Thursday, March 29, 2007

US v. Howard, No. 03-50524 (3-27-07). Chains. Marlowe was weighted down with them in A Christmas Carol, but that was after his conviction and sentence. Chains have been rattled, broken, and sung about. The chains here concern pretrial detainees at their initial appearance. On an interlocutory appeal, the 9th (Schroeder) first decides they have jurisdiction because the issue comes up at a point that would later evade review, and it isn't moot. On the merits, the 9th holds that there was adequate justification to allow such shackling, even for first time appearances, because of safety and security. This time the government provided evidence which it didn't in its last go-around (and which is why the previous order has been withdrawn).

US v. Almazan-Becerra, No. 05-10056 (3-29-07). The 9th remands for resentencing in a 1326 case because of various adjustment issues relating to aggravated felonies. The court and government erred in giving aggravated felony adjustments for state (California) prior convictions that could, under the categorical appraoch, be for possession of drugs and not selling.

US v. Jackson, No. 05-30058 (3-29-07). This is "travels in foreign commerce" and engages in Illicit sex case under 18 USC 2423(c). The defendnat left the US in 2001, stayed in Thailand for a couple of months, and then moved permenantly to Cambodia. He never reeturned to the US, and was going to apply for Cambodian citizenship. He had his US Passport in late June 2003 when he engaged in sex with underage children. Cambodia arrested him, expelled him, and the US took jurisidiction and flew him home and charged him. The district court dismissed based on a statutory interpretation that defendant's travel and acts were one element, and that the travel, being complete in 2001, rendered the statute inapplicable. The 9th took a different tact -- although with the same result. The 9th recognized that the travel in foreign commerce and act was two separate elements. The 9th looked to US v. Clark, 435 1100 (9th Cir. 2006) for the history and review of the 2423(c) statute against constitutional challenges. This case differs because the travel occurred before the statute was enacted. The government argues that the travel could occur, and then the act, and the act would bring it within the ambit of the statute. 9th sidesteps the ex post facto question by using statutory interpretation to hold that Congress only proscribed the the conduct of an individual who "travels in foreign commerce" after the enactment. The defendant here, after a long discussion as to the definition of what is traveling and that present tense use of "travels" , was found not to have been travelling. The statute does not apply to him then.

Congratulations to AFPD Brian Tsuchida of W. D. Wa. (Seattle).

Friday, March 23, 2007

Barajas v. Wise, No. 06-15494 (3-23-07). A word to the Wise, the confrontation clause still exists. The 9th (Bright, joined by D. Nelson and Berson) hold that the state must turn over an informant's present and former addresses for purposes of cross-examination unless there are specific reasons that a court finds warrant non-disclosure. Here, the petitioner was convicted of conspiracy to sell heroin based on the testimony of an undercover informant. That was the basic evidence. The state's refusal to provide where the informant had been plying her trade was unreasonable under federal law. (Perhaps the specter of the Tulia Texas informant misconduct provided context?). This is a very good opinion, with the 9th, courtesy of a visiting judge, providing a Bright-line.

US v. Boyd, No. 06-50051 (3-23-07). The 9th concludes that we live in a Hobbs-ian world ("nasty, brutish, short") at least when a robbery has a de minimis affect on interstate commerce. The defendant robbed a Cash Plus at gunpoint, and Cash Plus had an ATM and Western Union transfer site. These, plus other transactions, satisfied the jurisdictional trigger. The 9th made a point of stressing that the "substantially affects" interstate commerce language of Lopez does not displace the de minimis test at least in a Hobbs Act prosecution.

Case o' The Week: Good Case on Bad Acts, Rendon-Duarte & FRE 404(b)

The Ninth delivered an interesting opinion with mixed results on FRE 404(b) {bad acts evidence}, and on using "reckless" conduct to establish a USSG § 4B1.2 "crime of violence" predicate. United States v. Rendon-Duarte, __ F.3d __, No. 06-30200, Slip. Op. 3314 (9th Cir. Mar. 21, 2007) , decision available here.

Players: Opinion by ND Cal. District Judge Schwarzer.

Facts: Anchorage cops saw Rendon-Duarte buy what they thought was a handgun. Slip op. at 3345. They then saw him get into the passenger seat of his car, lean over, and appear to move something on the floor. Id. Rendon-Duarte’s girlfriend drove the car away; she was stopped by the cops. Id. The cops searched the car and found two loaded handguns under the car’s floor carpet in front of the passenger seat. Id. At trial, the girlfriend denied ownership of the guns. Id. Over defense objection the district court admitted FRE 404(b) [bad acts] evidence of two incidents where Rendon-Duarte had been in cars that had contained guns. Id.

