Sunday, April 29, 2007

Case o' The Week: 30-year old crime OK to double sentence, says Ninth in Olmos-Esparaza

A prior crime haunts our hero Jean Valjean for twenty years in Les Miserables. The Ninth has got that beat, though: it upholds the use of a thirty-year old offense to dramatically increase the specific offense adjustment of an illegal reentry defendant. See United States v. Olmos-Esparaza, __ F.3d __, Slip. Op. 4541 (9th Cir. Apr. 24, 2007), decision available here.

Creative challenge by San Diego AFPD James Fife.

Facts: Olmos-Esparaza was convicted of illegal reentry after a trial and received a sentence of seventy months. Slip Op. at 4544. He won a Booker remand and on re-sentencing got a below-guideline, sixty-month term. Olmos-Esparaza took the case back up to the Ninth, arguing that the court erred by using convictions from 1972 and 1976 to increase the specific offense adjustment under USSG § 2L1.2 (2003) by sixteen levels. Id.

Issue(s): “Leobardo Olmos-Esparaza . . . convicted of illegal reentry after deportation . . . appeals his sentence . . . . In an issue of first impression in this circuit, he contends that the district court erred by considering his convictions from 1972 and 1976 in calculating sentencing enhancements under § 2L1.2 of the 2003 Sentencing Guidelines.” Id. at 4543.

Held: “We join the Tenth and Eleventh Circuits in holding that this section contains no time limitation on the age of convictions for purposes of calculating sentencing enhancements. Id.

Of Note: This was a clever and credible defense argument. One type of specific offense adjustment under this guideline (the “+8" bump for agg felonies) specifically states that it is to be imposed regardless of the date of the underlying conviction. Id. at 4546. Another specific offense adjustment (“+16" for more serious offenses, like those at issue here) is silent as to a time limitation. Here, AFPD Fife exhumed that great law-school chestnut, expressio unius est exclusio alterius (“when some statutory provisions expressly mention a requirement, the omission of that requirement from other statutory provisions implies that the drafter intended the inclusion of the requirement in some instances but not others.”) Id. at 4546.

Unfortunately, the opinion’s author – Judge Hawkins – identifies some credible reasons why this spin doesn’t work, including an odd result from the defense argument: less serious (+8) agg felony enhancements wouldn’t have any time limitations, but more serious (+16) enhancements would. Id. at 4547.

How to Use: There’s something wrong when a conviction too old to even count in the criminal history computation doubles (or trebles) a defendant’s guideline exposure as a specific offense adjustment. There’s also something unfair (and frankly racist) in the fact that very old convictions can’t increase specific offense adjustments in other guidelines (like § 2K2.1(a), felon in possession), but can for illegal reentry under § 2L1.2. Don’t hold your breath that the Sentencing Commission will correct these injustices, but, fortunately, district judges can after Booker. Any conviction that earns “zero” points in the Criminal History computation of the PSR, but that nonetheless jacks-up the Offense Level calculation, is ripe for a Booker / § 3553(a) attack. Maybe that’s one of the equities that earned Mr. Olmos-Esparaza a below-guideline sentence on his Booker remand?

For Further Reading: One of the hot criminal law issues in the Ninth is how to deal with prior convictions that trigger specific offense adjustments. Olmos-Esparaza deals with time limitations on the use of such priors. Many other recent Ninth Circuit cases wrestle with the “modified categorical” approach, and whether a particular “prior” qualifies. (The ramifications of Shepard v. United States, 544 U.S. 13 (2005) are finally being ironed out in the Circuits). For a very, very useful recent decision on this issue, take a look at United States v. Snellenberger, 480 F.3d 1187 (9th Cir. 2007), decision available here. This great Ferguson decision rejects criminal minutes and abstracts of judgments as fodder for the “modified categorical” mill. Id. at 1191 & n.5. This little nugget from Snellenberger has escaped much notice, but the decision is a big deal: footnote five dictates an evidentiary limitation on the government that could save Career Offender and illegal reentry defendants years in custody.

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


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Friday, April 27, 2007

US v. Olmos-Esparza, No. 06-50276 (4-24-07). The 9th (Hawkins joined by T. Nelson and Siler) hold 2L1.2 (illegal reentry) is timeless when it comes to offense level enhancements for prior types of offenses. The defendant's convictions here occurred between 1972 and 1976. The 9th rejected the ambiguity argument in the commentary, and joined the 10th and 11th Circuits in finding that the sins of the past can never be expunged when it comes to 2L1,2.

