Sunday, December 30, 2007

Case o' The Week: Ninth Gets "Cheek"-y with Tax Evasion Defendant, Cohen

One of the last decisions of '07 is a very good Tallman opinion emphasizing the right to a defense expert, and explaining the mens rea requirements in tax evasion cases. United States v. Lawrence Cohen, __ F.3d __, 2007 WL 4485629 (9th Cir. Dec. 26, 2007), decision available here.

Players: Good defense-expert decision by Judge Richard Tallman.

Facts: Cohen was an “acolyte” of recidivist tax protestor Irwin Schiff. Id. at *1. (Schiff's book is shown above left).

With Schiff, Cohen faced charges for assisting the filing of false tax returns. Id. The defense wanted to introduce the testimony of a shrink, who would have opined that Cohen suffered from a “narcissistic personality disorder” and that his “will was in the service of irrational beliefs.” Id. According to this expert, Cohen “did not intend to violate the law.” Id. The district court excluded the witness, holding that the expert “failed to explain ‘how the alleged mental disorders negate mens rea. Rather, his opinion merely explains or justifies Cohen’s conduct.” Id. at *7. Cohen was convicted. Id. at *1.

Issue(s): “Cohen argues that his conviction must be overturned because the district court wrongfully excluded the expert testimony of his psychiatrist who would have offered evidence of Cohen’s mental state.” Id. at *1. “The threshold issue is whether . . . [the expert’s] testimony would have assisted the tried of fact within the meaning of Rule 702. According to Cohen, [the expert’s] testimony would have bolstered the contention that Cohen had a good faith belief that he was acting in accordance of the law, thereby negating the mens rea element of 26 U.S.C. § 7206(2), which requires that a defendant ‘[w]illfully assist in the filing of a false return.’ See Cheek v. United States, 498 U.S. 192, 201 (1991) (holding that a defendant cannot be convicted of violating a federal tax law if he harbors a good faith belief that he was not violating any of the provisions of the tax laws).”

Held: “We agree, and we reverse Cohen’s conviction, vacate his sentence, and remand for a new trial.” Id.

Of Note: Judges Tallman and Ikuta – two-thirds of the Cohen panel – aren’t known as great defense allies. What gives with this good decision? The opinion hews closely to two great precedents: Cheek, 498 U.S. at 201, and United States v. Finley, 301 F.3d 1000, 1007 (9th Cir. 2002). As noted above, the Supremes in Cheek held that the government has to negate “a defendant’s . . . claim that because of a misunderstanding of the law, he has a good-faith belief that he was not violating any of the provisions of the tax laws.” Cheek, 498 U.S. at 202. In Finley, the Ninth reversed a tax conviction when – like here – the defendant fell under the sway of a tax protestor, and wasn’t allowed to call a shrink to explain why he clung “doggedly to [his] beliefs even in the face of overwhelming contradictions.” Cohen, 2007 WL 4485629, *9. Cheek, Finley, Tallman and Ikuta make Cohen an unlikely en banc candidate.

How to Use: As noted above, the expert would have opined that Cohen “did not intend to violate the law.” Id. at *9. That’s verboten - a shrink can’t opine that a defendant didn’t have the requisite mental state. Id.; FRE 704(b). Cohen acknowledges this problem, but helpfully explains that this should not have barred the expert’s testimony. Id. at *10. “[T]he best way for the district court to have insured the exclusion of the potentially inadmissible aspects of [the expert’s] testimony was not to bar him from testifying altogether, but to sustain the government’s objections to particular questions likely to elicit inadmissible evidence under the rule. The district court also could have discussed with the parties before he testified the limits that would be imposed on the scope of [the expert’s] testimony.” Id. Cohen’s useful for the proposition that a defense expert cannot be excluded simply because parts of his testimony are inadmissible or irrelevant; the solution is instead to address specific problematic questions.

(A related lesson is to be very careful with a shrink’s testimony before making a proffer– it would have been better in this case for the expert to have avoided opinions that clearly violated FRE 704(b) in his report).

For Further Reading: Cohen has sparked much interest among bloggers. For a taste of a law prof's sour grapes (he was on the government's early briefing), see Brian Galle's comments here. More mens rea analysis (and some interesting gossip on other details of the case) can be found here.

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


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Wednesday, December 26, 2007

U.S. v. Cohen et al, No. 06-10145 (12-26-07). Tax protestors were convicted, and the lead protestor, Schiff, also was pro se, where he managed to get himself cited numerous times for summary criminal contempt. On appeal, the 9th (Tallman joined by Thomas and Ikuta) addressed mental condition testimony of codefendant Cohen and the contempt convictions of Schiff. The 9th held that it was prejudicial error for the district court to bar expert psychiatric testimony that Cohen suffered from a mental condition (narcissistic personality disorder) that affected his ability to discern the incorrectness of his views. This condition went to defendant's his mental state, and the ability to form specific intent. The government's argument that Cohen still knew right from wrong was incorrect, as the condition involved an inability to weigh and consider various beliefs, especially when falling under the sway of the codefendant here. The 9th holding falls in line with past precedent in other tax cases. As for contempt, the 9th vacates because the district court failed to follow the procedure of filing a form on each conviction, but the 9th (nudge-nudge_ said that upon filing the forms (stating the instances of each contempt act), the court could sentence him to the same punishment.

