Monday, January 30, 2006

US v. Clark, No. 04-30249 (1-26-06). In a case of first impression, the 9th makes sure that Congress's constitutional reach is the same as its regulatory grasp of foreign commercial sex crimes under the Constitution's "Foreign Commerce Clause." The defendant here was a 71 year old veteran who traveled to Cambodia and caught having sex for money with two minor boys. The 9th (McKeown and Hug) held in an issue of first impressionunder the PROTECT ACT that the statute's requirements of (1) travel in foreign commerce; and (2) participation in a commercial transaction while abroad satisfies the Constitution's foreign commerce to a "constitutionally adequate degree." The 9th focused on his explicit foreign travel and then the commercial illicit sex act two months after. In dissent, Ferguson cautions that "The Constitution cannot be interpreted according to the principle that the ends justifies the means. The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Constitution to address it." Indeed, Ferguson is alarmed at the expansiveness of the opinion's test, and the abandonment of the channels of commerce analysis that is sued for domestic cases. Although this case is limited to commercial sex crimes, the PROTECT ACT also involves noncommercial sex crimes. Are these acts sex acts constitutionally unprotected? One can also envision other acts (abortion in a post-Roe world?) that may be involved.

The 9th commended AFPD Michael Filipovic of W.D. Wa. (Seattle) for his "excellent and comprehensive briefing of this matter."

Friday, January 27, 2006

Case o' The Week: No Clark Bar to Foreign Commerce Clause Jx

An international flight -- without intent to commit a crime -- and a commercial sex act is enough to create Foreign Commerce Clause jurisdiction, says the Ninth in United States v. Michael Clark, __ F.3d __, CA 04-30249, Slip. Op. 999 (9th Cir. Jan. 26, 2006), available here. A fascinating, if disapponting, case of first impression, with a thoughtful and compelling dissent by Judge Ferguson -- who doesn't buy this very broad view of federal power.

Players: AFPD Michael Filipovic of Seattle, WA who submitted “excellent and comprehensive briefing on this novel issue.” Slip. Op. at 1002.

Facts: Clark is a 71-year old vet who traveled to Cambodia and was caught having sex for money with two minor boys. Id. at 1005. He raised a host of legal challenges on appeal: the centerpiece was whether Congress had the power to regulate foreign commercial sex crimes under the constitution’s “Foreign Commerce Clause.” Id.

Issue(s): “At issue is whether Congress exceeded its authority to regulate Commerce with foreign Nations . . . in enacting a statute that makes it a felony for any U.S. citizen who travels in foreign commerce, i.e. to a foreign country, to then engage in an illegal commercial sex act with a minor.” Id. at 1003 (quotations and internal citations omitted).

Held: “We hold that Congress acted within the bounds of its constitutional authority.” Id. [The statute’s] combination of requiring travel in foreign commerce, coupled with engagement in a commercial transaction while abroad, implicates foreign commerce to a constitutionally adequate degree.” Id. at 1024. “The combination of Clark’s travel in foreign commerce and his conduct of an illicit commercial sex act in Cambodia shortly thereafter puts the statute squarely within Congress’s Foreign Commerce Clause authority.” Id. at 1027.

Of Note: This is an intriguing and complex case that will be the subject of many law review articles. The majority (McKeown and Hug) effectively abandon the traditional “channels of commerce” approach used for domestic Commerce Clause analysis – a point heavily criticized in a compelling Ferguson dissent. Id. at 1029. It also uses a “new” “rational basis” approach to Commerce Clause analysis. Id. at 1029 (“The rational nexus requirement is met to a constitutionally sufficient degree.”) Again, Ferguson persuasively questions the application of that rule. Although the new Supreme Court will like this outcome, as an important case of first impression – with novel analysis – this opinion seems en banc and/or cert. worthy.

How to Use: Undersigned has spoken to a sex-crimes AUSA who prosecutes these cases nationally: she is delighted with Clark and looks forward to bringing many new cases under the PROTECT Act. Attorneys near major international hubs – LAX, SFO – should read Clark carefully. There are several unaddressed issues in the case. First, the opinion doesn’t resolve how far "downstream" the statute reaches. Id. at 1013. Clark was caught two months after his international travel, but what if the crime was two years, or two decades, after the trip? (As an aside, it sweeps in the most minimal "commercial" contact. $7.00 was involved in this case. Ferguson worries that a US citizen merely eating lunch in France may be caught in the Foreign Commerce clause).

Second, the case is limited to commercial sex crimes. Id. at 1017 & n. 16. Unresolved is whether the Foreign Commerce clause extends to non-commercial sex crimes, which are also prohibited by the PROTECT act.