Nunes v. Ramirez-Palmer, No. 06-16100 (4-27-07). The 9th (Gould, Smith and Covello writing) affirm a denial of a habeas challenging California's three-strike provision. The state courts' decisions were not an unreasonable interpretation of constitutional law, and the prosecution of the petitioner was neither vindictive nor a constitutionally infirm exercise of prosecutorial discretion.

Saturday, April 21, 2007

Case o' The Week: No Mahalo for Supervised Release Notice Decision -- Leonard

Quadruple the Probation recommendation, double the high-end of the guideline range, and all with no notice from the sentencing court -- no problem, writes Judge Clifton (left) in the disappointing Leonard decision. United States v. Leonard, __ F.3d __, No. 06-30127, Slip Op. 4425 (9th Cir. Apr. 18, 2007), decision available here.

Players: Hard fought case by AFPD Gerald Needham.

Facts: Leonard, a thorough defendant, blew four out his four conditions of supervised release. Slip Op. at 4428. He didn’t contest the violations, and the P.O recommended six months – towards the low end of the 5-11 month guideline range. Id. Without prior notice, Oregon District Judge Jones sentenced Leonard to twenty-four months – the stat max for the term of supervised release.

This case primarily presents the question of whether, following violation by a defendant of conditions of supervised release, a district court may impose a sentence above the advisory range set forth in the Sentencing Guidelines, without giving advance notice of the possibility of a sentence outside the Guidelines range.” Id. at 4427-28.

“We conclude that such advance notice is not required and affirm the sentence imposed in this case.” Id. at 4428.

Of Note:
Pick up a Class A misdemeanor with a guideline range of 0-6 months, and a judge has to give notice before departing upwards from the guideline range and giving a seven month sentence. See United States v. Evan-Martinez, 448 F.3d 1163 (9th Cir. 2006) (requiring notice of upward departure post-Booker). Here, though, defendant Leonard got over double the guideline high-end – over a year over the range – and no notice is required? As Judge Clifton concedes, “It can be argued that our holding today is at odds with our recent holding in . . . Evans-Martinez.” Id. at 4431. Yep – seems so.

The opinion (tries to) reconcile Evans-Martinez by explaining supervised release violations are different, but why? Violation guidelines have always been advisory, but so are all the guidelines after Booker. Are supervised release guidelines “super-advisory,” but “normal” guidelines just “normal-advisory?” Just another goofy permutation in the improvised sentencing world post-Booker.

Odd about this case: defendant Leonard had a three year term of supervised release with his original sentence, but got a 24 month “stat-max” violation sentence? Seems a year short of the “true” stat max. I posed this dilemma to the COTW e-mail string and offered an Anchor Steam for the answer: here it is. Section 3583(b)(2) of Title 18 authorizes a three-year term of supervised release for a Class C felony (Section 922(g)(1), felon in possession, is a Class C). Section 3583(e)(3), however, only permits a two-year prison sentence for a revocation of a Class C felony term of supervised release.

This illustrates two points; first, we have an enlightened Bench in the N.D. Cal. -- stat-max supervised release violation sentences are rare, so we don't have much experience with the issue. Second, if you offer the defense bar an Anchor Steam they'll research anything for you, in record time.

How to Use: First, ignore Leonard and preserve due process challenges to (non-noticed) above-guideline supervised release sentences. Rita / Claiborne is coming down any day, and there’s certain to be new spins for sentencing challenges.

Second, use Leonard as a sword when arguing for a below-guideline supervised release sentences. If Chapter Seven guidelines mean so little that they don’t trigger constitutional protections, they’re entitled to no deference from a judge who wants to Do The Right Thing.

Third, bear Leonard in mind for Judge "Max" -- district courts with reputations for high sentences. Here, the poor defendant folded, didn't demand a revocation hearing, admitted the violations, and still got the stat max without prior notice. If that's the way things will go, might as well go through full revocation proceedings, preserve Crawford challenges (yet to be decided by the Supreme Court), demand discovery, take appeals, and make the district court work a little before maxing out a defendant.