Issue(s): “On appeal, [Rendon-Duarte] challenges the district court’s admission of evidence under Federal Rule of Evidence 404(b) of two prior incidents of gun possession to prove intent, knowledge and lack of mistake.” Id. at 3344.

Held: “The material fact at issue here was whether Rendon-Duarte had knowledge of and intent to possess the weapons found in his vehicle. The evidence of the prior acts established only that weapons were found in the cars he drove or rode in . . . . Because there was no evidence that Rendon-Duarte had knowing possession of the weapons at issue here, the admission of the prior-act testimony was an abuse of discretion.” Id. at 3347. [But, the panel continues to explain, the error was harmless given other evidence in the case]. Id. at 3348.

Of Note: As Jon Sands astutely notes in his earlier blog, Rendon-Duarte is interesting in its refusal to sanction the use of prior gun incidents as 404(b) evidence in a Section 922(g) trial. The case is troubling, however, for its finding that Alaskan “Assault in the Third Degree” is a categorical crime of violence under Section 4B1.2(a) of the guidelines. Id. at 3348. There was no objection to this prior at sentencing, so the panel undertakes plain error review. The panel held that the sentencing court plainly erred in relying solely on the factual description in the PSR to find the prior was a crime of violence. Id. at 3349. The Court salvages the sentence, however, with the cursed “affects substantial rights” prong of the Olano plain error analysis. Id. at 3349-50.

The Court in Rendon-Duarte (too) briefly dismisses the defense argument that reckless conduct should not qualify as a Section 4B1.2(a) “violent” offense. Id. For Rendon-Duarte, this meant a bump in the gun guideline. For another defendant, however, this casual embrace of “reckless” conduct as a § 4B1.2(a) “crime of violence conviction could trigger the draconian Career Offender guidelines. A more thorough (though ultimately disappointing) discussion of reckless conduct and Section 4B1.2 can be found in United States v. Rutherford, 54 F.3d 370, 373-77 (7th Cir. 1995).

NB: Be sure to distinguish 18 USC § 16 “crimes of violence” (the definition used for aggravated felonies in immigration cases). That’s a different definition altogether from the guideline definition as issue here, and “reckless” conduct doesn’t cut it in the Section 16 context. See United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001).

How to Use: When faced with 404(b) evidence, flaunt the holding of Rendon-Duarte: if the present “material fact at issue” is the defendant’s knowledge, the prior bad acts have to show knowledge to be admissible. In this case, that meant the prior bad acts had to involve knowing possession of a gun – and they didn’t. This reasoning should apply to a drug case: a prior incident where a mule was caught around drugs shouldn’t be admissible in a later smuggling trial to show knowledge (at least, those bad acts wouldn’t be admissible under the logic of Rendon-Duarte).

For Further Reading: FRE 404(b) – “Bad acts” – is a bad rule. Few jurors can resist convicting someone who has had previous brushes with the law (whether the defendant’s been convicted or not), and in the real world everyone knows that FRE 404(b) limiting instructions are useless.

Maybe appellate courts are becoming more sensitive to the government’s routine abuse of this rule? AFPD Bill Theis posts a very thoughtful entry on the Seventh Circuit blog that describes an encouraging decision from his Circuit: United States v. Keefer Jones. Blog available here. As Bill speculates, maybe there’s a (welcome) new direction for 404(b)?

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


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Thursday, March 22, 2007

US v. rendon-Duarte, No. 06-30200 (3-21-07). An interesting and troubling opinion. The interesting part concerns 404(b); the troubling part is sentencing and a categorical intepretation. The defendant was charged with being a prohibited possessor. Guns were found on the passanger side of the car in which he was the passanger; his girlfriend was driving. She first said the guns and car were hers; at trial, she changed her story and said they were defendant's. The government, seemingly to guild the lilly, introduced two prior instances of guns being found in cars in which the defendnat was driving. Once stashed in the roof; the second time in the car after an accident. The 9th held that such 404(b) introduction was error because the prior incidents did not show "knowing" possession. The guns were just found in the car he was driving or had driven! The "knowing" element was missing, and not connected here. The 9th held it was harmless because the defendant had bought the guns earlier that day, put them in his waistband, gotten into the car, and the guns were found on his side. Oh yes, he gave a false name and D.O.B. to the police and tried to get his girlfriend to say the guns were hers. (A question raised by another summary is whether the case would have differed if the character evidence had been constituionalized, i.e., the burden of proof lessened). In sentencing, the defendant was found to have a prior crime of violence, being an assault in the third degree. The review was by plain error, where the 9th held the statute's language abou physical assault or fear of settled the matter, although glossing over the "reckless" prong, and the acts that could have caused that.