For Further Reading: Judge Warren Ferguson is one of the old Lions of the Left in the Ninth. Appointed by Carter in 1979, he took senior status in 1986. See article here. Now 85 years old, Judge Ferguson wears his “Liberal” views on his sleeve, god bless him: he advertises for clerks with a “commitment to social justice.” See article here. His steadfast protection of Constitutional rights – despite political pressures – is well-summarized by a notable summary in his Clark dissent: “The Constitution cannot be interpreted according to the principle that the end justifies the means. The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Constitution to address it.” Slip Op. at 1029.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at

Tuesday, January 24, 2006

US v. Serna, No. 04-10597 (1-23-06). The 9th holds that possession of an assault weapon by a felon is NOT a "crime of violence." The 9th (Kozinski) had a weapon that arguably fell between regular firearms possession of which were not crimes of violence under the Guidelines and bad firearms (silences, sawed off shotguns) possession of which were crimes of violence. The 9th acknowledged that almost anything could be used violently (nail-clippers was one cited example), and that the firearms, although lethal and dangerous, are not by themselves inherently violent as defined under the Guidelines (risk or substantial risk of death or injury). The fact that assault weapons are no longer banned, along with Congress's indifference to assault weapons all over the place, convinced the 9th that the weapon in question here was more like the nonviolent firearms. Vacated and remanded.

Congrats to FPD Quin Denvir for the win. Quin has since retired, so it is a fitting last hurrah, or maybe a fitting salvo.

Young v. Runnels, No. 03-16859 (1-23-06). The 9th deals with whether a state lawyer subsequently disbarred after representation of petitioner is per se ineffective. The lawyer here was facing disciplinary proceedings for failure to communicate with clients, moral turpitude, dishonesty, and other irregularities. She also filled a law suit against the DA and others alleging that they were part of a pedophile ring. The lawsuit was deemed baseless. The petitioner argued that the framework for analysis was the Cronic precedent of essentially not having counsel (some acts so egregious that it was per se IAC). The state argued that Strickland applied. The 9th looked at Supreme Court precedence and concluded that Strickland bound the court. There was no prejudice here from the lawyer's representation. Nonetheless, Noonan, concurring, ruefully lamented how strange it was that the Court could conclude that a "fully licensed lawyer with her head full of fantasies and 'with complete lack of insight into the wrongfulness of her actions' was counsel enough to satisfy the Sixth Amendment!". The 9th upheld the district court's findings of no IAC.

Sunday, January 22, 2006

Case o' The Week: Gouldon Delicious -Two Bites of the Sentencing Apple in Cantrell

A two-step process for Booker sentence review gives the defense two bites of the appellate apple. United States v. Cantrell, __ F.3d __, C.A. 03-30562, Slip. Op. at 675 (9th Cir. Jan. 13, 2006), available here.

Players: Judge Gould writes for the Court.

Facts: Several co-defendants are convicted in a meth and gun conspiracy. Slip. op. at 682. Many of them raise only guideline challenges to the sentencing, lead defendant Cantrell raises Booker error. The convictions are sustained in a separate opinion.

Issue(s): How should appellate courts evaluate guideline error, and Booker error?

Held: “Booker’s mandate that appellate courts should review sentences for “reasonableness” . . . applies only to our review of the ultimate sentence: after Booker we continue to review the district court’s interpretation of the Sentencing Guidelines de novo, the district court’s application of the Sentencing Guidelines to the facts of a case for abuse of discretion, and the district court’s factual findings for clear error.” Id. at 691 (internal quotations and citations omitted). “[W]e hold that a material error by the district court is grounds for resentencing, just as it was before Booker.” Id. at 694. “[T]he new reasonable standard of review established in Booker comes into play only if there was no material error in the district court’s calculation of the appropriate Guidelines range.” id.

Of Note: Compare Cantrell to two other very recent Booker decisions: United States v. Menyweather, (see blog here) and United States v. Guerrero-Velasquez, __ F.3d. __, No. 05-30066 (9th Cir. Jan. 19, 2006) (see blog here). In Menyweather – like Cantrell – the Ninth looked first to the guidelines and then to Booker. The Menyweather Court gave broad deference to the district court’s Booker determination. In Guerrero-Velasquez (a recent Bybee decision), Footnote One of the opinion oddly opines – in dicta – “We also note that, on appellate review, a sentence suggested by the guidelines is presumptively reasonable . . . .”

From where did Guerrero-Velasquez’s dicta spring? As noted above, Cantrell clearly lays out a two-step guideline/Booker analysis. Cantrell says nothing about “presumptively reasonable” guidelines – to the contrary, it warns “we do not suggest that district courts are bound to sentence within the applicable Guideline ranges when sentencing, because the Guidelines are now advisory.” Id. at 692. Menyweather says anything but the guidelines being presumptively reasonable; instead, the Court there went beyond a mere guideline review to engage in the Booker analysis. Either Guerrero-Velasquez’s Footnote One is a bit of erroneous dicta that should be removed, or signals a fairly serious sentencing battle brewing in the Ninth.

How to Use: As sentencing guru Jon Sands noted in his blog entry, Cantrell gives us two bites at the apple. Guideline error? Reversed. Booker-unreasonable? Reversed. Query, though, if the “reasonableness” of a Booker sentence bears on the “materiality” (and hence, reversibility) of a guideline error. This premise could cut both ways . . . a district court that says it would impose a Booker sentence despite a questionable guideline interpretation may have covered itself from challenge by either the government or the defense. (This is, in a way, what happened in Menyweather).