For Further Reading: We’ve profiled W. Bush appointee Judge Clifton of Hawaii before, here. He’s not due too much grief for the Leonard opinion – one has to concede that the weight of circuit authority is against notice for above-guideline sentences in supervised release violations. Slip. Op. at 4431. Although Judge Clifton has a civil background, he’s ventured into criminal opinions in the last year or two. While he’s admittedly no Reinhardt, see United States v. Mueller, 463 F.3d 887 (9th Cir. 2006) (Clifton, J.) (reversing probationary sentencing in mand-min child porn case), he’s a considerably better defense draw than some of his Clinton-appointed colleagues, see United States v. Nguyen, 465 F.3d 1128 (9th Cir. 2006) (Clifton, J.) (reversing supervised release violation conviction arising from use of nolo pleas).

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


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Wednesday, April 18, 2007

US v. Murphy, No. 05-50608 (4-18-07). Squabbling notes come out from a jury, with the foreperson saying one juror won't deliberate or listen. The case was a 1001 false statement. Defense counsel (!) stipulates that the one juror be removed and that the jury continue with 11. The juror is dismissed, but leaves a note, which states why she is holding out for acquittal, discussing evidence, reasonable doubt, and a sense that any false statements were at most inadvertent. Defense counsel tries to say "oh no, this is a terrible mistake," but it is too late and the inevitable conviction comes. On appeal, the 9th (Clifton joined by Rymer) hold "too late, too bad." Counsel agreed to proceed with 11, when the first notes indicated stubbornness and a refusal to deliberate, and it was a strategic decision. It did not implicate the right to a unanimous jury. Dissenting, Gibson (from the 8th Cir), says "Whoa, it does implicate the right to a unanimous jury." There was misinformation, and the note from the juror clearly indicates that she was holding out in good conscience. He would vacate and remand for a new trial.

Obvious Lesson Learned: don't ever agree to having the hold-out dismissed.

US v. Leonard, No. 06-30127 (4-18-07). The 9th (Clifton joined by Farris and Bea) declares open season on supervised release sentencings. The defendant was on SR here, and violated most conditions. The court declared him a total failure on SR and sentenced him to the max of 24 months. This was way above the advisory guidelines in Chapter 7 for SR violations. On appeal, defendant argued that eh should have gotten notice. "Why?", the 9th rhetorically asks. The defendant knew what the max was, and the Chapter 7 policy clearly stated that the guidelines were advisory. Moreover, if the 9th doesn't require notice of sentences above the range in probation violations, a court doesn't have to do it for SR violations. They are akin. Of course, the 9th looks to 2d, 5th, 8th and 10th circuits. The 9th does acknowledge that this holding could seem to conflict with its holding in Evans-Martinez, 448 F.3d 1163 (9th Cir. 2006), that an upward departure notice is still required even after Booker. How does the 9th resolve this? First, it says that Evans-Martinez does not explicitly overrule prior probation sentence precedent (sure, why not have the form take precedence over the spirit); and SR sentences are under Fed R Crim P 32.1 which does not have an advanced notice requirement (ah, due process is brushed aside again).

US v. Thrasher, No. 05-35929 (4-18-07). The 9th (Wallace joined by Gould) holds that under a limited remand, the decision by counsel not to call a witness, after mentioning her in opening, was not IAC. This decision was reached after an evidentiary hearing. The district court refused to look at other issues, which the 9th said was proper under the limited remand doctrine. It indicated that it may have been quasi-jurisdictional. Berzon, concurring, takes issue with characterizing the limited remand as jurisdictional as situations may develop that widen the scope.

US v. King, No. 05-10629 (4-18-07). The 9th (O'Scannlain joined by Beezer and Trott) finds no Speedy Trial violation when the superseding indictment added a co-defendant, and then there were excludable periods.

Saturday, April 14, 2007

Case o' The Week: McKeown Makes Like Trebek, Gives Big Jeopardy Win --- Brazzel

Jeopardy attaches after an implied acquittal, preventing retrial on a lesser, writes Judge McKeown in the great Brazzel habeas decision. Brazzel v. Washington, __ F.3d __, No. 05-36145, Slip. Op. at 4217 (9th Cir. April 12, 2007), decision available here. A dense read, but worth it for its explanation of implied acquittals, mistrials and Double Jeopardy.

Players: Admirable win by Tacoma AFPD Russell Leonard; written by Judge McKeown.