Wednesday, March 21, 2007

Comer v. Schiro, No. 98-99003 (3-15-07). The 9th (en banc and per curiam) ruled that because petitioner Comer "is competent and has voluntarily decided to waive further proceedings, we grant his pro se motions to waive further proceedings, to terminate representation by habeas counsel and for dismissal of his appeal." The dissent by Pregerson sums it up: "The due process violation occurred at the sentencing hearing held by the Arizona trial judge who imposed the penalty of death on a man who was naked, bleeding, shackled, exhausted and semiconscious." Pregerson continues: "Comer wants to die. Arizona wants to execute him. There is little question that this will happen. Judge Ferguson's [panel] opinion only requires that the sentence of death be pronounced to an understanding human, not a discarded piece of flesh."

US v. Layu, No. 05-10815 (3-19-07). The 9th rejects a commerce clause challenge to 922(a)(5)(alien in possession). The 9th quickly disposes of the "affecting commerce" argument (raised to perserve the issue), but spent more time on whether the defendant was here illegally, before adopting a definition from the friendly ATF that is broad in requiring nonimmigrant or legal status. The 9th remands on a sentencing issue.

US v. Nasser, No. 05-10466 (3-20-07). A 6'9" Border Patrol agent stands by a deserted road, with patrol cars pulled off to one side, lights flashing, and two other vehicles also pulled over, with individuals under arrest. A car comes up on a two-lane highway, and the agent shines a light into the windshield, and keeps it there as the car slows, goes past, and 15 feet away, stops. The agents then run up, and yank the keys away and find illegal aliens. Was this voluntary? The 9th thinks it is (Kleinfeld joined by Trott). To the 9th, the driver (an Iraqi with illegal aliens) voluntarily stopped, and was not pulled over, or seized. The 9th assumes, one guesses, that the car should have just driven on by. In dissent, Ferguson decries this finding, arguing that the car was stopped and the driver seized by these actions and the yanking of keys.

Saturday, March 17, 2007

Ode To St. Patrick

As a child I wished I could find a way
To skip the joys of St. Patrick's Day:
Chauvinism rampant and coercing green,
To celebrate beer and Gaelic spleen.
That merry robed Pat, with uplifted truncheon,
He whacked scaly wildlife into extinction.
But history forced me to change my view,
To realize that I should celebrate too.
The Fifth Century was hard for a Romanized Celt,
Captured by bandits, into slavery dealt.
He labored, cold and hungry, in bondage pastoral,
Learning hard lessons how slavery's immoral.
Transformed to live a more spiritual way,
He heeded a voice: you must run away.
In his fugitive life, the dangers abounded,
Til by sea from Ireland at last he absconded.
In ravaged Gaul he developed his rough-hewn creed,
Then to Eire he returned to help people in need.
In a time when Druids played the executioner's song,
He taught capital sacrifice was morally wrong.
A lone voice against slavery, he sought abolition;
It would be centuries before others joined in his mission.
A non-violent warrior, injustice he fought,
To end the oppression that was Ireland's lot.
So to this man we should toast, esteem we should render,
To the patron saint of the public defender.

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

Friday, March 16, 2007

Case o' The Week: "Argument after the Fact" Saves Search: Lopez and Fourth Amendment

Visiting district judge Louis Pollack, E.D. Pa. (left) authors a troubling Fourth Amendment decision that salvages a bad search with an "accessory after the fact" "argument after the fact" on appeal. United States v. Hosvaldo Lopez, __ F.3d __, No. 05-30347, Slip. Op. 2913 (9th Cir. Mar. 12, 2007), decision available here.

Players: Hard fought case by AFPD Bryan Lessley of Eugene Oregon.

Facts: State cops were interviewing a witness in a drug case. Slip. Op. at 2918. A tall, thin Hispanic man drove up in a Ford, pulled a gun on the cops, tried to fire, then drove away. Id. The cops later found the abandoned Ford in a department store parking lot; eight hours later another car approached it. Id. at 2919. A woman got out and drove the abandoned Ford away; a Hispanic male drove the other car, left at another mall exit, and then followed the woman down an adjacent street. Id. Cops stopped the Hispanic male who had dropped off the woman (this defendant, Lopez), took him to a police station, and determined that he wasn’t the attempted shooter. Nonetheless, at the station they got Lopez’s consent to search car that he had been driving. The cops found money, drugs and a gun. Id. at 2920. The district court denied the suppression motion. Id. at 2920.