Smith v. Baldwin, No. 04-35253 (12-26-07) (en banc). In an en banc decision, the 9th finds that defaulted claims of prosecutorial misconduct locks the Schlup "actual innocence" gateway. Petitioner plead to a minimum of 30 years based on the testimony of his codefendant in a murder that he (Smith) had welded the crowbar. Unbeknownst to petitioner, codefendant's polygraph had come back "inconclusive," and later the codefendant recanted. The codefendant refused to testify at a subsequent hearing because the state threatened him with capital prosecution should the Smith plea be withdrawn (that would have meant that the codefendant used the weapon). The majority (Smith writing) held that procedural default was not excused by this evidence. A concurrence (Fisher joined by Schroeder and Fletcher) agreed with the result, but would do it on the narrower ground that the evidence of innocence did not show that no reasonable juror could have convicted under Oregon's affirmative defense against felony murder that the defendant was not aware of the intent to kill. In dissent, Reinhardt and Thomas both focus on the prosecutorial misconduct involved, and the cause and effect prejudice it excuses.

Friday, December 21, 2007

Case o' The Week: Catholic, Buddist Zimmerman - and that's OK, in the Ninth

Merry Christmas. Happy Hanukkah. Joyous Kwanzaa. Blessed solstice (left). The Ninth doesn't care if your beliefs fit neatly into any particular religion: if your convictions are sincerely held, the Ninth (and the Religious Freedom Restoration Act) has your back. See United States v. Gregory Michael Zimmerman, __ F.3d __, 2007 WL 4394421 (9th Cir. Dec. 18, 2007), decision available here.

“Righteous” win by CD AFPD Gail Ivens.

Facts: After pleading guilty in a false ID case, Gregory Zimmerman was ordered to provide a DNA sample under the “Justice for All Act of 2004.” 2007 WL 4394421, Id. at *1. Though he has a Jewish name (a laRobert Zimmerman” a.k.a. Bob Dylan), Zimmerman was raised Roman Catholic. Id. at *1. He also studied other religions, such as Buddhism. Id. at *2. Based on his religious beliefs, he objected to letting the Feds draw blood for DNA. Id. at *1, *2; see also Genesis 9:6. The district court didn’t buy it, noting that Roman Catholics have no objection to having blood drawn. Id. at *1.

Issue(s): “We consider whether compelling a criminal defendant to give a blood sample for DNA testing could violate his rights under the Religious Freedom Restoration Act (RFRA).” Id. at *1.

Held: “Without determining the precise scope of Zimmerman’s beliefs, the district court held that his beliefs weren’t religious . . . This was error.” Id. at *1. “While this may not be a mainstream religious belief or common interpretation of the Bible, Zimmerman’s belief that he can’t give a blood sample is based on his connection with god, not purely on secular philosophical concerns . . . As a result, the district court erred in holding that Zimmerman’s refusal to give a blood sample wasn’t based on a religious belief.” Id. at *2.

Of Note: This good per curiam decision (Kozinski, Rawlinson, and visiting judge Baer) gives the Religious Freedom Restoration Act an honest and protective reading. As the decision points out, the RFRA doesn’t require that a belief be central to a mainstream religion – the Act protects religious exercise “whether or not compelled by, or central to, a system of religious belief.” Id. at *1.

The decision also pragmatically emphasizes that an individual isn’t limited to the religious beliefs of his upbringing; “religious beliefs may evolve or change based upon life experiences or personal revelations.” Id. (again, a laRobert Zimmerman” a.k.a. Bob Dylan).

Incidently, the decision pounds a few more nails in the coffins of Fourth and Fifth amendment challenges to the 2004 DNA Act. See id. at *3. For a useful – if depressing – recap of the bad law on the DNA Act, start with the last three paragraphs of the decision.

How to Use: Before your felon-clients with checkered pasts convert to “Zimmermanism,” encourage them to study the remand requirements of this decision. On remand, the district court is to get a bead on Zimmerman’s “precise scope of beliefs.” Id. at *2. Maybe he has a religious objection to drawing blood, but a tissue sample, hair sample, or cheek swab may be fair game. Id. If the scope of Zimmerman’s beliefs preclude providing these other DNA samples, the district court is to determine whether those beliefs are in fact “religious.” Id. The district court then needs to make a factual finding on the sincerity of the beliefs. [The Ninth here – unnecessarily – takes a pot shot at Zimmerman’s sincerity]. Id.