Facts: Brazzel was charged with attempted murder or, in the alternative, first degree assault, and two counts of second degree assault. Id. at 4221. The first jury convicted him of first degree assault on Count 1, and on both second degree counts. The jury remained silent on the attempted murder charge, leaving the verdict form blank. Id. Brazzel was sentenced to 456 months, but won on a new trial on appeal. Id. at 4222. On retrial, he faced the same alternative attempted murder charge and moved to dismiss on Double Jeopardy grounds. Id. That was denied, he was convicted again of the same counts, and again the jury left the jury form blank on the attempted murder charge. Id. at 4223. He was sentenced to 240 months.

Issue(s): “In this . . . habeas appeal . . . Brazzel challenges, as a violation of the Double Jeopardy Clause, his retrial on an attempted murder charge, after his first jury remained silent on that charge, and convicted him of a lesser alternative offense.” Id. at 4220.

Held: “Where, as here, the defendant’s conviction is overturned due to a jury instruction error, the government may retry the defendant as to the charge of conviction, but not for other charges of which the first jury impliedly or expressly acquitted him.” Id. at 4225-26 (emphasis added). “In contrast to an implied acquittal, retrial is permitted where there is a mistrial declared due to the ‘manifest necessity’ presented by a hung jury.” Id. at 4226. [F]or double jeopardy to attach, there is no explicit requirement that the charged offenses be greater and lesser included offenses . . . . The defining fact is that it is a distinct and different offense.” Id. at 4227 (quotations omitted). “The state court did not clearly err when it treated the first jury’s silence as an implied acquittal.” Id. at 4229. “Brazzel was twice put in jeopardy for attempted murder. The circumstance of a retrial on the murder charge should not have been characterized as moot.” Id. at 4234. “Reversed . . . and remanded to the state to determine what non-jeopardy barred retrial, if any, is to be had.” Id. at 4235.

Of Note: The rule of Brazzel is this: unless it is very clear that the jury has hung, a lack of a conviction is an implied acquittal and jeopardy attaches. Even better, if there’s an implied acquittal on a greater offense it can bar retrial of the lesser (though the law is pretty complicated on this, and it was an unusual fact pattern here that produced this result).

How to Use: Brazzel is an interesting case to add to a trial binder, particularly when there are complicated jury instructions and verdict forms. It could also add a twist to strategies about Allen charges (the “dynamite” charge for a deadlocked jury). While it’s hard to puzzle through all the ramifications when faced with an unclear verdict, at least in this case the jury’s ambiguity about a greater charge worked in the defendant’s favor – it may mean that he won’t face a retrial on the lesser, first degree assault allegation. Clarity, in this case, probably wouldn’t have helped the defendant – if the jury clearly said that it had hung on the attempted murder charge (instead of leaving the verdict form blank), Brazzel would have lost this habeas.

For Further Reading: We’ve touted the opinions of Judge McKeown here before. See blog here. She is the only federal judge to attend both the Universities of Wyoming and Madrid (at least, that’s a safe bet). See article here. Of course, even the best judges have bad days – McKeown recently authored Hector, which held that failure to serve a search warrant didn’t trigger the Fourth Amendment exclusionary rule. See United States v. Hector, 474 F.3d 1150 (9th Cir. 2007).

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


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Friday, April 13, 2007

Brazzel v. Payne, No. 05-36145 (4-12-07). Habeas petition is granted for double jeopardy. The first jury convicted on a lesser state assault charge, failing to reach the alternate and more serious charge of attempted murder; the same result with the second jury. The 9th, using the implied acquittal doctrine articulated in Green, 355 US 184 (1957), finds that the petitioner had been placed in jeopardy. Moreover, using Price, 398 US 323, it could not be harmless since double jeopardy goes to risks and not results. This case presents a landscape of double jeopardy and is very good about the language of "unable to agree" in a jury instruction as meaning something less than a deadlock or hung jury.

Congrats to AFPD Russ Leonard, W.D. Wa. (Tacoma).

US v. Gamba, No. 06-35021 (4-11-07). Defense counsel may waive a defendant's right to have an article III judge conduct closing argument where the decision is one of trial tactics and strategy. It is a technical and strategic decision that counsel can properly make for his client. In dissent, Fisher would have required a knowing consent by the defendant rather than just a decision by counsel given the extent of what could go wrong.