Issue(s): “[T]he critical question before us is whether the police had probable cause when they questioned Lopez at the police station and obtained written permission to search his car.” Id. at 2925.

Held: We think that Lopez’s role in bringing a driver to rescue the Ford Focus, taken in conjunction with his apparent effort to follow the Fort Focus out of the parking lot, could properly have been perceived by a police officer as suspicious activity . . . . We therefore find that the police had probable cause to believe Lopez was an accessory after the fact, under 18 USC § 3, to the attempted shooter’s crime, and that the police did not act unreasonably in holding him under arrest without a warrant while they investigated further.” Id. at 2934.

Of Note: Accessory after the fact? The government did not argue this in the district court, slipped it into appellate briefs, and the theory was barely mentioned at oral argument. Yet this – dubious – theory saves the day. Read visiting district Judge Pollack’s analysis on the issue: he assures us that, “while not of overwhelming evidentiary weight,” a “reasonable” officer could assume that dropping someone off in a department store parking lot is probable cause. Id. at 294. Not a particularly reassuring assurance.

Equally bothersome is Judge Pollack’s use of Lopez’s (entirely constitutional) silence at arrest to prop up this “accessory” theory. Id. at 2933.

Yet another bad aspect of the decision is its heavy reliance on the fact that Lopez followed the woman as she drove the Focus away – yet this was apparently a busy, one-way street, and there was no other choice when exiting the parking lot. Factual faux pas like these are inevitable when the government sandbags with new “creative” P.C. theories on appeal.

District Judge Pollack is best known for his masterful, persuasive, well-reasoned and lengthy opinion rejecting fingerprint “science” – a decision which he famously reversed six weeks later. (He explained in his second opinion, “I disagree with myself.”) Hope for a similar change of heart in Lopez: an en banc petition is underway.

How to Use: For better or worse, Lopez is laden with language on probable cause for arrest: it is likely to be cited heavily for the black-letter law in future Fourth Amendment decisions. The case does reject the government’s crazy theory that there was probable cause for arrest on the theory that the (short) Lopez was the (tall) shooter from earlier in the day. Id. at 2928. The opinion also dances carefully around state officers’ ability to arrest for federal accessory charges. Id. at 2931 & n.10. Differences in federal and state accessory law didn’t happen to matter in this case, so that issue was moot here – but it might be important in future Fourth Amendment litigation.

For Further Reading: For an interesting discussion of Pollack’s infamous fingerprint reversal (of himself) see “Flaws in Forensic Science,” available here.

For a broader view of the problems with fingerprints generally, see AFPD Rob Eptsein’s excellent article: Fingerprints Meet Daubert: The Myth of Fingerprint “Science” is Revealed,” 75 S. Cal. L. Rev. 605 (2002), available here.

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


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Thursday, March 15, 2007

US v. Lopez, No. 05-30347 (3-12-07). The defendant here was arrested as he fit the description of a suspect who tried to shoot at police. He was driving a car that was supposedly connected with the car driven by the suspect. Upon arrest, it was found he was not the suspect. Yet, the 9th held that the police had probable cause to arrest defendant as an accessory to another crime (hindering or obstruction), and so, while in custody, defendant's consent to the search of his car was good. The search yielded drugs and a gun. The denial of the suppression motion was affirmed.

Robbins v. Carey, No. 05-17131 (3-12-07). In the absence of a request from an unrepresented petitioner, the district court is not required to consider, sua sponte, the option of staying and abeying a habeas petition that is "mixed" with both exhausted and unexhausted claims. The decision is controlled by Plier v. Ford, 542 US 225 (2004) and Rhines v. Weber, 544 U.S. 269 (2005).

US v. Zolp, No. 05-50882 (3-13-07). The 9th (Smith joined by Kleinfeld and Fisher) vacate and remand a sentencing because the court calculated the value of loss erroneously. The defendant was involved in securities fraud (the old "pump and dump" scheme, where stocks are artificially extolled, and then sold before the truth comes out). The company here was New Energy. In calculating loss, the court, at the urging of the government, valued the stocks as "worthless" after the fall. The loss was the difference between what the stocks were sold for and their worth, which the court valued at zero. The 9th concluded that the value was not zero, because the company had some value. The finding of worthlessness was clearly erroneous. The 9th remanded, but also held that the substantial assistance motion was properly taken as a 3553 factor for a reasonable sentence and did not have to be in the framework of the guidelines.