Another angle is to bring a constitutional challenge to the guidelines based on the latest dicta in Footnote One of Guerrero-Velasquez. If the guidelines are “presumptively reasonable” they’ve strayed out of “advisory” policy and into the realm of rules. Too much deference to the guidelines’ dictates make them effectively mandatory: a Booker faux pas.

For Further Reading: A Booker lull after Ameline has been broken of late with a series of Ninth Circuit decisions on sentencing – Plouffe is another recent case. See Professor Berman’s blog entry. Notably, we Ninth bloggers are not the only ones taken aback at Judge Bybee’s “new rule”: Professor Berman labels it a “notable (and sneaky?) footnote.” See commentary here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at

Friday, January 20, 2006

Kenna v. US District Court, No. 05-73467 (1-20-06). This is an important case regarding sentencing and a victim's right to allocute. This comes up on mandamus, and involves the right of a victim to be reasonably heard at a sentencing under the Crime Victims' Right Act (CVA). Somewhat surprisingly, there has been no other appellate decision on the extent of a victim's right to be heard. In this case, which involved a multi-million dollar swindle and fraud, victims were heard at the codefendant's (the father's) sentencing three months earlier than the present defendant's. At this present defendant's (Zvi Leichner) sentencing, the court stated that it had heard all it needed to hear from the victims, that he understood the loss and devastation, and took it into account. The court sentenced the defendant to 135 months (the father got 240). This mandamus followed. (The representation was star-studded, with Viet Dinh of Hogan and Hartson representing Senators Kyl and Feinstein , and Steve Twist, of a national Victim's Rights group, weighing in).
The 9th (Kozinski) holds that the CVA intended to give victim's the right to speak. The argument was that the statute read that the victim had a right to be heard, which meant the chance to convey views in written manner. Two district courts in other circuits had split on the issue. The 9th examined the language, the definition of" heard" (it has both possible meanings), legislative history, intent, and came down on the interpretation that the CVA intended to give victim's a right to actually speak to the court. The 9th therefore granted the writ, and, puzzling over the remedy, ordered that the district court reconsider whether the sentencing of the defendant be reopened. The 9th cautioned that a reopening is the only way to vindicate the victim's right to be heard, but also that such a reopening could well violate due process given that the defendant has not been heard in this matter, and has in fact been sentenced. The hot potato of remedy is back to the district court, and this panel retains jurisdiction.

In a concurrence, Judge Friedman, sitting by designation, cautioned that the holding swept too broadly in giving rights to victims. He would give greater discretion to the court. Judge Friedman wondered, for example, whether such a right has to be absolute, and for all victims. If the father had been sentenced that day, and an hour earlier, would the court have to permit statements again. Moreover, what if there were numerous repetitive statements. Judge Friedman believes that 'reasonably heard" means that a court could impose reasonable limitations. This decision should be limited to only the named victim.
Some issues and footnotes to this decision.

1. Senator Kyl pushed for the CVA. He also introduced SPA legislation this term that would eviscerate habeas and promoted the split of the 9th Circuit.
2. Judge Kozinski wrote at the beginning of the opinion that "The criminal justice system has long functioned on the assumption that crime victims should behave like good Victorian children--seen but not heard." (P. 3). I think that rhetoric got the better of the judge. Victims in my experience have alwayshad the appropriate respect and empathy of the federal criminal justice system. Prosecutors, judges, defense counsel, probation and other court personnel have always treated victims with the dignity and respect called for. There may be times that accounts need to be tested and challenged, but victims in federal prosecutions have long been afforded opportunities to express their views.
3. Judge Kozinski cited Robert Bolt's "A Man for All Seasons, which is a drama about Sir Thomas More's trial for treason and martyrdom for refusing to accept Henry VIII's declaration of supremacy over the Church. Think national security. Judge Kozinski cites it for the maxim that silence connotes assent. The whole thrust of the play, if memory serves, was that the law takes an opposite view, especially in matters of life and liberty. Judge Kozinski stating that the fact that no one in the Senate registered disagreement with certain Senators' stated position meant a consensus seems debatable. Moreover, it does a disservice to the play. Since, however, Judge Kozinski is familiar with the work, it may be useful for defense litigants to bring to his attention the noted exchange where Sir Thomas, debates with his fanatical prosecutorial Puritan son-in-law about legalities:

Sir Thomas: "The law, Roper, the law. I know what is legal not what is right. And I'll stick to what is legal."
Roper: "So now you'd give the Devil the benefit of law?"
Sir Thomas: "Yes. What would you do? Cut a great road through the law to get after the Devil?"
Roper: "I'd cut down every law in England to do that!"
Sir Thomas: "Oh? And when the last law was down and the Devil turned round on you, where would you hide, Roper, the laws all being flat."

This exchange has some relevance.

Thursday, January 19, 2006

US v. Guerrero-Velasquez, No. 05-30066 (1-19-06). This is a disturbing case, especially with a gratuitous footnote regarding the "reasonableness of a guideline sentence." First, this case came up on a gov't appeal. The defendant in a 1326 reentry case had a second degree Washington burglary. The gov't argued this triggered a 16 level enhancement. The court applied Taylor to find that second degree burglary was not a crime of violence under state law, and conducting a Shepard modified approach, concluded that the gov't failed to present sufficient evidence to prove that it was a crime of violence. Hell hath no fury like the gov't scorned, and so this appeal followed. The 9th chastised the district court for not considering defendant's signed plea agreement in the state court, where the factual basis had him admitting to entering a residence. The guilty plea admitted the facts in the information. Defendant tried to argue that it was an Alford plea, and that the defendant maintain innocence. The 9th said it didn't matter: an admission in a plea agreement trumps any maintenance of innocence. The sentence is vacated and remanded under Ameline.

This seems pretty straight-forward. Why, then, did the 9th (Bybee) drop a footnote with some dicta that could be misinterpreted. The note correctly states that the guidelines are "an important aid" for courts seeking an appropriate sentence and help "to maintain uniformity in sentencing throughout the country." It then follows, as Judge Bybee writes, that it is appropriate to consider whether the guidelines were correctly interpreted and applied. E.g. Cantrell. Judge Bybee then opines, without authority, that: "We also note that, on appellate review, a sentence suggested by the guidelines is presumptively reasonable." Whoa! That sentence is dicta as it is wholly unnecessary for the holding. See US v. Johnson, 256 F.3d 895 (9th Cir. 2001)(en banc)(discussions of what is and is not dicta). This comment has no bearing because: (a) the issue of reasonableness on review was not necessary for the holding or analysis because of Ameline; (b) the reasonableness of this sentence was not a future issue because of this sentence's vacation and because the guideline was erroneously miscalculated; and (c) the statement is wrong in light of US v. Cantrell, No. 03-30562 at 692-94 (1-13-06)(discussing review procedure and stating that guidelines but one 3553 factor). Cantrell emphasizes that a reasonableness review considers "the overall sentence in light of all the 18 USC 3553(a) factors, including the applicable Guideline range." (694). Cantrell's note 5 stresses that the reasonableness is in light of all the 3553 factors. There is no statement in Cantrell that a guideline sentence is presumptively reasonable; a first among equal 3553 factors. Again, Judge Bybee cites no case or authority for the ending note 1 sentence, nor does he engage in any analysis (see the approaches in Wilson and Ruman). A presumptive reasonableness standard comes awfully close to a presumptive guideline that tortures the meaning of Booker I.

Wednesday, January 18, 2006

Allen v. Ornoski, No. 06-99001 (1-15-06), Petitioner was on death row since 1982, and in prison far longer than that. He raised Lackey claims, asserting in a successor petition that the horrific conditions in prison, plus his age and physical infirmity, should be a grounds for relief. He was legally blind, and had assorted infirmities, including having suffered heart attacks. His claims on a successor petition were unavailing, and the 9th refuses to grant a COA much less relief. Petitioner was executed on January 17th. By the way, when he had his heart attack four months ago, he requested not to be resuscitated. The prison authorities refused, citing sanctity of life.

US v. Plouffe, No. 05-30045 (1-18-06). This is a reasonableness challenge. The defendant received a 71 month sentence for assault resulting in serious bodily injury. His codefendant got a 37 month sentence. The defendant's sentence was at the top of the range. The 9th reviewed the sentence and found it reasonable. Booker doesn't mean a jettisoning of the guidelines, and for the reasons stated, the sentence using the guidelines as a factor was reasonable. The 9th emphasizes, which is good, that the codefendant's sentence of less than half was a result of the individualizing of the sentence, and the examination of various sentencing factors. The codefendant's criminal was "different". The 9th stated that flexibility in sentencing was key. Thus, this opinion's stressing of flexibility and individual examination is good for the defense, although not availing for the defendant here.

Tuesday, January 17, 2006

US v. Allen, No. 05-50078 (1-12-06). The 9th looks at the color of money, and remands. Actually, this is a counterfeiting case. The defendant passed a number of counterfeit $100 bills (he was celebrating Ben Franklin's contributions to this country). The plea had a recommended guideline calculation that had a +2 bump for distinctive paper, but none for manufacturing. Well, the ever vigilant probation officer in the PSR gave such a bump because of supposed printing press. The court ordered the prosecutor to call the agent, and the prosecutor, although stating she standing by the plea, was forced to ask questions. The court listened to the answers and gave the adjustment for manufacturing. Defense counsel argued that adjustment didn't occur because of note 4 of 2B5.1, which does not apply the adjustment if the bills were so obviously counterfeit that they would be unlikely to be accepted. The court failed to make a ruling. This led the 9th to reverse and remand. The note doesn't distinguish between possession and manufacturing, and would apply if the bills were obviously false. The 9th also chided the court for making the prosecutor call the agent and question him. The 9th held that the prosecutor stood by the recommendation, and asked neutral questions. The better practice, stressed the 9th, in such situations, is for the court to ask the questions.