Friday, April 06, 2007

Case o' The Week: Ninth Burns Jewell While "Clearing Underbrush," Heredia en banc

While "clearing the underbrush" around the Ninth Circuit's deliberate ignorance instruction (Jewell), Judge Kozinski's en banc decision also incinerates the few protections that were formerly part of this area of law. United States v. Heredia, __ F.3d __, No. 03-10585, Slip. Op. at 3715 (9th Cir. April 2, 2007) (en banc), decision available here. A disappointing en banc opinion that seems to have split the Right.

Players: Kozinski (right) authors en banc decision that reverses good Bybee decision; Kleinfeld concurs but really dissents; and Graber dissents (?) with Pregerson and others. (These splits alone makes the case worth a read).

Facts: Carmen Heredia got caught at a near-border bust with a car that smelled like dryer sheets, and 349 pounds of pot. Id. at 3719-20. At trial she testified that she borrowed the car, noticed the odd smell, but by the time she suspected that drugs were in the car she was at a spot on a freeway that was too dangerous to stop and check. The district court gave a Jewell deliberate ignorance instruction over defense objection: she was convicted of 21 USC § 841(a)(1). Id. at 3721.

Issue(s): “On appeal, defendant asks us to overrule Jewell and hold that section 841(a)(1) extends liability only to individuals who act with actual knowledge. Should Jewell remain good law, she asks us to reverse her conviction because the instruction given to the jury was defective and because there was an insufficient factual basis for issuing the instruction in the first place.” Id. (footnote omitted).

Held: “[W]e recognize that many of our post-Jewell cases have created a vexing thicket of precedent that has been difficult for litigants to follow and for district courts—and ourselves—to apply with consistency. But, rather than overturn Jewell, we conclude that the better course is to clear away the underbrush that surrounds it.” Id. at 3723. [There is no requirement that] “the jury . . . be instructed that defendant’s motive in deliberately failing to learn the truth was to give himself a defense in case he should be charged with the crime.” Id. at 3723-26. “We . . . re-adopt the normal rule applicable to jury instructions by reviewing the decision to give a deliberate ignorance instruction for abuse of discretion. Opinions to the contrary [requiring de novo review]. . . .are overruled.” Id. at 3728. “Some of our opinions have commented on how [infrequently ] Jewell instructions should be given . . . . Whether the instruction is given depends solely on the state of the evidence in the case . . . . Cases suggesting the contrary are, to that extent, overruled.” Id. at 3732 & n. 16.

Of Note: The defense had hoped to eliminate the hated Jewell instruction – instead, this Kozinski opinion makes it worse. The Court still requires the two prongs found in the old Ninth instruction. Id. at 3726. It rejected, though, the “motive to provide a defense” prong that had made its way into some analyses. It also disavowed very useful language that cautioned against the Jewell instruction and urged limited use. Id. at 3723 & n. 16. Worst of all – and this is really the most dangerous aspect of the decision – it scrapped de novo review of whether the instruction was appropriate, and adopted the (more-deferential) “abuse of discretion” standard. Put bluntly, the district court now has greater deference on whether to give the government a Jewell instruction. (“We will second guess [the district court’s] decision only in those rare cases where we find an abuse of discretion.”) Id. at 3732. That greater deference is bad news for the defense.

How to Use: Lemonade is a challenge from this lemon of an opinion. Here’s a stab: Kozinski emphasizes that a district court retains the power to tailor the Jewell instruction to fit the facts of the case. Here, for example, the judge could have instructed the jury that it could find Heredia did not act deliberately if the jury believed that her failure to investigate was motivated by safety concerns. Id. at 3726. Jewell will now be largely fought in the trenches, with trial court litigation over the breadth of the deliberate ignorance instruction. (As a corollary, the quirks of the particular district court judge involved are now far more important than the Circuit law on deliberate ignorance).

For Further Reading: It’s not just (alleged) drug mules that hate Jewell – the deliberate ignorance instruction played a prominent role in the Enron trials as well. See article here. White collar folks, take note: Heredia just clobbered your C.E.O.’s defense.