Congrats to AFPD Elizabeth Newman (C.D. Calif -- Los Angeles) for the sentencing win.

Summers v. Schriro, No. 05-16650 (3-13-07). The 9th (Fletcher joined by Rawlison and Selna) held that under AEDPA, Ariz. R. Crim. P. 32 review of guilty pleas was an "of right proceeding" and a form of direct review. This means that AEDPA's one year statute of limitations did not begin to run until the conclusion of the Rule 32 proceedings and the review.

US v. Parry, No. 05-30522 (3-14-07). The 9th (Graber joined by Reinhardt and Lew) held a prior predicate conviction, for ACCA purposes under 922(g), is determined by the statutory maximum of the statute and not by the guidelines. This was an Oregon case, although the 9th looks to precedent in US v. Murillo, 422 F.3d 1152 (9th Cir. 2005) where, under a Washington statute, the 9th concluded that a stat max is the one set by statute and not by guidelines in a 922(g) case, even under Blakely.

Friday, March 09, 2007

Case o' The Week: So Long, Sweet Sixteen - Fort en banc petition denied

In a very disappointing order, the Ninth refused to take en banc United States v. Fort, et al., 472 F.3d 1106, 1107 (9th Cir. 2007), Ord. denial of en banc available here. The discovery ramifications from Fort will long haunt the Ninth, but the case presents defense opportunities as well.

Players: Admirable amicus fight by San Diego F.D. Chief Appellate Attorney Steve Hubachek – with compelling stats provided by Nine Defenders and hundreds of AFPDs across the Ninth Circuit.

Facts: As reported in greater depth in an earlier memo, available here, Fort is a capital case where the government refused to give discovery despite the district court’s order. Judge Graber (right) wrote that a state officer (a cop) who works on a case long before a federal investigation begins is an “agent” of the federal government, and that this cop’s police reports need not be disclosed to the defense under F.R. Crim. Proc. 16(a)(2). See United States v. Fort, 472 F.3d 1106, 1107 (9th Cir. 2007). Judge W. Fletcher (left) dissented – persuasively, and vigorously. Id. at 1122.

Issue(s): En banc?

Held: No. Judge Wardlaw (right) writes a very thoughtful dissent from denial, joined by Judges Pregerson, Reinhardt, W. Fletcher, Fisher, and Paez.

Of Note: As noted in the earlier memo, Fort is a Big Deal, and this en banc denial is a bitter loss. (Nine Defenders join the amicus, and this isn’t an "issue of exceptional importance" worthy of an en banc call?) There’s now talk of a cert. petition, and the Rules Advisory Committee should take a look at this novel approach. Until then, there’s much mischief to be made.

How to Use: Judge Wardlaw writes a great defense primer on the use of Fort’s -- unique -- interpretation of Rule 16. See Ord., 2006 WL 686615, *2 (Wardlaw, J., dissenting). Her dissent is a must-read, for Fort does much to “alter the landscape of criminal discovery.” Id. at *2. Here’s highlights:

1. Expansion of government agency: The Fort decision dramatically changes the Ninth’s approach to what constitutes a “federal agent.” Id. at *6. If local cops are now federal agents for the “work product” protections of Rule 16(a)(2), they are federal agents for the disclosure provisions of 16(a)(1) – and it doesn’t make a difference if the feds don’t physically possess the materials sought. Id. Also, a cop who is now a “federal agent” for Rule 16 is also a federal agent for Henthorn disclosure. AUSAs should now shoulder an affirmative duty to dig up dirt on their cop/agents and disclose them to the defense. Cite Fort prominently in your next motion. HenthornSee id. at *6; see also United States v. Henthorn, 931 F.2d 29 (9th Cir. 1990).

2. “Sauce for the Goose”: Those 538 white-collar defense attorneys working full time on Apple stock backdating? They should take a break and read Fort. Under Fort’s broad (odd) new definition of agency, a whole new slew of defense materials are now not subject to Rule 16 disclosure. See Wardlaw dissent at *6. A broadened agency theory for the government means less disclosure under Rule 16. Apply that same broad agency theory to defense materials subject to disclosure, and defense disclosure obligations shrivel.

