Thursday, December 28, 2006

Case o' The Week: Ninth Keeps Probation's Secrets, Baldrich

New Judge Sandra Ikuta (left) isn't bothered by secret Probation sentencing recommendations in United States v. Baldrich, __ F.3d. __, Slip. Op. 19981 (9th Cir. Dec. 27, 2006), opinion available here. This decision is out-of-sync with the modern (enlightened) practice: seems the majority of 9th Circuit district courts routinely disclose full PSRs (including recs) before sentencing.

Players: Hard-fought appeal by L.A. AFPD Davina Chen.

Facts: Baldrich pleaded open to six counts of bank robbery the day before trial. Id. at 19985. District Judge Otero refused to disclose the “confidential” PSR recommendation at sentencing, though he described it and went below the recommended high-end. Id. at 19986. The court also refused to give the third acceptance offense-level reduction without the government’s recommendation. Id. [Note: Amended Guideline § 3E1.1(b) permits the government to decide whether to move for the offense-level reduction for acceptance of responsibility].

Issue(s): “On appeal, Baldrich raises two challenges to these rulings. First, he argues that the district court violated his right to due process at sentencing by denying his motion to disclose the probation officer’s confidential sentencing recommendation. By the same token, Baldrich argues that Rule 32(e)(3) of the Federal Rules of Criminal Procedure is unconstitutional to the extent it allows the court to withhold the recommendation. Second, he argues that the district court’s denial of his motion to reduce his offense level under section 3E1.1(b) of the Sentencing Guidelines violated his constitutional rights to proceed to trial and to effective assistance of counsel.” Id. at 19985.

Held: “We reject Baldrich’s first argument because the district court’s compliance with Rule 32’s requirement to disclose factual information relied on in sentencing satisfies the defendant’s due process rights. See United States v. Gonzales, 765 F.2d 1393, 1398-99 (9th Cir. 1985). We reject Baldrich’s second argument because the incentive provided by section 3E1.1(b) to plead guilty in a timely manner did not violate Baldrich’s constitutional rights. See United States v. Espinoza-Cano, 456 F.3d 1126, 1137-38 (9th Cir. 2006).”

Of Note: Why is full disclosure of the PSR still an issue? Central District AFPDs report that eighteen of the twenty-two courts there disclose the full PSR, including the recommendations. The Northern, Eastern and Southern Districts of California all have full disclosures, as do the districts of Arizona and Oregon. The four holdout judges in LA should learn from their more enlightened brethren. (A little dicta nudge from the Ninth along those lines would've helped -- where's Tashima's helpful concurrence encouraging disclosure?).

That cursed third acceptance point issue is still hanging around: here, Judge Ikuta relies on Espinoza-Cano to reject constitutional challenges to the fox's control of the henhouse. A petition for rehearing of Espinoza-Cano was filed on August 18 and has yet to be decided – is the Ninth ever going to get around to correcting that awful opinion?

How to Use: Baldrich is an admirable fight on bad facts. First, the narrow holding of the case is that on these facts, there was no due process violation from non-disclosure. The panel reviewed the PSR and concluded that there were no facts that hadn’t been disclosed to the defense – plus the district court orally disclosed the recommendation at sentencing, and low-balled it! Id. at 19991.

On the third acceptance level issue: the defendant waited until to see the whites of the jury’s eyes before pleading – hard to make an equitable argument about losing that third acceptance point, since the government obviously had to prepare for trial. In other words, the dual holdings of Baldrich should be read in the context of these narrow facts – this is not a sweeping opinion announcing new rules.

For Further Reading: Judge Sandra Ikuta is one of the newer Bush appointees, and is replacing Judge Browning. She was confirmed on June 19, 2006. See nomination article here. A former Kozinski and O’Connor clerk, she’s a Cal Bear (Phi Beta Kappa) and UCLA Law alum. Id. She also has a Masters in Journalism from Columbia. Id. She is, safe to say, the only former editor of a marital arts magazine – “Inside Kung Fu” – now on the appellate bench. See article here.

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



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