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


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US v. Snellenberger, No. 06-50169 (4-3-07). Should an equivocal minute order result in years of imprisonment as a career offender? The 9th answers "no" in this case involving an unarmed bank robber. One of his priors for career offender analysis was a California 459 burglary. Such a conviction could be for a dwelling, but also for other acts, such as shop, warehouse, barn, aircraft, train and the always popular underground portion of a mine. The government sought to prove that the offense was a dwelling through an information alleging facts of a residential burglary. The 9th (Ferguson and Siler with a concurrence by Hawkins) says this does not meet the Taylor/Shepard categorical test. The gov't argues that the minute entry can come in as evidence of a conviction, but that doesn't meet the higher standard of clearly establishing facts that lead to an enhancement. The 9th recognizes there might be some tension with the use of abstarcts proving prior convictions for enhancement purposes (n. 5). However, the panel here notes that the 9th in Diaz-Argueta, 447 F.3d at 1169, had noted that a state court minute order is not the type of record to be relied upon, and the panel here so explicitly holds. Concurring, Hawkins tries to clarify this tension, noting that the minute entry here does not specify the narrower offense. He points out that the abstract in the past has been used to prove a categorical prior, and that is bolstered by a charging document to show that a conviction did occur. Hawkins would not use abstracts to independently establish a qualifying conviction, but could be used in a modified categorical analysis. There may be a difference in that abstracts and minute orders might be treated differently.

Congrats to AFPD Gail Ivens of the FPD L.A. Office.

US v. Heckenkamp, No. 05-10322 (4-5-07). The 9th (Thomas joined by Canby and Hawkins) upholds the denial of suppression of a remote search of the computer files by an university administrator under the "special needs" exception to the fourth amendment. The defendant had a reasonable expectation of privacy under the university computer system. However, the special needs exception was beyond the normal requirements for a warrant. The university administrator was not working at the behest of law enforcement. Although he knew the FBI was looking into the hacking, the administrator acted to disable the computer against the wishes of the FBI. The administrator also limited his intrusion, and acted in a narrow manner to ensure that the computer was being used. The 9th also upheld the search of the dorm room under an independent basis.

Monday, April 02, 2007

US v,. Ihnatenko, No. 05-50150 (3-30-07). The 9th (Tallman joined by Tashima and Fisher) joins all the other circuits in holding that the government does not violate 18 USC 201(c)(2) in providing compensation for witnesses in exchange for cooperation. This was a maritime seizure of a lot of cocaine, and some witnesses who cooperated received immigration considerations and stipends that totaled $200,000 (roughly the equivalent of 30 pieces of silver?). This, of course, was not paying for testimony, and the 9th stressed that cooperators have long been afforded assistance. The 9th does state that such information must be given to defense counsel AND that counsel must be allowed to vigorously cross examine on this issue.

US v. Cabaccang, No. 05-10352 (3-3-07). The 9th (Tashima joined by Hug and W. Fletcher) enter into a quagmire of what happens when a greater offense is reversed, and a lesser offense was previously vacated because of the conviction of a greater. (Think of it as an Escher print of confusion). The 9th decides that if a greater is vacated (here the CCE), the lesser conviction for drug conspiracy can be reinstated if it is not affected. This is in line with other circuits.

US v. Moran, No. 05-30215 (4-2-07). The 9th Cir (per curiam) looks at a tax fraud/mail fraud case and reverses because the court erroneously excluded defendant's testimony that she relied upon experts as hearsay. The 9th found no error in the government's admission of expert testimony as to how the scheme was set up, and the computer records. The discussion as to the expert revolved around whether his conclusion that the scheme was a "sham" was vouching or dealt with the intent issue. The 9th held that the expert did not vouch as to the other witnesses credibility, and the "sham." The computer records also were properly admitted in as furtherance of the conspiracy.

The reversal arose because the court excluded testimony from the defendant about what she had learned from outside experts. This was an abuse of discretion and because there was no 403 balancing, it was also reviewed de novo. The testimony would not have been hearsay because it did not go to the truth of the matter, but her state of mind. The intent aspect of the offense was "wilfulness" and the defense was "good faith." It should have been admitted and was not harmless.

US v. Heredia, No. 03-10585 (4-2-07)(en banc). The 9th en banc (Kozinski) revisits the Jewell/deliberate ignorance instruction. The 9th declines to overrule Jewell. It does stress that a deliberate ignorance instruction must at a minimum contain two prongs of suspicion and deliberate ignorance. Kleinfeld concurs but would add that "motivation to avoid criminal responsibility" should be an element of a willful blindness instruction. Graber dissents, joined by Pregerson, Thomas, Paez, arguing that the Jewell instruction as a matter of statutory construction is not proper because it misleads and misconstrues the mens rea in 21 USC 841. The dissenters argue that Jewell is both wrong (reducing mens rea) and unnecessary.