3. Broadened Brady: Now that cops have been swept under Rule 16's wings, federal prosecutors have a duty to burrow for Brady/Giglio material among all the state files of their new “agents.” Preserve this discovery issue in every state-origin case; it’s a safe bet that we’ll see a nice percentage of later Brady reversals for non-disclosure of state Brady material. Id. *6.

4. Federalize state searches: Sloppy state searches got a pass under Crim Pro Rule 41 because cops aren’t federal agents – but no longer, under Fort. Revisit suppression challenges under Fort’s novel new cop-agent theory. Id. at *7.

5. Educate the district court: The big loser in Fort isn’t the defense – it’s the district court. Id. at *8. Explain to your federal judge that the Executive just took a big bite out of the district court's case-management power. Id. There’s nothing like Executive encroachment on Article III power to make a trial judge rethink his or her views on defense requests. (Requests, for example, like Rule 17(c) subpoenas for police reports. (Fort doesn’t touch Rule 17(c) subpoenas)).

For Further Reading:
White collar folks, wake up and beat the drums: you too will soon face Fort when looking for routine accountant, regulatory, or expert docs completed long before your federal case. See Wardlaw dissent. at *6; see also Linda S. Eads, Adjudication by Ambush, 67 NCLR 577 (1989).

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


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Thursday, March 08, 2007

Irons v. Carey, No. 05-15275 (3-6-07). The 9th reverses a district court's granting of habeas relief. The district court had found that the state denied parole for the petitioner, serving a sentence for second degree murder, on insufficient grounds. The 9th (a reluctant Reinhardt concurred reluctantly by Noonan and Fernandez) hold that the state supreme court had ruled that the nature of the offense (cruelty) could be a basis for denying parole, even when all the other rehabilitative factors were positive. This factor was upheld by the 9th in Sass as not violating due process. The 9th felt that it was bound and so reversed relief under AEDPA as there was an adequate state ground. All the judges filed concurrences in which AEDPA is decried. Noonan especially writes a jeremiad against congressional intent to act as judges under the structures. he is bound by precedent and the court's rulings, so he can only gnash his teeth. Reinhardt and Fernandez also weigh in.

US v. Baza-Martinez, No. 05-10282 (3-6-07). The 9th denies an en banc and rehearing petition challenging the panel's decision holding, under a categorical analysis, that a North Carolina felony for "taking indecent liberties with children" is not a crime of violence. In a spirited dissent, Graber joined by Kozinski, O'Scannlain, Gould, Tallman, Bybee, Callahan, and Bea (it was a close call) rail against the decision, arguing that it goes against precedent, common sense, common law, other circuits, and the Supremes. The dissenters chide the majority for following a state appellate decision a decade old that focuses on the victim's impact and not the offender's intent. (The irony of course is that this following a state's "reasonable" decision).

Hoffman v. Arave, No. 02-99004 (3-6-07). The 9th denies a petition for rehearing and en banc challenging a panel's holding of IAC. Bea dissents, joined by Kozinski, O'Scannlain, Kleinfeld, Tallman, Bybee and Callahan, arguing that the panel's decision "has effectively written out of law the requirement that prejudice be pleaded and proved to meet the test for ineffective assistance of counsel." The panel had found IAC because counsel had advised against a life-saving plea agreement because counsel thought Idaho's death penalty scheme would be found unconstitutional because Arizona's had been found constitutionally infirm by the 9th. A year later judge sentencing was upheld by the Supremes in Walton (1990). (And then, over a decade later, and many executions later, Ring struck down Walton). The dissenters consider counsel's advice to take the risk not deficient nor prejudicial.

US v. Llewellyn, No. 06-30185 (3-7-07). The 9th (McKeown joined by B. Fletcher and Scwarzer) affirm a conviction for assault under an attempted battery theory. The defendant was at a VA hospital. He accused another patient of being a "snitch" (he had supposedly turned him in to a counselor because of a fear that he might relapse into drug abuse). The defendant spat at the victim patient. The government of course decided to prosecute and did so under the special maritime/territorial jurisdiction, and used 113(a)(5) as the offense of simple assault. Defendant was found guilty at a bench trial. On appeal, the 9th held that spitting was indeed a form of simple assault because it was a form of attempted battery. The focus is on the wilfulness of the defendant to inflict injury, or offensive touching, including spittle. Spitting is an offensive touching and therefore falls under the ambit of assault.