Thus, while the decision generally is an affirmation of the protections of the RFRA, in practice there are many hurdles to surmount before the Act can block the collection of DNA.

For Further Reading: “Whoever sheds the blood of a human, by a human shall that person’s blood be shed; for in his own image God made humankind.” Genesis 9:6. That verse, says the Ninth in Zimmerman, may fairly be read to prohibit the involuntary extraction of blood – an act that can be fundamentally offensive to deeply-held and sincere religious beliefs.

Notably, that same verse can be fairly read to prohibit the State’s execution of its prisoners – another act that is fundamentally offensive to the deeply-held and sincere religious beliefs of many. See “Genesis 9:6 and Capital Punishment,” available here.

Here’s a holiday wish that we will all, one day, become as enlightened as New Jersey. See article on New Jersey abolition of death penalty here.

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


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U.S. v. Biagon, No. 06-10479 (12-17-07). The court acknowledged the "elephant in the room" at sentencing, but when the defendant asked that the court be cleared and sealed so he could address "the elephant," the court said "no." Acknowledgement was enough. The "elephant" was cooperation in a mail theft scheme. Defendant wanted to argue that three months imprisonment was too much, and he should be at a halfway house instead given the extent of his substantial assistance, and the threats. The district court and parties danced around the fact of cooperation, all treating it as a factor that dared not speak its name. Defendant allocuted, but the court still gave him three months imprisonment. On appeal, defendant argues that his right to allocute was hampered, or constrained, by the court's failure to seal the courtroom. The 9th (Thomas joined by Thompson with Kleinfeld concurring) rejected the appeal. The 9th stressed that defendant had an opportunity to allocute, but that right is not unlimited, and the fact that court declined to clear the courtroom, in this case, was permissible. There were other avenues (in camera). Moreover, the 9th emphasized, defense counsel under Rule 32 failed to move to seal the courtroom. Concurring, Kleinfeld argues that the panel has added a layer of complexity in possibly requiring a motion to seal or clear where an oral motion oftentimes suffices.
U.S. v. Zimmerman, No. 06-50506 (12-18-07). The Justice for All Act of 2004 requires DNA collection from those on probation. The defendant here was ordered to give a blood sample. He protested, arguing that this would violate his religious beliefs and violate the Religious Freedom Restoration Act. The district court held that defendant's beliefs, an amalgamation of Catholicism, Buddhism, and scriptual reading were not religious, and that a sample would have to be given. The 9th, per curiam, remanded. The 9th held that defendant's beliefs, as on the record and with its underpinnings, were in fact religious. Whether the beliefs were sincerely held was another matter, and as a question of fact, was an issue the district court could consider. The 9th pointed out certain transgressions of the defendant in the past that seemed to conflict with his new belief, namely drug abuse, and that tattoos seemed to be at odds with the defendant's professed belief in the complete sancity of the body and the prohibition in Genesis against shedding blood. Nonetheless, the 9th notes, people change beliefs. The district court can also see if there is another way to give DNA samples that does not involve blood, and would not impinge upon defendant's religious beliefs (hair/swab?). Finally, the district court can finally determione, if defendant's beliefs are sincere, and there are no other means of getting DNA without violating religious beliefs, whether there is such a compelling government interest as to require the giving of a sample, and through the least burdensome means.
Congratulationss to AFPD Gail Ivers of the C. D. Ca. (Los Angeles) for the win.

U.S. v. Berber-Tinoco, No. 06-50684 (12-19-07). This was a stop close to the border for suspicious activity (crime afoot) occasioned by slow driving, in tandem, in a rural area, and pattern of directions. More interesting is the fact that the judge knew the area, and kept on interjecting his observations of the road, and area, and whether there was one or four stop signs. The 9th (Ikuta joined by Wallace and Nelson), found sufficient reasonable suspicion, but error in the judge using his own personal knowledge. It is one thing for the court to use general knowledge (the shape of a snowman, for example) versus specific knowledge of an area, that he makes part of there record. Nonetheless, the errors under FRE 605 were harmless.

Bradley v. Henry, No. 04-15919 (12-19-07). In an en banc opinion, the 9th (Noonan writing, concurrence by Clifton and dissent by Silverman) found the California appellate courts were objectively unreasonable in affirming a trial court's denial of counsel of choice. This was a murder case. The petitioner had a rocky relationship with various counsel, and there were various changes, some with he being present, one without. Various trial court judges kept granting continuances, for various reasons. A counsel that wanted to represent petitioner was denied because of payment concerns in a quick hearing. The majority looked at this case through the lens of petitioner's right for counsel of her choice. The majority viewed the repeated instances of denial of representation as a whole, and found it a Sixth Amendment violation. It also argued that the trial court itself was there reason for the delays, not the petitioner's choice of counsel. The concurrences looked at the brusque denial of counsel when the trial court, six weeks before trial, failed to adequately question counsel as to his ability to try the case at the time. In dissent, Silverman (joined by Tallman) looked at this case through the lens of the court, and the exasperation of the judges with the various changes in counsel, and sided with the judges finding that there were enough questions, and track record, that the denial of counsel under the circumstances was not objectively unreasonable.
U.S. v. Crampton, No. 06-30219 (12-20-07). The 9th (Kleinfeld joined by Thompson and Bybee) affirm an ACCA conviction. The 9th rejects the argument that because Oregon law does not preclude the possession of ammunition by a felon, defendant is not a prohibited possessor. The 9th pointed out that the Supremes define prohibited, and that the state, unless it restored all guns rights completely, would still fall under ACCA. The 9th also reaffirmed that the state law stat max for ACCA purposes was the maximum statutory sentence, and not the guidelines sentence. Blakely did not reduce the stat max to the guideline max for ACCA purposes.

Monday, December 17, 2007

Byrd v. Lewis, No. 06-15977 (12-11-07). Petitioner, serving 25- to life for stealing a car under California's three strike law, gets relief from the 9th (Rawlison and Restani). The petitioner argued that he had "consent" to borrow a friend's car for several days, and when stopped, the radio was gone, belongings were gone, it would not go in reverse, and later, could not move forward. At trial, the court instructed the jury that an element for a scope of consent defense was that a defendant was not guilty if it was clearly established that the borrowing of a vehicle did not substantially or materially exceed the consent. The petitioner argued, and the 9th agreed, that the "clearly established" diminished the state's burden of beyond a reasonable doubt. The jury asked about the scope, and the state court's harmlessness review was unreasonable. Victor v. Nebraska, 511 US 1 (1994). Wallace dissented, arguing that the state's application of harmlessness was reasonable.

U.S. v. Moreland, No. 05-30541 (12-12-07). In this appeal from a major ($37 million) pyramid scheme, the 9th affirmed the conviction and sentence over numerous objections. Two of the more interesting ones involve the improper cross-examination by the prosecutor of the defendant concerning the veracity of two of the government's witnesses. The defendant, on the stand, was asked if the witnesses were liars and were lying. This is improper. However, under plain error, it was not prejudicial enough given the wealth of other evidence. The second issue, tied to the first, is that the defendant represented himself. He argued IAC (yes, he did), by saying that advisory counsel was not advisorial enough. The 9th held that there were two Faretta hearings, and that the defendant knew the risks of representing himself, and kept, strangely, asking for representation by a non-lawyer (and co-participant). The 9th reasoned that the defendant could have asked for appointed counsel.
U.S. v. Betts, No. 06-50205 (12-14-07). The appeal concerned SR conditions. The defendant had pled guilty to conspiracy for a scheme that fixed bad credit reporting for a bribe (the defendant worked for one of the credit reporting agencies). As conditions of SR, defendant was barred from working in a position where he had control of credit, he had to submit to reasonable searches, had to have the probation officer divvy up any "windfalls" in monies (inheritances, lottery winnings etc.), and could npt drink. The 9th upheld the first two, finding that there was a connection between his offense (credit fixing), and duty owed to an employer; it upheld the second given the Supremes gutting of the Fourth Amendment when it came to someone on probation. The 9th remanded though on the "windfall" condition, because, although close to a million was owed in restitution, the amount of the windfall to go to restitution must be determined by the court and not the probation officer. As for drinking alcohol, there was no indication of any drinking or drug problem, the offense did not involve alcohol, and the condition seemed to be imposed because the defendant declined to talk about any drug usage to the probation officer per FPD sentencing policy. The 9th (Kleinfeld joined by Gould and Smith) requires some connection, and so vacated. All Betts were off for this condition.

Congratulations to AFPD Jim Locklin of C.D. Ca (Los Angeles).

Saturday, December 15, 2007

Case o' The Week: AFPD wins Betts Against AUSA with Ninth's Approval

In a good decision on conditions of supervised release, Judge Kleinfeld reaffirms the frequently-invoked liberty interest of having a beer in your recliner while watching a ball game. United States v. Brandon Betts, __ F.3d __, 2007 WL 4355365 (9th Cir. Dec. 14, 2007), decision available here.

Players: Nice victory by CD Cal AFPD James Locklin.

Facts: Betts worked at a credit reporting company, and pleaded guilty to taking bribes to fix creditors’s bad credit. 2007 WL 4355365, *1. As is true in all FPD cases, “[o]n the advice of counsel, Betts declined to discuss his past or current use of illicit substances of alcohol.” Id. at *4. Although there was nothing in the record to suggest alcohol abuse, the judge imposed the condition of supervised release that “the defendant shall abstain from using illicit drugs or alcohol and abusing prescription medications during the term of supervised release.” Id. at *4.

Issue(s): “Betts contends that the condition prohibiting him from drinking alcohol fails the test set out in Weber.” Id. at *5.

Held:We agree. No one suggests that alcohol played any role in Betts’s crime. And there was no evidence that Betts had any past problems with alcohol. Under these circumstances, we think it impossible to say that the condition imposed bears a reasonable relationship to rehabilitating the offender, protecting the public, or providing adequate deterrence.” Id. at *5.

Of Note: On Liberty: “Moderate consumption of alcohol does not rise to the dignity of our sacred liberties, such as freedom of speech, but the freedom to drink a beer while sitting in a recliner and watching a football game is nevertheless a liberty people have, and it is probably exercised by more people than the liberty to publish a political opinion.” Id. at *6.

How to Use: Like any good AFPD, James Locklin advised his client to refuse to answer questions about prior drug or substance abuse (always a good idea, unless shooting for RDAP or using addiction as a mitigation fact). Judge Kleinfeld’s discussion of this policy – and the sentencing judge’s reaction – is interesting, though a little nerve-wracking: “ The court explains that it took away this liberty to change federal defender office policy by imposing the burden on defendants to answer probation officers' questions about drugs and alcohol. We need not reach any constitutional question that might arise under the Fifth Amendment, because the parties have not raised such a question and the statute does not support the burden to volunteer information that the court imposed. We do not understand how a federal defender's office or private law firm could, consistent with a lawyer’s ethical duties, adopt a policy sacrificing a client’s interest to the interests of criminal defendants as a class, but this is also a question we need not reach.” Id. at *7 (emphasis added). The holding of Betts helps protect the ability of defense counsel to hold Probation Officers at bay as they interrogate our clients – though Kleinfeld, at least, doesn’t seem particularly sympathetic to our policy.

For Further Reading: Betts isn’t the toughest example of the ethical problems arising from blanket FPD policies. After all, if we allowed all clients who don’t have drug or alcohol problems to talk about that fact, it would be a huge red flag for those clients who we advise to stay mum. Other blanket policies, however, present tougher ethical dilemmas. Resistence to polygraphs, a blanket refusal to sign Brady waivers – as a class, these collective actions helps all clients. The problem is that, unlike a labor union, a Defender’s office can’t sacrifice the interests of an individual client for the good of the whole. For an interesting discussion about the defender blanket policies, see Vermont v. Velez, 175 Vt. 23 (Vermont S. Ct. 2003). In Velez, public defenders followed an on-point ethical opinion from the Vermont Bar Association and refused to take calls from DUI suspects unless the cop agreed to disclose the suspect’s priors. (The impact of the priors made a difference on the advice given to the client). 175 Vt. at 28. The state Supreme Court disagreed with this policy, and chewed out the P.D. for its actions. Id. at 29.

Can’t win for losing.

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


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Monday, December 10, 2007

Crater v. Galaza, No. 05-17027 (12-6-07). The 9th denies rehearing en banc in this case, but there is a spirited dissent by Reinhardt, joined by Pregerson, Gould, Paez, and Berzon, arguing that AEDPA violates the separation of powers doctrine. It does so by prohibiting the ordinary principles of stare decisis in habeas cases, thereby interfering with the federal judiciary's judicial process. It also violates the separation of powers by the required deference in federal habeas to wrongly decided state decisions.

U.S. v. Corona-Verbera, No. 06-10538 (12-7-07). This is an appeal from a conviction for a tunnelling case. The tunnel ran from Agua Prieta, Mexico, about 200 yards under the border to a warehouse in Douglas, Arizona. It was a sophisticated tunnel (Bond-like, turning an outside spigot caused a hydrolic lift to raise and the door to open). The defendant was an architect, and Mexican national. He was indicted in 1988, but only arrested in 2003 and subsequently extradicted. Defendant argues on appeal that the pre-indictment delay prejudiced him, and also speedy trial violations. The 9th held that there was no preindictment delay because the indictment was within the statute of limitations. Further, the prejudice was not enough. As for speedy trial, the 9th found that the justification offered by the government, of good faith attempts to extradicte, was sufficient. The Mexican government was not extradicting defendants in the 1990's, and the US made efforts to locate and extradite and seize him.

Sunday, December 09, 2007

Case o' The Week: Ninth Could Use a (Learned) Hand in Conspiracy Cases, Macias-Valencia

You have to actually possess sufficient amounts of specific drugs to get a mandatory minimum sentence under federal drug law. See 21 USC Section 841(a).

(Unless, of course, you're charged with
conspiring to violate those laws . . . in which case, no actual drugs need to be involved at all, to earn a ten year mandatory minimum sentence. See United States v. Macias-Valencia, __ F.3d __, 2007 WL 4246068 (9th Cir. Dec. 5, 2007), decision available here)).

Learned would be dubious (right).

Players: Hard-fought appeal by veteran SF defense attorney Rommel Bondoc, decision by Judge Graber.

Facts: The DEA set up a “reverse-sting” with Macias-Valencia and his brother. Id. An undercover DEA agent offered to sell Macias-Valencia meth in two one-pound transactions. Id. Macias-Valencia and his brother were busted when they showed up with over $4,600 in cash and met with the agent to complete the sale. Id. No actual meth, however, was ever involved in the investigation or arrest. Id.

At sentencing, San Jose District Judge Whyte imposed the ten-year mandatory minimum required by the drug and conspiracy statutes, 21 USC §§ 841 and 846 (though he suggested that might have sentenced lower under the guidelines) Id. He rejected the defense argument that the “statutory maximum sentence should not apply because no actual contraband was involved in the commission of the offense.” Id.

Issue(s): “Does the mandatory minimum sentence of 10 years, prescribed by 21 USC § 841(b)(1)(A)(viii), apply to a conviction for conspiracy with intent to distribute, and attempted possession to distribute, 50 grams or more of methamphetamine, even when no actual contraband was involved in the commission of the offense? Id. at *1.

Held: “Joining the Sixth Circuit, we answer ‘yes.’” Id. “In summary, Congress has dictated that a conviction for a conspiracy to distribute or an attempt to distribute a controlled substance carries the same penalty as a conviction for the distribution of the same amount of the same controlled substance. Neither a conspiracy conviction nor an attempt conviction requires the delivery, presence, or even existence of actual contraband. It follows that the district court properly imposed the mandatory minimum sentence here.” Id. at *4.

Of Note: The rub in this decision is that the substantive offense – possession for sale, 21 USC § 841(a) – requires proof that the defendant knowingly possessed a controlled substance and had the intention to distribute it. Id. The defense here (logically) argued that conspiring to commit that substantive offense should require that same element: in other words, a conspiracy to sell drugs should require actual drugs somewhere in the transaction, before a mandatory minimum sentence kicks in. Id. Judge Graber (joined by Judges Beezer and Trott) disagreed.

According to the panel, the statutory text “is clear.” Id. at *2. The result is that Macias-Valencia gets a ten-year mandatory minimum sentence for conspiring to commit a substantive crime (possession for sale), when there were never actually any drugs and he could not have, therefore, have been found guilty for the substantive crime itself! Conspiracy remains “that darling of the modern prosecutor’s nursery,” eight decades after Judge Learned Hand’s memorable quote. Harrison v. United States, 7 F.2d 259, 263 (2d Cir. 1925).

A previous Ninth Circuit panel (Judges Lay, Hug, and Schroeder) flat-out agreed with the defense argument that a mand-min sentence for a conspiracy conviction requires actual controlled substances. United States v. Steward, 16 F.3d 317, 322 (9th Cir. 1994). The panel here avoids an en banc referral by characterizing the Steward holding as “dicta.” Macias-Valencia, 2007 WL 4246068, *3. “Dicta?” Maybe, but dicta that is directly on-point, from two former Chief Ninth Circuit Judges. Seems en banc review would be the better course – particularly because the panel crafts a new (and bad) Ninth rule.

How to Use: Beware: Macias-Valencia will undoubtably be abused to bootstrap high mandatory-minimum sentences into drug cases that wouldn’t otherwise qualify because there are no drugs involved, or insufficient drugs to trigger the mand-mins. The decision is particularly dangerous in a world where snitches and DEA agents routinely push our clients into dealing much larger amounts than is their normal “business practice.” Add the fact that you don’t actually need an overt act alleged or proved in a drug conspiracy, United States v. Travelman, 650 F.2d 1133, 1137 (9th Cir. 1981), and the new rule of Macias-Valencia will create some horribly unjust cases.

For Further Reading: For a very interesting article suggesting much-needed reform of conspiracy law, see Benjamin E. Rosenberg, Several Problems in Criminal Conspiracy Laws and Some Proposals for Reform, 43 No. 4 Crim. Law Bulletin 1, July-Aug. 2007.

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


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Thursday, December 06, 2007

Cooper v. Brown, No. 05-99004 (12-4-07). The 9th affirms the denial of a habeas petition. The petitioner asks for various tests to be conducted, and they were, with the result that innocence was not established. The 9th (Rymer joined by Gould and with a concurrence by McKeown) holds that neither the actual innocence "gateway" nor AEDPA standards were meet for the claims. McKeown, concurring, is troubled by the sloppiness in the investigation and forensic testing. She points out discrepancies, errors, and questions in pieces of the physical evidence. She wonders if certainty is established "once and for all," as requested by the tests. She ends up concurring because of AEDPA's standards of deference.

Smith v. Patrick, No. 04-55831 (12-4-07). On remand from the Supremes, this panel of the 9th (Pregerson, Canby and Reed) hold again that no reasonable jury should have found the petitioner guilty of assault on a child resulting in death. The injuries to the child were not consistent with the supposed violent shaking. The 9th finds that AEDPA's deference to state holdings unless it is contrary to a Supreme Court decision does not require an exact lining up of facts, but is rather to be compared to the general holding of the precedent. Here, the Court's precedent was Jackson, and "the light most favorable..." articulation. There was no physical evidence in this case to support an assault resulting in death offense.

U.S. v. Macias-Valencia, No. 06-10711 (12-5-07). This "conspiracy appeal" answers the question: can a defendant get a 10 year mandatory minimum for a conspiracy where there was no contraband? The answer (drumroll) is "Yes." (What did you expect?). The defendant was in a reverse sting (buying drugs) but when he showed up with the money, and said "show me the drugs," police badges were flashed instead. The 9th (Graber joined by Trott and Beezer) stated that conspiracy is a substantive offense distinct from possession with intent, and that it carries the same penalties as possession with intent, but with different elements. The straight reading of the statute and legislative history all support the applicable mandatory minimum even in the absence of the drugs. The 9th follows the 6th Circuit in this holding.

U.S. v. Holt, No. 06-30597 (12-5-07). In an appeal from an "enticing a minor" offense, 18 USC 2422(b) and possession of child pornography, the 9th (Gould joined by Canby and Graber) hold that a "deception adjustment" under the guidelines was appropriate. The defendant was a 45-year old doctor pretending he was a 19-year old college student to who he thought was a 13-year old girl (but was, of course, a middle-aged FBI agent). The defendant did inform the "girl" that he was older six months after the first contact that he was older, and gave his name, before he sent explicit photos. The court, and the 9th, found that an adjustment for deception was proper because he first made contact and "groomed" with a false identity. The 9th also affirmed an adjustment for sadomasochistic photos on the computer.

U.S. v. Zalapa, No. 06-50487 (12-5-07). A failure to object to multiplicitous charges does not waive double jeopardy challenge. Here the defendant was caught with a gun and bullets. The government charged him in a multi-count indictment, with counts two and three alleging possession of an unregistered machine gun and an unregistered firearm with a barrel less than 16 inches, each count falling under the prohibition against possessing such unregistered firearms. The 9th first found that such a double charge was multiplicitous, as the overall section 5861 punishes individual firearm possession, with the firearm as a unit. The precedent is that two or more sections cannot be attached to one firearm, although many firearms can have specific violations. The 9th goes on to hold that the objection was not waived as the challenge is to the conviction and sentence under double jeopardy, and not to the form, or the type of proof presented, in the indictment. There is also prejudice.

Congratulations to AFPD Jim Locklin of the C.D. Ca (Los Angeles) for the win.

Sunday, December 02, 2007

Case o' The Week: Snitch Golden Despite Vouching, US v. Brooks

A disappointing loss on plain error review still offers some very useful language to fend off prosecutorial vouching. United States v. Brooks, __ F.3d __, 2007 WL 4198177 (9th Cir. Nov. 29, 2007), decision available here. The decision is particularly helpful in cases involving snitches, and wiretaps.

Players: Decision by CD CA D.Ct Judge Guilford.

Facts: Brooks went to trial in a wiretap case involving a Seattle drug conspiracy. 2007 WL 4198177, *1. During direct and re-direct of the government’s snitches, they explained that their plea agreements required “truthful” testimony or they would get no breaks at sentencing. Id. at *3. The snitches agreed that if the prosecutor and court thought that they were lying, they would earn no downward departure. Id. at *3-*4.

The government also elicited testimony from other witnesses about the extensive review (DEA, AUSAs, State and Federal judges) that went into the authorization of the wiretap. Id. at *5. There was no defense objection to these lines of questioning. During the defense closing, the defense conceded Brooks’ guilt on several (non-mand-min) counts. Id. at *1. The jury found guilty on all counts, including a twenty-year mandatory-minimum drug count. Id. at *1.

Issue(s): “First, Brooks argues there was vouching in the direct examination of three witnesses [the snitches]. Second, Brooks argues that the re-direct examination of one of these witnesses implied that the court and others had made conclusions about the witness’s veracity. Third, Brooks argues there was vouching in the government’s evidence about the wiretap authorization process.” Id. at *3.

Held: “We agree with Brooks that the government engaged in improper vouching. Nevertheless, we affirm because the error did not affect Brooks’s substantial rights. Fed.R.Crim.P. 52(b).” Id. at *3.

Of Note: While Brooks lost on plain-error review, the decision has much good language condemning this type of vouching. For example, a cooperating witness who explains that his deal depends on telling the truth is vouching – such statements “suggest that the witness, who might otherwise seem unreliable, has been compelled by the prosecutor’s threats and the government’s promises to reveal the bare truth.” Id. at *4 (internal quotations and citation omitted).

Similarly, it was improper vouching to elicit testimony that a snitch’s sentencing reductions rest on a court’s determination that the witness told the truth.
Id. at *4. “Whether the witnesses have testified truthfully, of course, is entirely for the jury to determine: it is improper to communicate that a credibility determination has been made by the AUSA, law enforcement agents, or the court, or that the government knows whether the witness is being truthful and stands behind the veracity of the witness’s testimony.” Id.

Finally, dwelling on the many authorizations necessary to get a wiretap is not relevant at trial, and is also improper vouching.
Id. at *5.

How to Use: First and foremost, Brooks teaches the importance of objecting at trial. Had objections been lodged, Brooks might have prevailed (sans objections, the Court here used the very tough “plain error” review).

This decision would also make a great foundation for a little prophylactic in limine motion whenever snitch or wiretap testimony is anticipated at trial. Such a motion would fire a warning shot across the prosecutor’s bow, and would remind defense counsel that this type of testimony is improper vouching – and to object! (Whoever first drafts this motion should shoot me a copy, and I'll post it on the ND Cal FPD website).

For Further Reading: In Brooks, the Court concludes “The vouching here was within the broad bounds of the plain error standard, but pushed hard against those bounds and threatened the integrity of the verdict. It is not a model for future trials.” Id. at *7. While it’s easy to be cynical about this warning (given the Court’s refusal to actually reverse), the Ninth is generally pretty intolerant of vouching. See, e.g., United States v. Weatherspoon, 410 F.3d 1142, 1152 (9th Cir. 2005) (reversing for improper vouching in a comparatively close case involving credibility battle); United States v. Combs, 379 F.3d 564, 575-76 (9th Cir. 2004) (reversing for vouching given circumstantial nature of government’s case); United States v. Edwards, 154 F.3d 915, 923-24 (9th Cir. 1998) (reversing for improper vouching when prosecutor personally discovered critical piece of evidence during trial); United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (reversing due to cumulative effect of vouching and other errors). In a slightly closer case (or without strategic defense concessions in closing) Brooks probably would have won reversal and remand here as well.

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


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Saturday, December 01, 2007

Guantánamo Book Club II

Last fall, I posted a list of ten readings recommended for those interested in the representation of Guantánamo prisoners (here). On the eve of the Supreme Court argument in Boumediene, I have six additions to the list.

1. Clive Stafford Smith, Eight O'Clock Ferry To The Windward Side: This is a wonderful book by one of the leading lawyers for Guantánamo prisoners, a former death penalty defender and current attorney for the human rights organization Reprieve. You may have noticed recent media articles regarding the scary/comic accusation that Clive smuggled underwear to detainees; his letter in response is available (here). His book vividly describes lawyer life at Guantánamo and, most importantly, provides human faces to the Inmate Serial Numbers living in the no-law zones of Guantánamo and secret prisons abroad.

2. Boumediene briefing: It's time to start cramming, and all the party and amicus briefing for the oral argument, scheduled for December 5, 2007, is available here. The Supreme Court has announced that the audio of the oral argument will be available shortly after it is completed on the Supreme Court website. The argument should be especially interesting because former Solicitor General Seth Waxman is arguing for the petitioners; Solicitor General Paul Clement will be arguing for the government. An Oregon perspective on Boumediene is available from amicus briefs filed in the District of Columbia Court of Appeals here and here.

3. Clark B. Lombardi and Nathan J. Brown, Do Constitutions Requiring Adherence To Shari’a Threaten Human Rights? This law review article in the American University International Law Review (available here) provides historical and contemporary views of the evolution of Islamic law. The article provides the opportunity to better understand our clients' cultural backgrounds and to innoculate ourselves against simplistic media stereotyping of what Shari’a is.

4. Darius Rejali, Torture And Democracy: I have just started this astounding treatise on the theory and practice of torture by an international torture expert and Reed College professor. The idea that there is a sociology and politics of torture came slowly to me; however, Professor Rajali’s forensic analysis of our Guantánamo client who was a Taliban torture victim showed how social science could corroborate accounts of torture. I now see better the theoretical context in which Professor Rejali practices. This study should be the starting point for informed discussion of torture and America.

5. Christopher J. Schatz and Noah A.F. Horst, Will Justice Delayed Be Justice Denied? Crisis Jurisprudence, The Guantánamo Detainees, The Imperiled Role Of Habeas Corpus In Curbing Abusive Government Detentions: This article in the Lewis & Clark Law Review, written by a Federal Public Defender lawyer and law clerk, provides a detailed and readable history of habeas corpus jurisprudence leading up to Boumediene (available here). The authors argue that habeas corpus review of executive detention is a fundamental attribute of judicial power and that our history and constitutional structure does not tolerate a legal no-fly zone where non-persons can be indefinitely imprisoned.

6. Reza Aslan, No God But God: This is a highly accessible and sophisticated account of the origins, evolution, and future of Islam. The headlines are easier to understand in the context of historical trends and contemporary conflicts.

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