Sunday, April 01, 2007

Case o' The Week: Viva the Virgule, Almazan-Becerra. Disjunctive plea and modified categorical analysis

Judge Wallace authors a good (revised) opinion with a favorable new rule for the "modified categorical" analysis of drug priors. United States v. Almazan-Becerra, __ F.3d __, No. 05-10056, Slip. Op. at 3603 (9th Cir. March 29, 2007), decision available here.

: Nice win by CJA counsel Don Searles of Fenwick & West, S.F..

Facts: Almazan-Becerra got seventy months in federal court for illegal reentry. Slip Op. at 3606. A big chunk of that sentence was from specific-offense enhancements from two state drug priors. Id. at 3607. The first prior was Cal. H&S § 11360(a), a felony drug offense for conduct involve pot. Id. The second was for Cal. H&S 11379, a felony drug offense for transporting meth. Id. For the state pot case, Almazan-Becerra had pleaded guilty and admitted that he had transported or sold or offered to sell pot. Id. For the state meth case, he had admitted in his plea that he had transported meth. Id. At sentencing on the federal illegal reentry charge, the district court gave a sixteen-level enhancement on the pot, and/or a twelve-level enhancement for the meth, because it considered these priors “drug trafficking offenses” under USSG § 2L1.2(b)(1)(A).

Issue(s): “Almazan-Becerra argue that neither conviction qualifies for a drug-trafficking enhancement.” Id. at 3608. (For the pot case): “Almazan-Becerra contends that because the indictment and plea colloquy were repeatedly stated in the disjunctive, they do not ‘unequivocally establish’ that he is guilty of conduct that qualifies for the enhancement.” Id. at 3611.

Held: 1. Meth Case: “[T]he district court abused its discretion by applying the twelve-level enhancement for [the meth conviction].” Id. at 3611. “[T]ransportation of a controlled substance for personal use [is] outside the scope of the drug trafficking enhancements.” Id. at 3610. [There is no] evidence supporting the conclusion that the “1998 conviction was for transporting methamphetamine with intent to sell.” Id. at 3611.

2. Pot Case: “We have previously held that when a defendant pleads guilty to facts stated in the conjunctive, each factual allegation is taken as true. This appeal requires us to consider whether the same is true in a disjunctive plea. Because Almazan-Becerra pled to the disjunctive ‘either transporting or selling or offering to sell marijuana,’ he could have pled to transporting marijuana for personal use , which does not qualify for the enhancement . . . . We therefore hold that this disjunctive guilty plea does not ‘unequivocally establish’ that Almazan-Becerra committed a drug-trafficking crime.” Id. at 3612 (internal citations, quotations, and brackets omitted].

Of Note: What role do police reports have in the modified categorical analysis? Here, in the old pot prior, defense counsel had stipulated that “related police reports” contained a factual basis to support a guilty plea. Id. at 3607. The reports didn’t control in the modified categorical analysis, though, because the pot plea was in the disjunctive, and police reports (showing hand to hand sales) therefore don’t “unequivocally establish” that this was transport for sale.

It’s hard to reconcile this analysis with another Ninth Circuit case, the horrible Espinoza-Cano decision. In Espinoza-Cano, police reports associated with a plea controlled the modified categorical analysis. See 456 F.3d 1126 (9th Cir. 2006). The Espinoza-Cano panel tries to explain the difference in a footnote – we’re told it hinges on the “disjunctive” plea. In reality, the distinction makes little sense. (Espinoza-Cano is also lousy for sanctioning that deplorable refuge of the lazy and fearful prosecutor: the abuse of the third acceptance point. Regrettably, this regrettable decision just survived an en banc call).

How to Use: State practitioners, plead in the disjunctive! Statutes are often written in the disjunctive, and state crimes are often charged that way. A disjunctive plea can later save years at federal sentencing. Federal practitioners: be wary of any drug priors triggering the 2L1.2 enhancement that isn’t H&S 11352 – more drug priors seem vulnerable to challenge, and the custodial savings can be huge if one beats the drug trafficking enhancements.

For Further Reading: The “virgule” will save Alamazan-Becerra years off of his custodial sentence. Id. at 3612. For more about this “oblique stroke” of good fortune, see article here.

Steven Kalar, Senior Litigator. Website at


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