerstein).

The 9th affirms imposition of SR conditions related to a SORNA conviction. The conditions imposed at issue are (1) participation in a sex offense specific assessment; and (2) polygraph testing at the discretion of the probation officer in conjunction with the assessment. The defendant argued that the conditions were unnecessary and an imposition because his sex offense was 27 years ago. He had undergone treatment, and in 2002, he submitted a polygraph showing he had no sexual contacts with minors.

The test for imposition of conditions, especially in sex cases, is whether the conditions are (1) burdensome; and (2) whether the condition is reasonably related to SR. The leading cases for sex offender conditions are Johnson, 697 F.3d 1249 (9th Cir 2012) and US v. T.M., 330 F. 3d 1235 (9th Cir 2003).

The 9th affirmed here because the conditions were related to the present conviction (SORNA) and were not a burdensome imposition.  The conditions are an assessment and possible testing. The court weighed and balanced. The 9th found this matter was closer to Johnson, where sex offender assessment was imposed after two sex offenses; both old, but one involving weapons, as was Johnson’s present offense. In T.M., the conditions were deemed too burdensome and stringent for an old sex offense, with a history of continued sex offender treatment, and not related to the present offense. Here, the present SORNA offense is given great weight.

The decision is here: