Wednesday, November 29, 2006

Gonzales: DOJ agrees Ninth Circuit precedent on minor offenses is flawed

At a recent sentencing roundtable sponsored by the Sentencing Commission, participants identified the confusing and somewhat irrational rules for when to count minor offenses under U.S.S.G. § 4A1.2(c) as an area in need of improvement. So I received with interest and pleasure word from intrepid Spokane Federal Defender attorney Tracy Staab that the Department of Justice has conceded that the Ninth Circuit should grant rehearing en banc to correct United States v. Williams, 291 F.3d 1180 (9th Cir. 2002).

Let’s take it from the top. Section 4A1.2(c) lists misdemeanor and petty offenses that are generally not counted as criminal history, including disorderly conduct, reckless driving, contempt, driving while suspended or revoked, false information to a police officer, prostitution, trespassing, failure to obey a police officer, and offenses similar to those listed. However, these frequently occurring but relatively minor convictions do count as criminal history "if (A) the sentence was a term of probation of at least one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to the instant offense."

The scope of the exception based on the sentence imposed was at issue in Williams. In that case, Mr. Williams argued that, because a prior criminal mischief conviction was similar to disorderly conduct, he should not have received a criminal history point because he received a completely suspended sentence of six months. The Ninth Circuit, in a per curiam opinion, held that the conviction would be counted in any event because the six month sentence, even though suspended, constituted a "prior sentence" under § 4A1.2(a)(3).

So enter Tracy Staab advocating for Mr. Gonzales, whose federal sentence was being increased by a criminal history point for a driving while suspended conviction for which he received a 30-day suspended sentence. While acknowledging that a totally suspended sentence constituted a "prior sentence" under § 4A1.2(a)(3), she pointed out that the suspended portion of the sentence did not constitute a "term of imprisonment" for the purposes of § 4A1.2(c)(1)'s exception to the general rule that the listed offenses do not count as criminal history. Instead, a "term of imprisonment" only includes the non-suspended portion of the sentence under § 4A1.2(b)(2)("'sentence of imprisonment' refers only to the portion [of the sentence] that was not suspended") and United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir. 2005). And a sentence that was totally suspended does not qualify as a sentence of imprisonment under U.S.S.G. § 4A1.2, comment. (n.2). In response, the DOJ did the right thing and filed a brief (available here) recommending rehearing en banc to correct the aspect of the Williams opinion that counted the suspended portion of a term of imprisonment.

While we are waiting for the Ninth Circuit to act, a couple of things to keep in mind: we need to take care that our clients’ sentences are not being enhanced based on suspended sentences under Williams while we have a concession that the case was wrongly decided; and this is a good reminder to analyze our cases past the superficial levels to attack seemingly harsh or illogical positions (as illustrated by legal archaeology on errors in minor role and the presumption of reasonableness).

Congrats to the Federal Defenders of the Inland Empire!

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Sunday, November 26, 2006

Case o' The Week: First the ruling, THEN the appeal - Lazarenko, Standing & Ripeness

The dust hasn't completely settled in the epic Lazerenko criminal trial (left) before civil folks are fighting over forfeited assets. In United States, Liquidators v. Lazarenko, the Ninth (including a guest spot by Justice O'Connor) suggests a novel approach -- get a district court ruling first, then appeal. 06 Cal. Daily Op. Serv. 18657 (Nov. 21, 2006), opinion available here. A case that is a long ways from indigent defense, but that provides an interesting discussion of criminal forfeiture and standing/ripeness issues.

Guest star Justice Sandra O’Connor, joining Judges Pregerson and Tallman.

In 2004, former Ukranian Prime Minister Lazarenko was convicted in federal district court of many counts, including money laundering. The government won a preliminary order of forfeiture of $2.5 million that was allegedly involved in money laundering. Id. at 18662. Third-party claimants (the “Liquidators”) were authorized by the “High Court of Antigua” to recover and disperse these same funds. Id. N.D. Cal. Judge Jenkins refused to hear the Liquidators’ motions challenging forfeiture of the funds until after Lazarenko was sentenced, and until there was an ancillary proceeding on the ultimate fate of the assets (as required by statute). Id. at 18665.

Issue(s): 1. Due Process:
The constitutionality of the criminal forfeiture statute, which delays third-party challenges until after a defendant’s sentencing. 2. Standing / Ripeness: We must first determine, however, whether Liquidators have standing to invoke the jurisdiction of this Court before the district court concludes ancillary proceedings.” Id. at 18662.

Held: 1. ? 2.
“We hold that they do not [have standing]. We further conclude that the controversy is not yet ripe for judicial review. We therefore dismiss this appeal for lack of appellate jurisdiction.” Id. at 18662.

Of Note:
This case only makes sense in the world of billable hours. Down below, the ancillary proceeding on the fate of the funds was delayed by the district court until the Ninth Circuit appeal was complete. The Liquidators’ Ninth Circuit appeal, in turn, complained that it took too long for the ancillary proceedings to begin. Seem circular? The Ninth seemed to think so. Id. at 18672.

What was this case really about? Maybe getting the government’s concession in oral argument that it owes pre-judgment interest if it had screwed up the criminal forfeiture . . . and maybe it did, since it appeared to have blown the statute of limitations. Id. at 18671. Looks like several AUSAs can kiss their Christmas bonuses goodbye . . . .

How to Use: Even if you’re not appointed to represent former Ukranian prime ministers, Lazarenko is of interest in two respects. First, Judge Tallman provides a clear and concise description of criminal forfeiture – it is a useful primer on an increasingly common government tactic. Id. at 18665-68. Second, the opinion gives an in-depth analysis of standing and ripeness jurisprudence, including the interrelationship of the two concepts. Id. at 18669-75. Interestingly, and perhaps unnecessarily, the Court goes beyond the constitutional component of standing and ripeness and analyzes the “prudential standing principle” as well. Id. at 18673.

For Further Reading:
Pavlo Ivanovych Lazarenko has had a colorful career. Appointed as Prime Minister of the Ukraine in 1996, he survived a bomb attempt on his life early in his term. See wikipedia article here. He resigned in 1997, after allegations of economic fraud and patronage. Id. He was arrested leaving France into Switzerland in 1998, on money laundering charges. Id. Released on bail, he went to Greece and then to the U.S., where he was arrested in 1999. Id. He was convicted in a jury trial before Judge Jenkins in 2004, and was sentenced to nine years in jail in August of 2006. See BBC article here. He was also ordered to pay a $10 million fine. Id.

ADDENDUM: 11.27.06 at 1:30 pm: A long talk with a counsel involved in this case provides a very different spin on the decision and issues at stake. According to one of the parties, the $2.5 million at stake in this case was originally subject to civil forfeiture years ago -- but the USAO blew the statute of limitations and the Liquidators won a summary judgment on the funds. Undeterred, the USAO swapped horses and shoehorned the millions into criminal forfeiture allegations, after Lazarenko was convicted. Apparently, the same statute of limitations problems plague these criminal forfeiture allegations -- but the Liquidators can't get to a hearing on the issue. Moreover, the quick ancillary proceedings promised by Judge Tallman can, in reality, often take years to resolve, and may not be wrapped up until Lazarenko's appeal is completed (which should conclude in 2012 or so . . . .).
In other words, the real issue in the case was this: if the government wrongfully seizes or forfeits funds before trial, can you challenge the seizure right away or must you wait years -- or decades -- to get a hearing? That question -- and the equitable concerns behind it -- certainly didn't make it into the opinion.
One real problem is Lazarenko's hit on the Ninth Circuit's earlier Crozier decision. Generally speaking, Crozier stands for the constitutional right to get a hearing on forfeited assets, earlier than the statute allows. Arguably, Lazarenko is inconsistent with Crozier. Keep an eye out for an en banc petition.

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


Wednesday, November 22, 2006

US v. Martinez-Rodroguez, No. 05-50719 (11-21-06). The 9th (Gould joined by Pregerson and Clifton) affirms a 1326 conviction and sentence. The 9th held that the jury had to find a removal subsequent to an aggravated felony and thus the element was met that increased the conviction's max to 20 years. The jury had two removals to choose from -- 1994 and 1999 -- and both were after the 1992 conviction. The jury's failure to specify the date does not constitute a missing element. The 9th also reconfirmed that it was bound by Almendarez-Torres.

US et al vs Lazarenko, No. 06-10273 (11-21-06). Keep this case in mind when you are representing a former Ukrainian Prime Minister convicted of money laundering, forfeited assets, and standing by creditors. The 9th (with Justice O'Connor sitting) held that creditors do not have standing to contest the government's forfeiture.

Tuesday, November 21, 2006

Angelos: how about cert grant to reach a statutory solution?

The tale of Weldon Angelos has haunted many a sentencing expert over the past couple of years. Mr. Angelos engaged in several marijuana transactions while carrying a gun. The prosecutor, despite Mr. Angelos's paltry criminal history, insisted on section 924(c) mandatory minimums for separate counts. Thirteen years ago in United States v. Deal, the Supreme Court held that separate counts of armed bank robbery required the stacking of section 924(c) mandatory minimums of 5 years, plus 25 for the "second or successive conviction," plus 25 years for the next count, and so on. The same type of stacking would lead to a horrendous mandatory sentence for Mr. Angelos.

Utah District Court Judge Paul Cassell was distressed. Even in an age of harsh punishments, the required punishment seemed so out of kilter that he put out a call for anyone to provide him with a theory why this result violated the Constitution. Despite massive efforts to construct an Eighth Amendment argument, Judge Cassell ultimately gave up and imposed a fifty-five year sentence, accompanied by a plea for the exercise of executive clemency on behalf Mr. Angelos (available here).

On appeal, Mr. Angelos's lawyers met with no success in the Tenth Circuit (opinion available here), and, as Professor Berman reports here, the Supreme Court is now deciding whether to grant certiorari. Once more, the focus is on the Eighth Amendment. However, the Tenth Circuit opinion hints at a statutory solution that should be attractive to the Supreme Court, especially to the Deal author -- Justice Scalia.

In Clark v. Martinez, Justice Scalia authored another of a series of opinions that have been coming out of the Supreme Court on the Doctrine of Constitutional Avoidance. Before reaching constitutional issues, the Court consistently counsels to examine the statute first for a non-constitutional resolution. And a statutory solution is exactly what the Court has available in Mr. Angelos's case.

The key is the distinct statutory language in section 924(c) regarding "crimes of violence" -- such as the bank robberies in Deal -- and the "drug trafficking crimes" involved in Mr. Angelos's case. The former term is described in the statute as "an offense that is a felony" and involves violence (section 924(c)(3)); the latter term means "any felony punishable under" listed federal drug statutes (section 924(c)(2)). A basic rule of statutory construction holds that different language in the same statute is conveying a different meaning. Here, Deal dealt with successive felony offenses, whereas Mr. Angelos should have had a single gun count based on "any felony" in the underlying drug activity.

And this distinction makes perfect sense under the Sentencing Reform Act. Crimes of violence are generally treated separately under the Chapter Three grouping rules, while drug trafficking crimes are consolidated based on total quantity. This reasonable reading also avoids the huge potential for prosecutorial abuse of section 924(c) in the drug context. Unlike crimes of violence, drug crimes can be charged in a practically unlimited number of separate counts.

So here's hoping that Mr. Angelos has cert granted. If so, our old friend statutory construction may be stronger than the battered Eighth Amendment.

Steve Sady, Chief Deputy Federal Public Defender, Portand, Oregon

Sunday, November 19, 2006

Case o' The Week: Reina-Rodriguez and agg burg analysis

In an illegal reentry case, the Ninth (says) it doesn't get to the issue of a district court surfing for its own facts at sentencing. See United States v. Reina-Rodriguez, __ F.3d __, 06 Cal. Daily Op. Serv. 18573 (9th Cir. Nov. 15, 2006), opinion available here. A disappointing case that holds conceded ambiguity in a prior conviction against the defendant.

: Hard-fought appeal by Az. AFPDs Christopher Kilburn and Brian Rademacher.

Facts: Reina-Rodriguez pleaded open to illegal reentry. Id. at 18577. At sentencing the court had an “amended” information that read “AGGRAVATED [stricken] BURGLARY, a first [stricken] 2nd degree felony . . .” (strike-out and addition of "2nd" in original). Id. The J&C stated that the plea was to Burglary (amended)–2nd degree felony.” Id. The judge imposed the sixteen level enhancement for a crime of violence, and went on to refuse the request for a sentence akin to the “fast track” offers. Id. at 18579.

Issue(s): 1. Reina-Rodriguez “argues that application of a sixteen-level enhancement . . . for his prior conviction in Utah was erroneous.”

. “He also argues that the district court’s sentence was unreasonable because it improperly considered, as a factor, that he did not plead guilty pursuant to a plea agreement.” Id. at 18577.

Held: 1. “We cannot say based on the fact of conviction and the statutory definition of a Utah felony burglary in the second degree that Reina-Rodriguez’s prior conviction was categorically a ‘crime of violence’ . . . .” Id. at 18583-84. But, “under the modified categorical approach, we find that Reina-Rodriguez’s prior conviction in Utah for felony burglary in the second degree resulted from a burglary of a dwelling. We further find that burglary of a dwelling under Utah law categorically fits the Guidelines’ definition of ‘burglary of a dwelling.’ Accordingly, the district court did not err . . . .” Id. at 18591.

2. “That the district court considered Reina-Rodriguez did not plead guilty pursuant to a plea agreement did not render his sentence unreasonable. The district court simply noted that the sentence would have been lower ‘had [Reina-Rodriguez] taken a plea agreement . . . for uniformity purposes.” Id. at 18593.

Of Note: The panel concedes that “Arguably, it is not entirely clear whether Reina-Rodriguez’s conviction resulted from an attempted aggravated burglary or a burglary of a dwelling.” Id. at 18585. (The former would have given him a shot of avoiding the agg felony). Given that ambiguity, the panel’s rationalization of what really happened when the information was amended is not persuasive. See id. Without facts in support, the panel hypothesizes that if the defendant had really pleaded to attempted agg burg, “attempt” would have been in the charging document. Id.

Here’s the back story: at sentencing, the district court sua sponte donned its Sherlock Holmes cap and did a public records check of the address involved, concluding that it was “in fact, a single resident building.” Id. & n.8. Don’t worry, though – the panel assures us that this didn’t affect its analysis . . . . Id.

God save us from district courts with internet access . . . .

How to Use: Creative Arizona counsel complained that Reina-Rodriguez should have got the fast track break because he pleaded guilty. The panel disagreed: it was not Booker “unreasonable” to not give a lower fast track sentence without a plea agreement. The panel was, however, notably restrained – it did not prohibit that reduction. Id. at 18593-94.
Fast track often presents this dilemma: should an alien sacrifice a sure four levels off, for a shot at beating the sixteen offense level enhancement? Seems a fair sentence should split the baby: shave two extra levels off for the early and painless plea, and deny the extra two levels because a “true” fast track defendant waives all appellate rights.

For Further Reading: Do 9th Circuit Judges spend their days wrestling with intriguing constitutional issues? No: they spend most of their time fretting over the nature of prior offenses. See, e.g., Fernandez-Ruiz v. Gonzalez, (9th Cir. Nov. 15, 2006) (holding misdemeanor assault not crime of moral turpitude); United States v. Moralez-Perez, (9th Cir. Nov. 13, 2006) (holding “purchase with intent to distribute” is an agg felony); United States v. Martinez-Martinez, (9th Cir. Nov. 14, 2006) (holding that firing a weapon at a residence not a categorical crime of violence).
Maybe it has just been an unusual month but it seems that, of late, someone gets a bonus for every reference to “Taylor analysis” in a published opinion.

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


Friday, November 17, 2006

BOP Update: Mass Overincarceration And Miscalculation Of Good Time

This morning Professor Berman has us thinking about the huge material and human costs of overincarceration in America (here and here). Which leads me to thoughts once again of the Bureau of Prisons policy of shorting federal prisoners of seven days a year of good time credit. When constructing the sentencing guidelines, the Sentencing Commission created the Sentencing Table -- the graph upon which every federal prison sentence is charted -- assuming that prisoners were required to serve 85% of the sentence imposed and could therefore receive up to 15% in good time. Nevertheless, the BOP has only allowed a maximum of 12.8% of good time credits against the sentence imposed, thereby adding hundreds of millions of prison cost dollars and over 34,000 years of overcarceration to the sentences intended by Congress and the Sentencing Commission.

The story starts in 1987, when the Sentencing Commission’s staff was assigned the task of creating a baseline for the Sentencing Table, upon which all federal sentences were to be graphed. To create the Sentencing Table, Sentencing Commission staff collected a large sample of sentences for a broad array of crimes and determined the actual time served as a baseline. United States Sentencing Commission, Supplemental Report On The Initial Sentencing Guidelines And Policy Statements (June 18, 1987) at 23. Then, the Commission "adjusted for good time" by figuring out the longer sentence for which the actual time served would be 85%:

"Prison time was increased by dividing by 0.85 good time when the term exceeded twelve months. This adjustment corrected for the good time (resulting in early release) that would be earned under the Guidelines. This adjustment made sentences in the Levels Table comparable with those in the Guidelines (which refer to sentences prior to the awarding of good time)."

Id.; see also U.S.S.G. Ch.1, Pt. A, § 3, para. 3 (2005) at 9 ("Honesty is easy to achieve: The abolition of parole makes the sentence imposed by the court the sentence the offender will serve, less approximately fifteen percent for good behavior.").

Thus, every federal prisoner has had a term of imprisonment imposed based on a Sentencing Table that assumes good time credit based on 15% of the sentence imposed. But the BOP takes a different view. The BOP does not base good time on the term of imprisonment, but substitutes a "time served" formula that reduces maximum good time credit by seven days for every year of the sentence imposed. The BOP formula requires that ideal prisoners serve at least 87.2% of the sentence imposed. For example, on a year-and-a-day sentence, maximum good time credit is 47 days, not 54 days; on a 60-month sentence, the maximum good time credit is 235 days, instead of 270 days; on a 120-month sentence, the maximum good time credit 470 days, not 540 days. Until the BOP changes its method of calculation to mirror the method upon which the Sentencing Table is calibrated, every bottom-of-the-guideline sentence is 2.2% higher than the Sentencing Commission intended based on its statistical methodology.

The over-incarceration multiplies with every added year of the sentence. For all federal prisoners eligible for good time, the total time involved is over 34,000 years (188,410 prisoners x 7 days a year x 9.5 average sentence over a year and less than life ÷ 365 days in a year = 34,326 years). At $22,265.00 per year for non-capital incarceration expenditures, this amounts to over $764 million in taxpayer money that Congress did not intend or authorize to expend on incarceration for current prisoners, and over $66 million more for each new year.

The circuits are in disarray on reasoning but relatively consistent in result: the good time statute is ambiguous, so instead of applying the rule of lenity, the courts have deferred to the BOP’s severe construction. Three district courts have ruled our way in well-reasoned opinions that have been overturned by circuit courts. Moreland v. Fed. Bureau of Prisons, 363 F. Supp. 2d 883 (S. D. Tex. 2005); Williams v. DeWalt, 351 F. Supp. 2d 412 (D. Md. 2004); White v. Scibana, 314 F. Supp. 2d 834 (W.D. Wisc. 2004). This past spring, the Supreme Court glanced at the issue in Moreland, drawing a shocking response from Justice Stevens: the Moreland district court appears to be correct, but, in the absence of a circuit split, certiorari would be denied!

How do Defenders respond to Justice Stevens? In his statement accompanying a denial of certiorari on the good time issue (available here), Justice Stevens said we appear to be right that the statute calls for 54 days credit for every year of the sentence imposed: "[B]oth the text and the history of the statute strongly suggest that it was not intended to alter the pre-existing approach of calculating good-time credit based on the sentence imposed." Then, instead of granting certiorari, he encourages further litigation in the absence of a circuit split: "[T]he question has sufficient importance to merit further study, not only by judges but by other Government officials as well."

Two courses of action seem reasonable, both of which involve continued and renewed litigation in the district courts. First, and most simply, we must continue giving the Supreme Court the opportunity to resolve the BOP's misconstruction of the good time statute (as in this sample cert petition). This is a question of exceptional importance: no other criminal justice issue has a fraction of the potential effect on the federal prison population. The Court should recognize that the reason the Circuit Court opinions are as scattered and as illogical as they are may be because of the administrative consequences of a split in the Circuits: uniformity is desirable in the administration of sentences. Only the Supreme Court, by correctly interpreting the statute, can compel the BOP to resolve the problem with a simple computerized adjustment for uniform recalibration of good time credits.

The second approach is relitigating under section 706 of the Administrative Procedure Act, a theory that presents a question of first impression. Under section 706 and the Supreme Court decision in State Farm, agency action is invalid if it is arbitrary, capricious, unreasonable, or an abuse of discretion under 5 U.S.C. § 706. The institutionalized skewing of sentences to add actual time to Guidelines sentences meets all the § 706 factors for unlawful agency action, especially given the statutory call for a sentence sufficient but not greater than necessary to serve the purposes of sentencing. 18 U.S.C. § 3553(a). It makes no sense to require service of time 2.2% greater than the Sentencing Commission itself intended based on the BOP’s refusal to correspond its interpretation of an ambiguous statute to the Sentencing Commission’s interpretation (never mind the violation of the rule of lenity).

And the APA strategy has worked in the past. When the Supreme Court ruled against us on the BOP’s DAP rules, the Court left open the possibility of an APA challenge in footnote 6. Lopez v. Davis, 531 U.S. 230 (2001). The Ninth Circuit later invalidated those same BOP rules for violation of the notice-and-comment provisions of the APA in Paulsen v. Daniels, 413 F.3d 999 (9th Cir. 2005).

Similarly, we should be raising this different APA challenge, for which there is no adverse precedent, in every jurisdiction where prisoners are serving sentences. We should preserve the statutory issues, especially the anomaly of Chevron deference to the Executive Branch on an ambiguous penal statute, and try to get circuits to reconsider en banc. But the next generation of litigation should aim directly at the absurdity of a Sentencing Table constructed on the basis of a statutory construction that the BOP later did not follow, not because there was a considered decision, but because the BOP misinterpreted the statute to unambiguously require their incorrect construction of the statute.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Thursday, November 16, 2006

US v. Reina-Rodriguez, No. 05-10475 (11-15-06). In a 1326 case, the 9th holds that a Utah burglary is an aggravated felony. This may seem simple but it took some fancy footwork and, one could argue, specious reasoning, to reach that result. The defendant had plead to burglary in the second degree. The information had lined through "aggravated" burglary and "first" as in degree. This was important because, under state law, attempted agg burglary is categorically not a crime of violence. The judgment was for burglary in the second degree. The 9th ignored the fact that statute and facts, both unaltered in the information, made it unclear whether the plea was to "attempted aggravated burglary" or "burglary of a dwelling," but the 9th used what it thought was "common sense" and reasoned that it was burglary of a dwelling because "aggravated" was lined out despite the factual basis being unclear and the statute open for interpretation. In sentencing, the 9th also affirmed a sentence as reasonable in spite of the court saying, in effect, that it could not go lower because the government had to have uniformity in its fast-track pleas. The trial court did note that the defendant, by pleading straight up, kept his appeal, but it is a catch-22 because, since he kept his appeal on the aggravated felony issue, he must be punished for not accepting a deal.

US v. Zakharov, No. 03-50214 (11-15-06). Ahoy mates, this is a Maritime Drug Law Enforcement Act (MDLEA) case, which allows the Coast Guard to exert criminal jurisdiction on the high seas. This Belizian ship was stopped with 9200 kgs of cocaine. (The opinion drops a footnote, for no real purpose, noting that this was one of the largest seizures in US maritime history, citing a White House press release. Was that necessary?). The case revolves around whether the constitutional nexus had to be proved to a jury under Apprendi. The constitutional nexus is a decision by the court whether the court could exert jurisdiction because the drugs were headed to the US. The 9th upholds a "minimum contacts" approach, and finds that it is the court's call, although facts had to be proved that supported the exercise. This is a closer question than one would think, especially given the interplay between sovereigns and admiralty. The 9th then held that the facts supported the finding. Apprendi is apparently not seaworthy.

Fernandez-Ruiz v. Gonzales, No. 03-74533 (11-15-06). On remand from an en banc court, the 9th holds that Arizona's Revised Statutes 13-203 and 13-3601, involving misdemeanor assaults, are not crimes involving moral turpitude. These statutes do not have the wilful intent nor type of injury that is necessary for domestic assault to be categorically an offense involving moral turpitude.

Tuesday, November 14, 2006

US v. Morales-Perez, No. 05-10115 (11-13-06). In a 1326 appeal, the 9th (Tallman joined by O'Scannlain and Goodwin) applies a Taylor categorical analysis to hold that under California statute, "purchase with intent to distribute" is a drug trafficking offense and so gets the agg felony Guideline enhancement. The 9th concludes that the federal definition of drug trafficking render it insignificant whether the defendant possessed the drugs with intent to distribute, or purchased them with than intent.

US v. Martinez-Martinez, No. 06-10015 (11-14-06). A person's home may be a residential structure, but is a residential structure always a home? This question, with implications for the 16 level agg adjustment for a "crime of violence," in a 1326 case, was at issue here. The 9th construed an Arizona statute that criminalizes discharging a firearm at a residential structure. The harm at firing a home is clear; but what if the residential structure is not inhabited, is vacate, or is still being built? The 9th (Larson joined by Rymer and Thomas) hold that it is not a "crime of violence" under Taylor's categorical approach, and a modified approach still provides no further basis of facts to show that it was an inhabited house. This opinion, very thorough and comprehensive, describes Taylor, the 9th's precedent in Cortez-Arias, 403 F.3d at 1114, which construes a California statute about firing at an inhabited house, and then the difference with the Arizona statute, which also covers clearly uninhabited residential structures.

Thursday, November 09, 2006

Case o' The Week: "I plead the Fifth" not clear, says Ninth (?!?), Anderson

What does, "I plead the Fifth" mean? According to a disappointing decision from the Ninth, that remarkably clear phrase is ambigious (at least, it isn't objectively unreasonable to label it ambigious). See Anderson v. Terhune, __ F.3d __, 06 Cal. Daily Op. Serv. 18387 (9th Cir. Nov. 8, 2006), opinion available here. Judge McKeown (left) calls the panel (Kozinski / D. Ct. Hogan) out on the case, in a particularly persuasive dissent.

Players: D. Ct. Hogan authors, Kozinski concurs, McKeown dissents.

Facts: Anderson was convicted of special circumstances murder in state court. Id. at 18391. Evidence at trial suggested that he got into a beef with a friend who showed up dead: DNA and other evidence tied the murder to Anderson. Id. at 18383. After interrogation by cops, Anderson eventually proclaimed, “I plead the Fifth.” Id. The cop countered, “Plead the Fifth. What’s that?” Id. Anderson was interrogated further, and finally confessed. Id. at 18394. The district court denied Anderson’s habeas petition.

Issue(s): “Anderson asserts that he was denied his constitutional right to remain silent during this exchange. The state court concluded that while the defendant articulated words that could, in isolation, be viewed as an invocation of his right to remain silent, given the totality of the circumstances, the defendant did not intend to terminate the interview.” Id. at 18394.

Held: “[In light of AEDPA] [w]e’re thus left with only two ways to reverse: First, we would have to find that the state court’s factual findings were unreasonable, and petitioner rebutted them with clear and convincing evidence. Or, in the alternative, we would have to hold that this determination was a question of law, and the state court’s decision unreasonably applied clearly established federal law. . . . Here, neither is the case.” Id. at 18397-98.

Of Note: Judge McKeown tears this decision apart in her dissent. As she explains in her opening salvo, “It is likely that few Americans can profess fluency in the Bill of Rights, but the Fifth Amendment is surely an exception. From television shows like ‘Law & Order’ to movies such as ‘Guys and Dolls,’ we are steeped in the culture that knows a person in custody has ‘the right to remain silent.’ Miranda is practically a household word. And surely, when a criminal defendant says, ‘I plead the Fifth,’ it doesn’t take a trained linguist, a Ph.D, or a lawyer to know what he meant.” Id. at 18399-400 (McKeown, J. dissenting). “It is rare to see such a pristine invocation of the Fifth Amendment and extraordinary to see such flagrant disregard of the right to remain silent.” Id. at 18400. “What about the words ‘I plead the Fifth’ would be unclear, ambiguous, or confusing to a reasonable officer?” Id. at 18405. McKeown would grant the writ despite AEDPA: “Looking at this case through the AEDPA lens of deference does nothing to change my conclusions. The state court’s decision to ignore an unambiguous declaration of the right to remain silent is directly contrary to Miranda.” Id. at 18407. She’s right.

How to Use: This case must be strictly limited by the “considerable deference” afforded state decisions on habeas review; the decision is not controlling in federal Miranda litigation. Id. at 18397. As Hogan cautioned, “If this case were not before us on 28 U.S.C. § 2254 habeas review, we might be writing a very different opinion. There’s definitely more than one way to interpret [the] interrogation. And, the state court’s interpretation might not be the most plausible one. But in federal habeas proceedings under AEDPA, great deference is given to state court factual and legal determinations.” Id. at 18397 (footnote omitted) (emphasis added). Don’t permit an AUSA to argue that this case bears on the conditional invocation of Miranda on a straight federal case: it doesn’t.

For Further Reading
: McKeown hales from Casper, Wyoming – and those origins echo in her oral argument questions and pragmatic approach to cases. See profile here. The first female partner at Seattle’s Perkins Coie, she comes from a civil background of intellectual property work. Id. Like Judge Berzon, however, she’s shown a real willingness to delve into unfamiliar areas of law – she’s a frequent author of criminal decisions, see blog here, and has written some excellent immigration opinions. See blog here. Given this track record, she is – almost – forgiven for her Carreno decision. See United States v. Carreno, here.

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


Lankford v. Arave, No. 99-99015 (11-7-06). The 9th (Reinhardt, W. Fletcher, and Bybee) granted relief in a 22 year old capital murder case. The petitioner was convicted on evidence buttressed by an accomplice's testimony -- his brother. His brother has subsequently recanted his trial testimony and said that he was the one who killed the victim. Over the years, the brother has repeatedly said he was the one to almost everyone -- defense counsel, prosecutors, and even reporters. The relief was granted by the 9th because of IAC. Trial counsel requested an instruction taht said, in part, that a defendnnat can be convicted on an accomplice's tetsimony alone. The instruction stated that it must be treated carefully, but it was up to the jury. This comports with federal law, but was incorrect as to Idaho law. There was no strategical reason for this request, and was detrimental. This is a pre-AEDPA case, and so the standard is relaxed. The 9th found it prejudicial.

Anderson v. Terhune, No. 04-17237 (11-8-06). "I plead the Fifth." We know what that means. The 9th (district court judge Hogan joined by Kozinski) holds though that the state court's finding that it was "ambiguous" in context was not unreasonable. The petitioner was being interrogated for the murder of his friend. He was asked a series of questions, and when queried about his drug use, he said "I plead the Fifth" and the police officer asked "What is that?" and continued questioning. The 9th reasoned that the "Fifth" was only about the drug use, and not other matters. The petitioner seemed to evince no reluctance to talk about other matters, and had told the police he didn't want to talk about other matters. This ambiguity as to what the Fifth pertained to, and the context, did not make it an invocation of rights. Vigorously dissenting, McKeown argues that a more "pristine" invocation could not be imagined. The stating of the "Fifth" should have been clear, and that it is sophistry, and a misreading of Davis, to hold that it is ambiguous.

Monday, November 06, 2006

Case o' The Week: Latin King gets royal treatment by Ninth, US v. Mendez

In a great opinion that has the courage to bring a dispassionate analysis to gang issues, the Ninth rejects gang affiliation as a basis to expand interrogation beyond the scope of an traffic stop. See United States v. Mendez, __ F.3d __, 06 Cal. Daily Op. Serv. 18019 (9th Cir. Oct. 30, 2006), opinion available here.

Players: Impressive win by AFPD Michael Gordon of Jon Sand’s Phoenix office.

Facts: Mendez’s car was stopped by Phoenix gang cops for a tag violation. Id. at 18023. While they ran his California I.D., the cops patted Mendez down and noticed a gang tattoo on his hand. Id. at 18025. When they asked where he was from, he responded, “Latin Kings” – a Chicago gang – but that he’d left the gang and came to Arizona to turn his life around. A cop followed up and asked about his priors: Mendez had done eight years in an Illinois prison. Id. at 18026. They then asked him if there was a gun in the car. Mendez admitted there was one in the door handle. Id. The defendant entered a conditional plea to § 922(g), and then appealed the district court’s refusal to suppress.

Issue(s): “Mendez does not contest the legality of the initial traffic stop. Instead, he argues that the officers’ unrelated questioning and extended detention violated his Fourth Amendment rights because (1) the officers did not observe additional particularized, objective factors sufficient to create reasonable suspicion to justify interrogating him about matters beyond the purpose of the stop . . . .” Id. at18027.

Held: “We hold that, because the fact of gang membership is not sufficient to generate a particularized, reasonable suspicion of criminal activity, Det. Jaensson was not justified in expanding his questioning of Mendez to topics beyond the scope of the traffic stop. Even if the officers could also have considered that Mendez had once served a prison sentence, this information, either alone or in combination with the information regarding gang membership, does not give rise to the requisite type of particularized suspicion necessary to expand the scope of the interrogation.” Id. at 18045.

Of Note: The new law – or new language – in Mendez is Reinhardt’s and Paez’s flat rejection of gang affiliation as a factor that justifies interrogation beyond the scope of the traffic stop. It is one of the rare cases of late that acknowledges that gang affiliation does not destroy Fourth Amendment protections: “[t]he fact that an individual is or was a gang member does not by itself generate the sort of particularized and legally relevant suspicion that the Fourth Amendment requires.” Id. at 18032.

The real issue, however, is whether the majority engaged in “divide and conquer” – dinging each factor supporting the search in turn, rather than looking at the totality of the circumstances (as dissenting Judge Tallman grumbles). Reinhardt, however, carefully rejects the two factors supporting the search – gang affiliation and prior convictions – together, hopefully staving off any further review of the case. Id. at 18039.

How to Use: This is a good Fourth Amendment case, and a great gang case. Too many Fourth Amendment decisions use gang affiliation as an (unstated) proxy for probable cause. Judge Reinhardt explains that gang affiliation may raise a “generalized or unspecific suspicion that he is associated with criminal types and perhaps he has engaged in criminal activity himself . . . .” Id. at 18031-32. That does not, however, generate particularized suspicion required by the Fourth Amendment. Id. Moreover, gang affiliation does not create a reasonable inference that criminal activity is “afoot” – that is, that a crime is underway at the time of the search. Id. at 10833. This dispassionate – and persuasive – reasoning about the significance of gang affiliation bears quotation in any Fourth Amendment challenge involving gang members.

For Further Reading: Latino gangs hold an equal fascination for law enforcement and academics. A not terribly sympathetic – but well-documented – analysis of Southern California Latino gangs can be found here. By contrast, a more . . . “sympathetic” web site gives a comprehensive overview of Hispanic gangs in Los Angeles County, along with pictures of many of the graffiti symbols. See "streetgangs" webpage here.

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


Friday, November 03, 2006

Plascencia v. Alameida, No. 05-56458 (11-3-06). The 9th (Trott, Reinhardt, and Robart) affirm a denial of a habaes. the petitioner shot another woman after an ongoing dispute, and did it in front of the victim's kids. She got 50 years to life. In post-conviction, she argued that her counsel was ineffective in his cross-examinations of the state's jailhouse informants. The 9th didn't think so, stressing all the good things the defense counsel did in exposing motive and inconsistencies, and how he argued it. There was no IAC. The 9th also found that there was confrontation violation in the shortening of other cross-examinations, finding that the points were made, and the witnesses pretty much discredited. The conviction can't be pinned on failure of counsel under Strickland.

Nath v. Gonzales, No. 05-16557 (11-3-06). The 9th (Merritt, joined by Hug and Paez) grant the petition. The petitioner had sustained a conviction of possession of a controlled substance. he went back to state court, had it vacated, and entered a new plea to transporting, which is a non-aggravated felony because of the Taylor categorical approach (round criminal conduct that doesn't quite fit into the square hole of an aggravated felony). The BIA and district court had placed the burden on the petitioner to show that the vacation was on the merits or procedure, and not just to avoid immigration. The state court had just written that it was for "good cause." The burden rested with the state to show that the vacation was merely to achieve an immigration result. The 9th also held the new plea had to considered on its own merits and not as subterfuge.

Lyle Denniston of SCOTUSblog provided the following description:

The Supreme Court agreed on Friday to decide whether a criminal sentence that is within the federal guidelines is to be treated as reasonable, and thus valid. It also said it would rule on whether a sentence below the guideline range is reasonable. It accepted for review two cases on an issue that has led to a multitude of rulings in lower courts, producing a conflict at least on key aspects of that question.

The Court will hear Claiborne v. U.S. (06-5618) and Rita v. U.S. (06-5754), with oral argument probably in February. In Claiborne, the Court will examine whether a sentence below the guideline range is reasonable, and whether a sentence that varies substantially from the guidelines can only be imposed in extraordinary situations. In Rita, it will decide whether a sentence within the range is reasonable, whether such a sentence may be presumed to be reasonable, and whether such a sentence may be imposed without full analysis by the judge of factors that might justify a lesser sentence.

The Court has been asked repeatedly, since its U.S. v. Booker decision in 2005 that upheld the federal Sentencing Guidelines as long as they are advisory only, to rule on the meaning of a new appellate review standard that Booker laid out. Prior to that decision, federal law reinforced the mandatory nature of the guidelines by limiting review on appeal. Booker said that, from then on, appeals courts would review sentences for "reasonableness."In rulings since then, six federal appeals courts have ruled that, if a sentence is within the Guideline range, that is presumed to be reasonable on appellate review.

Four other appeals courts have disagreed. The Solicitor General had repeatedly urged the Supreme Court to bypass the issue for the time being, arguing that Booker was so recent that it would be premature to go into the issue promptly.At its private Conference Friday, the Court had before it a long list of cases on the issue. From those, it chose the Claiborne and Rita cases, presenting an array of specific questions on the core issue of reasonableness. The Claiborne case is from the Eighth Circuit, Rita from the Fourth Circuit. The Solicitor General opposed review in both.