US v. Cantrell, No. 03-30562 (1-13-06). This is a multi-defendant drug case. the convictions were dealt with in a memorandum; the sentencing issues are dealt with in this opinion. In this case, all the defendants save one did not avail themselves of Booker/Ameline, choosing instead to argue on appeal that the guidelines calculations were wrong, but not asking or demanding an Ameline remand. The 9th takes the opportunity to discuss the role of the guidelines as one of the 3553 factors, and their importance in achieving a correct sentence. The 9th stakes out the position here that it will review the Guidelines for incorrect application and if there was prejudicial error, the sentence will be remanded. The 9th emphasizes that courts are not bound by the guidelines, but must consult them and take them into account at sentencing. It helps if they are correct. The 9th states that "we hold that a material error by the district court in calculating the applicable Guideline range is grounds for resentencing, just as it was before Booker." (at 694). If there is no Guideline error, then the court will proceed to address challenges to reasonableness of the sentence. It cites to Menyweather, slip op at 16488-89. The 9th's note 5 outlines the views of the other circuits. The 9th will follow the 5th, 6th, 8th, and 11th Circuits. The 2nd and DC Circuits apparently use guideline errors as one factor in the total reasonableness. The 10th Circuit seems confused, only applying reasonableness to post-Booker cases. Okay, so the bottom line is a two step procedure: are the Guidelines accurate, and if so, was the sentence reasonable. The good news is that a Guideline error will get a reversal and remand, without a reasonableness totality examination. The bad news is precisely that, because the courts have to go with the Guidelines first, and so tend to view a sentence through the prism. On the whole, this procedure seems to give weigh in favor of the defendant. One can argue that the defendant gets two bites of the sentencing apple: guidelines and then reasonableness. The 9th then proceeds to dispatch the sentencing claims pretty quickly (there had been a trial and an extensive sentencing hearing, and the record supported the various sentences with no legal errors).

Monday, January 16, 2006

Case o' The Week: An (Allen) Wrench Thrown into Plea Deal, Prosecutorial Breach

There’s a lot of detail in modern U.S. Currency (left). Too much detail for the defendant’s counterfeit to pass in United States v. Ted Allen, __ F.3d. __, C.A. No. 05-50078 (N.D. Cal. Jan. 12, 2006), available here. In Allen, the Ninth remands for evidentiary findings on a guideline enhancement. The more interesting aspect, however, is the Court’s discussion of prosecutor breach of plea agreements.

Players: Judge Berzon writes for the panel, with Canby and Fernandez on board.

Facts: Ted Allen pleaded guilty to counterfeiting. Slip. Op. at 528. The plea agreement had Allen pleading to selling 14 $100 bogus bills, and recommended an Offense Level (OL) of 9. Id. at 529. Probation, predictably, came in at OL 15 in the PSR. Id. at 530. The bump came from Allen’s alleged possession of a counterfeiting device. Id. The court asked the AUSA if a device had been recovered, and when pressed the AUSA said she could present evidence of that. Id. She clarified, though, that the government stood by its recommended agreement. Id. The court and the AUSA questioned the agent, that described counterfeiting gear. Id. at 531. The defendant got the bump and a 12 month sentence. Id.

Issue(s): 1. Did the district “misinterpret[ ] the Guidelines in determining [Allen’] sentence?” Id. at 532. 2. Did the “government breach[ ] the plea agreement by participating in the evidentiary hearing regarding the possession of counterfeiting devices or materials ordered by the district court?” Id. at 539.

Held: 1. Re: Guidelines: The court erred in its guideline calculations – it needed to make findings regarding the quality of the counterfiet bills. 2. Re: Breach: “The government’s actions in this case were not an attempt to persuade the district court to impose a higher sentence . . . . [T]he government did not argue, unprompted, that Allen manufactured the counterfeit bill. Instead, the government responded to the district court’s specific requests. Id. at 541.” “The combination of some judicial questioning and prosecutorial care to present the testimony neutrally avoided . . . a breach of the plea agreement.” Id. at 542-43.

Of Note: Even though Allen had already completed his term of imprisonment, he could bring this appeal. Id. at 532. “[W]here a defendant has received a sentence that includes a period of supervised release, a challenge to the length of the sentence of imprisonment is not moot because the district court has discretion regarding the length of supervised release . . . and can change the supervised release period.” Id.

How to Use: This case is a defense win, with a remand to for evidentiary findings on the guideline enhancement. The most interesting aspect of the opinion, however, is its discussion of “breach.” Id. at 539 Section IV. Over 97% of federal cases end in deals or pleas instead of trials. The federal system leaves little room for charge bargaining, and most USAO’s forbid “Booker” deals that avoid the guidelines. As a result, even in the post-Booker world, frequent and necessary bargaining chips are guideline enhancements. The value of these types of deals depends on the AUSA’s trustworthiness, and on a court’s reputation for “busting deals” (for going behind the agreement, as happened here). While the Ninth tolerated the AUSA’s actions in Allen, there are two important principles that arise from the decision’s discussion of breach. First, the AUSA made it clear that she was not seeking the enhancement, and only responded to the court’s inquires. Second, the Court explains that when this situation happens, the court – and not the AUSA – should question the government’s witnesses. Use these principles from Allen when fending off an AUSA who goes back on their deal in the face of a contrary PSR.

For Further Reading: Counterfeiting cases are usually lousy. They often seem to involve clumsy attempts at counterfeiting by drug addicts – and often by meth users. Despite these often pathetic counterfeiting attempts, the guidelines on the offense are nothing to sneeze at. An interesting web site explains in depth how to counterfeit money – and why it is a dumb idea. See article here. Hopeully the new security features will dissuade future clients, and fewer of these sad cases will make their way into federal court.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at

Wednesday, January 11, 2006

US v. Alferhahin, No. 04-10590 (1-11-06). The 9th requires a "materiality" element in a prosecution for 18 USC 1425(a), which is knowingly procuring naturalization "contrary to law." The defendant failed to list a prior marriage. He argued that it was immaterial, as the divorce had been granted and that he would have received naturalized citizenship. Counsel, however, failed to ask for a materiality element in the instruction, and brushed aside the court's asking if it was required. The gov't argued that no materiality element was required. The 9th goes through the statute, analogous ones, and deems it required that the failure to disclose the fact (contrary to law) had to assessed as material. The court found the error to be plain, and that it affected the defendant's rights, and that it called into question the fairness and integrity of the proceedings.The 9th also found that counsel was ineffective. Reversed and remanded for a new trial. Berzon

Kaua v. Frank, No. 05-15059 (1-11-06). The state (Hawaii) cannot avoid Apprendi by arguing that an "public safety" element leading to an enhanced sentence is superfluous, because the key triggering facts are prior convictions. The district court granted relief, and the 9th affirmed. The state had always used a two prong approach, with separate findings. the state could not now ignore the "public safety" component under Apprendi.

Tuesday, January 10, 2006

US v. Weaver, No. 04-50608 (1-10-06). This is a car search case arising under Belton. The defendant was driving and subsequently stopped when a police officer recognized a passenger as having outstanding warrants. The passenger was arrested. The defendant (the driver) refused to grant consent. The officer informed her that he would search incident to arrest, and summoned a third officer for security and under procedure. This wait took 15 minutes, during which, according the defendant, "time froze." The 9th however said that objectively, the 15 minutes still fell within the "contemporaneous" scope of the car search. It fell between the 5 minute delay approved in McLaughlin and the 30 to 45 minute delay in Vasey. The 9th stresses, though, that time by itself is never dispositive, but is a factor (see note 1). The 9th (Pregerson) ends the opinion by reiterating that the Belton rule (search of car incident to arrest for officer safety) is broader than its stated rationale. The arrestee was handcuffed and the others secured before the search was conducted. The 9th joins other courts in "respectfully suggest[ing] that the Supreme Court may wish to re-examine this issue." Take this as a hint for certs on the Belton issue.

Hanson v. Mahoney, No. 02-35795 (1-10-06). Can a Magistrate Judge issue a COA? The 9th said "yes." The judge has authority under the Magistrate's Act and although there is plenty of ambiguity in the COA authorizing statute (references to "circuit justices and judges"), nonetheless, prior precedent in the 9th and other circuits (e.g. the 7th) find the power. On the merits, the petitioner, who has a claim for actual innocence, nonetheless defaulted on a Weaver (jury unanimity) claim in Montana, and so is procedurally barred from consideration. The cases occurred before his direct appeal, and he should have raised them Moreover, strong evidence of innocence (this was a sex abuse case, and the victim's mother had left vitriolic messages on the phone vowing that she would do anything to get the petitioner) were either procedurally defaulted or unexhausted, and could not now be considered. Judge B. Fletcher wrote the opinion, and then added a special concurrence, in which she lamented the procedural hurdles that prevented the 9th from considering this compelling evidence, and ruing the fact that because the petitioner still professed his innocence, he would not be paroled. It is in a Gordian knot of procedure that courts have entangled the merits of a claim. Judge Fletcher also suggested to the state that may consider some alternative, but, as she wrote, "The State's stringent and unbending approach, however unfortunate, is unremediable."

Sunday, January 08, 2006

Case o' The Week: Consuelo at Bat(son), Williams v. Runnels

The Ninth (lead by Judge Consuelo Callahan, left) makes the most out of two newish Supreme Court Batson cases in the very useful Williams decision. Williams v. Runnels, __ F.3d. __, C.A. No. 04-55830 (9th Cir. Jan. 5, 2006), available here.

Players: Judge Callahan authors a very good Batson opinion.

Facts: Williams was charged with 2nd degree robbery and was tried in ‘98. C.A. No. 04-55830, at 44. The D.A. agreed to take the jury in the box, but when the defense exercised preemptories he joined in. Id. The D.A. struck 4 jurors, 3 of whom were African-American. The defense raised a Batson (in California, Wheeler) challenge. Id. The trial court refused to allow the D.A. to explain his strikes, saying the record needn’t be “squeaky clean.” Id. at 46. Unsuccessful appellate/habeas litigation eventually landed the case in the 9th. Id. at 47-49.

Issue(s): “[W]e must determine whether [Williams] made a prima facie showing of purposeful discrimination when he raised his Wheeler/Batson objection. Our inquiry into this matter requires that we first ascertain the proper legal standard for reviewing a claim of purposeful discrimination based on statistical disparity, and then apply that standard to Williams’ case.” Id. at 49.

Held: “We conclude that the state appellate court and the district court, not having the benefit of the Supreme Court’s recent opinions in Johnson and Miller-El, failed to appreciate that (1) Williams’ showing of statistical disparity was only required to raise an inference of purposeful discrimination and (2) refutation of that inference requires more than a determination that the record could have supported race-neutral reasons for the prosecutor’s use of his preemptory challenges on prospective African-American jurors.” Id. at 57.

Of Note: In Williams, the Court emphasized that it can – and must – question the prosecutor’s motives. A statistical showing of race-based strikes requires an explanation for the strikes, and it is the trial court’s job to cess out whether that explanation is credible. Id. at 55. “[T] he question is not whether the prosecutor might have had good reasons, but what were the prosecutor’s real reasons for the challenges.” Id. Subjective intent matters.

Just two weeks ago, however, this memo talked about Willis: a traffic stop case that followed Whren and proclaimed that a cop’s subjective intent for a traffic stop is irrelevant. What matters in that context is that the cop had objective probable cause for the traffic stop. How does one reconcile Williams and Willis to non-lawyers?

Maybe Society doesn’t trust prosecutors (Williams), but does trust cops (Willis/Whren), so we’ll look at the subjective intent of the former and objective intent for the latter? Maybe it’s because with Whren, there’s already been evidence of a traffic violation, and in Williams, there has already been statistical evidence of discrimination – thus the rules cut against the party with dirty hands. Or maybe the only thing the three cases have in common is the letter “W.”

How to Use: Williams should be in a trial attorney’s tool box as a primer on Batson challenges after the Supreme Court’s Johnson and Miller-El decisions. First, it lays out the three-step Johnson analysis for Batson error. Id. at 49. More importantly, the case takes the challenge seriously, with useful language about the lower burden on the defense, id. at 50-51, and the higher burden on the prosecutor to rebut, id. at 53. It is not enough for the prosecution to simply show “that the record would support race-neutral reasons for questioned challenges.” Id. at 53. Williams also illustrates the importance of making the record. This defendant was sentenced to thirty-four years to life. If not for a savvy trial lawyer who kept track of the D.A.’s strikes he’d have had no hope of relief.

For Further Reading: Judge Consuelo Callahan was nominated by W. Bush and took Judge Fernandez’s seat in May 2003. See article here. A Stanford undergrad and McGeorge graduate, Judge Callahan served as a D.A. and a San Joaquin County Judge. Id. She has been characterized as a “moderate conservative.” See article here. Judge Callahan is also reportedly the only tap-dancing member of the Ninth Circuit. See article here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at

Friday, January 06, 2006

Williams v. Runnels, No. 04-55830 (12-5-06). This is a useful Batson case. It comes from the state (California) where a "Wheeler" standard was used. The prosecutor at first accepted the jury panel, and then when the defense started to exercise preemtories, the prosecutor used three of his four against African Americans (there were only four in the whole panel). The state court found that there wasn't a "strong likelihood" of a Batson violation. This was the wrong standard, as the Supreme Court made clear in Johnson and Miller-El. The defendant need only show an inference of discrimination had occurred. This is a lower standard, the distinction between near certainty and possible. The defendant here made such a showing, and the court erred, in not finding a prima facie case. Interestingly, the prosecutor tried to make a record but the state court judge brushed him off, saying that he didn't have to, and that the record didn't have to be "squeaky clean." The 9th emphasized that the appellate courts shouldn't and couldn't invent or imagine race neutral reasons for such strikes; the Supremes meant to protect sixth amendment rights.

US v. Teeples, No. )3-30307 (1-5-06). On remand from the Supremes in light of Booker, the 9th reaffirms that prior convictions for "lewd and lascivious acts with a child under fourteen" are crimes of violence. The 9th concludes that sexual relations with children under fourteen carries a serious potential risk of injury, physical force, and the abuse of authority, plus the difference in age and size. The 9th remanded under Ameline.

Thursday, January 05, 2006

US v. Adams, No. 04-30339 (1-3-06). Add something else to the pre-Booker plea colloquy. In this opinion, the 9th finds it is "plain error" for the court not to inform defendant, in the pre-Booker context, that a fine under the guidelines is mandatory. Thus, his plea was unknowing of the penalties, and involuntary. The defendant plead guilty to growing marijuana plants. The gov't agreed to recommend that no fine be imposed. The court nonetheless imposed a $400,000 fine. Defendant argued on appeal that if he knew the fine was mandatory, he would not have plead guilty. The 9th agreed, running counter to nine other circuits, and arguably (according to Kleinfeld in a spirited dissent) the 9th's own precedent. The majority reasoned that the Guidelines state that if the defendant can pay a fine, a fine must be imposed. The 9th finds this a "mandatory" condition, and bolstered its holding with the amendment to Rule 11 in 1989 that instructs the court to state that the Guidelines must be applied (this is again pre-Booker and in the plea context). The precedent that may be used to say that only stat mandatory minimums need to be imposed (Maree) was prior to this amendment. In dissent, Kleinfeld is aghast that the majority (Alarcon and Konzinski) would read the requirement of "having to impose a fine" as really meaning that, when it was a guideline minimum, not a statutory one, and the other circuits have run counter.