Sarausad v. Porter, No. 05-35062 (3-7-07). The 9th grants relief to petitioner because the state (Washington) instruction on accomplice liability was ambiguous, and this with other factors unconstitutionally relied the state of its burden. W. Fletcher wrote the majority, joined by Reinhardt. Reinhardt dissented though on the ground that the evidence of guilt itself was insufficient. Bybee dissents from the ambiguous instruction, railing against the majority for spinning the facts and not relying upon the state's interpretation of its instructions. (Ah, but see Baza-Martinez above when Bybee dissent from reliance on a state decision).

Thursday, March 01, 2007

Case o' The Week: Singing Vikings, Spam, and Search Warrants - Kelley

A very disappointing decision salvages a suppressed computer search for child porn -- despite little or no evidence that the defendant solicited child-porn e-mails discussed in the search warrant affidavit. United States v. Kelley, __ F.3d __, 05-10547, Slip. Op. at 2285 (9th Cir. Mar. 1, 2007), decision available here. (Justice O'Connor, left, sitting by designation).

Players: Case fought tooth & nail by ND Cal AFPD Elizabeth Falk.

Facts: First, Kelley’s AOL account was searched, then his home computer. Slip op. at 2289. The second (computer) search warrant is the subject of this appeal by the government. Police had investigated a child porn distributer in Germany. Id. Four e-mails on this German’s computer were addressed to an e-mail address associated with Kelley – and had child porn attachments. Id. Another investigation in Kansas revealed five e-mails to another Kelley e-mail address, with child porn attachments. Id. at 2290. In a courageous opinion, District Judge Phyllis Hamilton suppressed, explaining that the search affidavit didn’t explain how the Kelley e-mails ended up on the computers of the two traffickers. Id. at 2291.

Issue(s): “Kelley and the government agree that unwitting receipt of e-mail containing contraband will not support probable cause . . .The dispute centers on whether the [search warrant] affidavit is sufficient even though it lacks direct evidence that Kelley actually solicited the offending attachments.” Id. at 2293.

Held: “Since the district court’s decision in this case, this court has made clear that probable cause to search a computer for evidence of child pornography turns on the totality of the circumstances, including reasonable inferences. United States v. Gourde, 440 F.3d 1065, 1071 (9th Cir. 2006) (en banc). In this case, there is a reasonable inference from facts set out in the affidavit that Kelley was not an accidental recipient of emails with attachments containing illicit child pornography. As we conclude that it was fairly probable that child pornography Kelley willingly received would be found on his computer, we reverse.” Id. at 2289.

Of Note: Judge Thomas’s persuasive dissent explains how the majority abandons Ninth Circuit precedent, and dramatically lowers the showing required for a search warrant. Id. at 2301 (Thomas, J., dissenting). He complains, “We have never held – until today – that mere receipt of unsolicited pornographic material, without more, establishes probable cause to search a residence for child pornography.” Id. at 2301-02 (emphasis added).

He closes by warning of the impact of Kelley: “I can well understand the government’s motivation. Child pornography is a scourge on our nation. But every hour, millions of unsolicited and deceptively disguised emails are sent to innocent computer users. Lowering our standards of probable cause to permit government intrusion into private residences based solely on proof of mere transmittal of unsolicited email constitutes an unwarranted erosion of the Fourth Amendment.” Id. at 2305-06.

How to Use: Judge Rymer (joined by Justice O’Connor, sitting by designation) does leave open the “spam argument” for “different circumstances.” Id. at 2297. Her limitations on her new e-mail search warrant rule – such as they are – are crammed into one paragraph. Id. The defense bar will have to try to distinguish the “totality” of Kelley’s facts (e.g., multiple child porn e-mails to multiple e-mail addresses associated with one user) in the inevitable next case.

For Further Reading: Judge Thomas rattles off a list of authority documenting unwanted e-mails (spam) with child porn. See id. at 2301 & n.3 (Thomas, J., dissenting). He’s right: porn spam is “getting raunchier.” See Wired News article here. For example, hundreds of e-mails containing child porn were sent to unwitting users in Sweden. See article here.

The only bright spot in this grim opinion is Thomas’s explanation of the origin of spam: a Monty Python routine where “a group of Vikings in the restaurant insistently sing a chorus about Spam [the processed meat product], increasing in volume until other conversation is impossible.” Id. at 2301 & n.2. (See photo right). The dialogue for this classic sketch can be found on an Italian web site here. A video of the skit itself is here (with Japanese subtitles!)

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


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US v. Lopez, No. 06-10062 (2-27-07). Tough facts for the defense in this case. The police responded to 911 call about the defendant brandishing a gun and driving away in a van. The police pulled alongside the van, and saw the defendant lean over as if he was placing something under the seat. When the van stopped, defendant got out, refused commands in English and Spanish to stop, and ran. He was caught. While being subdued, a purse fell out that contained $2840.25 in cash, including 63 $20 bills. The defendant was found to be a previously convicted felon, and an illegal alien. Oh yes, he also explained that the money came from house painting and casino winnings and belonged to his wife. He couldn't corroborate any of this, nor give his wife's address. He also said something to the effect that"if you don't find the gun, you have nothing on me." Well, they did find the gun. It was under the passenger seat. They also found cocaine in various small amounts. Defendant said the van was his, but not the gun nor the drugs. The 9th found there was sufficient evidence to convict, for distribution because of the nature of the drugs, the amounts, and the money. An expert testified for the government that it fit a pattern. The court also committed no error in its instruction of "in furtherance" when it came to the gun. There was also no error in failing to sever the "illegal alien" charge and the firearm charge from the drug charges.

US v. Vartanian, No. 05-10581 (2-28-07). This is an appeal from tax fraud convictions. The appeal turns on whether the district court abused its discretion in dismissing a juror from service. The dismissed juror in this case -- Juror 7 -- was found to have engaged in inappropriate conduct: she was seen speaking with defendant's family, made a statement to defendant's sister that "things will be all right", called out to counsel and defendant in the cafeteria line "buy us some coffee too," and other conduct. The court also noted that she engaged in "bizarre" behavior like bombarding the court with questions and bringing chocolates to the court reporter and insisting that she take them. The court found that the juror had engaged in questionable behavior and that she should be dismissed for good cause. The 9th affirmed, noting that the dismissal was not based on her deliberations or stance, but on conduct outside the jury room, for which she had been warned, and which was corroborated by witnesses.

US v. Alvarez-Hernandez, No. 06-10284 (2-28-07). The 9th (Bybee joined by Kleinfeld and Whaley) held that in a 1326 sentencing, a drug sentence which was fully suspended and probated only gets the 12 level enhancement and not the 16. The district court had given the 16-level enhancement, finding that the sentence imposed was different from a sentence of imprisonment. The 9th looked to the 2003 Sentencing Commission amendments and stated that the plain language of the amendment made it clear that an imposed sentence was to be given the definition of a sentence of imprisonment, and that statutory construction had to prevail. This made a difference in sentencing, and so the case was sent back.

Congrats to AFPD Mike Powell, D. Nev (Reno) for the win.

US v. Sadler, No. 06-10234 (3-1-07). Fed. R. App. 4(b) is determined not to be jurisdictional in nature. Rather, this rule setting timeliness of notices of appeal is a claim-processing rule subject to forfeiture. Bottom-line: defendant still loses for late filing of appeal. The 9th (Berzon joined by D. Nelson, and concurred with by Bright) considers the nature of Rule 4(a) and (b). Rule 4(a) is civil, and even after the Supremes ruled that they might be mandatory claim processing and not jurisdictional, the issue is still open. The 9th holds that Rule 4(a) is jurisdictional as for civil, because Congress set the limits by statute. Rule 4(b) though has no statutory basis; only rule. Still, although it isn't jurisdictional, dismissal may be mandatory under a claim processing analysis, although it could be forfeited. It wasn't here because the government objected in its responding brief and moved for dismissal. The argument was not forfeited by waiting until the responding brief. The upshot is that while Rule 4(b) is not jurisdictional (bright line), its mandatory nature still results in dismissal if late. Bright's concurrence relates what it takes for forfeiture, and that it wasn't an issue here. Practice point: file that Notice of Appeal ASAP.

US v. Kelley, No. 05-10547 (3-1-07). The 9th considers probable cause in a warrant for searching a computer. The 9th emphasizes again that it is a totality of circumstances approach, looking at all the factors, and is not a bright-line analysis of certain requirements when it comes to computers and transmissions. Here, the district court suppressed the pornographic images because there were no affirmative steps to show that the defendant had intentionally received the nine photos. The evidence was that a known child porno contact had sent e-mail to defendant's addresses, and defendant had transmitted the e-mails on, with images. This was enough for Rymer, joined by Justice (Ret.) O'Connor, who hold that the evidence here indicates the defendant probably knew that it was porno, and willingly received it and sent it on. In dissent, Thomas stresses that precedent required an affirmative act, positive steps, that indicate that the recipient knew it was porno, and not just receiving and transmission. Given the Spam traffic, and the misleading headers, more would seem to be required than unsolicited receipt and transmittal.