Santos v. Guam, No. 03-70472 (1-3-06). No Circuit is an island, entire of itself, but when it comes to Guamian jurisdiction, Congress did make the island entire of itself, at least for decisions arising from Guam law and decided by the Guam Supreme Court. The 9th used to have jurisdiction to review the Guam Supreme Court's decisions. Congress took it away on Oct. 30, 2004. What happens to cases in the pipeline? The 9th looked to Supreme Court precedent (Ex parte McCardle, Bruner and Landgraf, where cases have held that when jurisdiction is repealed, with no reservation clauses for pending cases, the court is without jurisdiction. Wallace concurred, adding that a party doesn't have a right to have a number of tribunals to seek appeal. This jurisdiction stripping case may have implications in the future should Congress strip jurisdiction either in habeas or in other areas.

Tuesday, January 03, 2006

Case o' The Week: North, Ill, Southwell - Affirmative Defenses and Unanimity

A firefighter so addicted to the rush of his job that he becomes an arsonist. Sound like the plot of Backdraft (left)? It is. It is also not too far from the facts of the Ninth’s latest decision on affirmative defenses, United States v. Southwell, __ F.3d. __, Slip Op. 04-30521 (9th Cir. Dec. 30, 2005), available here.

Players: Memorable win by AFPD Kimberly Deater, E.D. Washington.

Facts: Southwell was accused of starting a fire at a seed company in Washington. Slip Op. at 16910. At trial, he mounted an insanity defense. Id. The jury received an (unclear) instruction on insanity, and then sent a note during deliberations. Id. at 16910-11. That note asked if they could convict if they were unanimous on guilt, but split on insanity. Id. at 16912. Over defense counsel’s protests, the district court refused to clarify. Id. at 16913.

Issue(s): “[W]hether the district court’s failure to answer the jury’s question during deliberations was an abuse of discretion and, if so, whether the defendant was prejudiced thereby. To answer the latter question, we also decide whether a jury must unanimously reject an affirmative defense before it can find a defendant guilty.” Id. at 16910.

Held: “Failure to provide the jury with a clarifying instruction when it has identified a legitimate ambiguity in the original instructions is an abuse of discretion.” Id. at 16914. “If a juror finds that the government has proven each element of the offense beyond a reasonable doubt, and also finds that the defendant has not proven insanity by clear and convincing evidence, he must find the defendant guilty. If another juror finds that the government has proven each element of the offense beyond a reasonable doubt, but also finds that the defendant has proven insanity by clear and convincing evidence, he must find the defendant not guilty by reason of insanity. Since a jury verdict must be unanimous, a jury united as to guilt but divided as to an affirmative defense (such as insanity) is necessarily a hung jury.” Id. at 16917 (footnote omitted).

Of Note: In Southwell, the Ninth announces a new federal rule on affirmative defenses: a jury must unanimously reject a defendant’s affirmative defense in order to convict. The rule, of course, is important in insanity cases. It applies with equal force, however, for other affirmative defenses – such as duress, coercion, or compulsion (legal excuse). See Ninth Cir. Model Crim. Jury Inst. 6.6. Affirmative defenses are more common in state practice – for example, the defense that an accused did not have qualifying priors for a “strike.” United States v. Kaluna, 192 F.3d 1188 (9th Cir. 1999). Query whether Southwell – a federal circuit decision – controls in state practice? It might: the decision is based on a constitutional analysis, the right to a unanimous verdict.

How to Use: Beyond its obvious value for affirmative defense cases, Southwell is important for its strong language on jury unanimity. Id. at 16914-95. It is likely that the defense only prevailed in this case because the issue was framed as a constitutional question; the constitutional right to a unanimous verdict. Id. at 16915. This forced the government to try to prove that the error was “harmless beyond a reasonable doubt,” a task it failed to meet. Id. Thankfully, maybe, the district court refused the defense request to poll the jury. Id. at 16918. Thus the Ninth could not determine the ultimate vote on insanity and the error was not “harmless.” Id. Use Southwell’s reasoning in arguments against ambiguous instructions, and in support of specific unanimity instructions. See Ninth. Cir. Model Crim. Jury Inst. 7.9 (“Echeverry” instruction).

For Further Reading: Ever see the good Ron Howard flick, Backdraft? In it, a firefighter starts fires in order to fight them. The movie resonates in Southwell, for the defendant here was a volunteer firefighter who allegedly started a fire in a big seed plant – then lead the team to put out the fire. See article here. The sad facts of the case are omitted from the opinion: Ken Southwell apparently had a multiple personality disorder and a sleeping disorder, and admitted to starting five fires in the area with flares taken from the fire station. See article here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at