Monday, March 30, 2009

U.S. v. Bassignani, No. 07-10453 (3-25-09). Defendant was suspected of getting child porn on his office computer. The investigators went to his place of work, and questioned him for over two hours in an office conference room. The question for the 9th was whether this was "in custody" because no Miranda warnings were given. The 9th (O'Scannlain joined by Gould) used the five factors test outlined in U.S. v. Kim, 292 F.3d 969 (9th Cir. 2002) that focused on (1) language used; (2) confrontation with evidence of guilt; (3) physical surroundings; (4) duration; and (5) degree of pressure to detain. The district court had suppressed, but the 9th, parsing facts and mixed questions, viewed the custody question as de novo, and taking the facts as they were, still found the interrogation to be "not in custody" although it was a close question. The 9th considered the tone appropriate and not hostile, a discussion of evidence with probing by the defendant, the office a familiar place, the duration long but not excessive, and the pressure to stay not overbearing. Dissenting, Bea takes the majority to task for ignoring the factual findings of the district court as to the custodial nature of the questioning, and the court's conclusions that were contrary to the 9th's. Bea would affirm.

U.S. v. Ferguson, No. 07-50096 (3-27-09). Defendant, facing multiple counts of child pornography, decided to defend himself. He had been found competent, but his bizarre behavior and decisions, and his complete silence during trial, raised questions as to whether he should be allowed to represent himself. Subsequent to the conviction, the Supremes in Indiana v. Edwards, 128 S.Ct. 2379 92008) held that a different standard of mental competency applies when considering a defendant's request for self-representation as opposed to whether he should be tried at all. The 9th affirms on other trial and sentencing issues, but remands, in light of Edwards, the self representation finding in light of Edwards.

U.S. v. Marguet-Pillado, No. 08-50130 (3-27-09). Defendant had a Mexican mother and an unknown biological father. However, Michael Marguet, an American citizen, subsequently registered the defendant as his child, so he and his mother, whom Michael wanted to marry, could immigrate. The father became a step-parent. Defendant was granted permanent residency status. Years later, Defendant was convicted of a violent felony (attempted murder and burglary), and was deported. He returned and was charged with illegal reentry. The 9th affirmed the district court's denial of defendant's derivative citizenship claim. There had to be a blood tie, or adoption, or marriage, and there was not in this case, despite an American citizen parent becoming a stepfather and accepting the child as his own. The 9th also found that the right to confrontation under Crawford was not violated with the admission of his application for residency completed by his stepfather for his son 30-odd years ago. The 9th did hold, however, that the admission of his Application in his "A" file under the public records exception to hearsay was error. The relevant information, his stepfather's declaration that the defendant was born in Mexico, and was a citizen of Mexico, fell outside the exception for public records. The government made no other argument for another hearsay exception. The error was prejudicial as it was the evidence for alienage. The conviction is vacated and remanded. The 9th did not find insufficient evidence because it could also consider improperly admitted evidence (see note 16).

Since this was a Fernandez opinion (joined by Goodwin and Paez), we get the words "surd" and "obnebulated" tucked in.

Congratulationss to AFPD Greg Murphy of the Federal Defenders of San Diego for the win.

U.S. v. Carter, No. 05-50303 (3-30-09). In a splintered decision, the 9th upheld multiple convictions for bank robbery, remanded to see if a gun was indeed "brandished," and upheld a 471 months sentence as reasonable and that the court had indeed followed procedure by giving reasons for the sentence, although brief and cursory. Defendant was convicted of several bank robberies. He argued, as to guilt, that the use of guns was not forseeable in his conspiracy. He had come in late to the discussion of guns, missed it, and said he was not aware of their use. The 9th held that the robbery involved force, and use of guns was forseeable. As for brandishing in one robbery, the court said he used the gun, but did not make explicit that the weapon was brandished. Thus, a remand was necessary. The opinion on parts I-III was authored by Tashima and joined by Bea and Ikuta. Tashima dissents from IV (to be discussed), and so Ikuta authored that part. In that part, the 9th held that the court's mentioning its consideration of factors, and explanation of the guidelines, complied with the Supremes in Rita and the 9th in Carty/Zavala. The mentioning, and skeleton discussion, seems to be enough. Tashima, dissenting, is aghast. He argues that the court seemed not to have recognized, or acknowledge, the defendant's arguments about over-representation of criminal history and other mitigation. Tashima would require greater engagement with the presented evidence, and an indication that the factors were weighed. Tashima is wary of script sentencing.

Case o' The Week: Fewer "Fools for a Client," Ferguson, Faretta, and Self-Representation

Not crazy enough to be declared incompetent to face criminal charges, but too wacky to defend oneself at trial? The Ninth recites the new Supreme Court standard for this too-frequent situation, in United States v. Ferguson, No. 07-50096, 2009 WL 792485 (9th Cir. Mar. 27, 2009), decision available here.

Decision by Judge Graber, joined by Judge Clifton.

Facts: Ferguson was indicted on child porn charges for videotaping himself molesting a child. Id. at *1. “Throughout the pretrial proceedings, [he] exhibited bizarre behavior that befuddled everyone involved, including the district court.” Id. Ferguson sought to represent himself. During competency proceedings relied heavily on the Uniform Commercial Code as a defense to the child porn charges. Id. at *2. A shrink found that Ferguson was malingering. Id.

Ferguson fired his first set of lawyers, was speaking “gibberish,” but the district court found that he had an “absolute right” to represent himself. Id. at *3. Ferguson went to trial with advisory counsel. He made no opening statement, crossed no witnesses, presented no evidence, and made no closing argument. Id. at *3. The PSR came out at offense level 49 (Ed. note: !?! Only Probation could recommend OL 49 when the table only goes to 43!). The court sentenced Ferguson to 480 months. Id. He was represented by counsel on appeal.

Issue(s): “We turn now to the dominant issue in this case, which stands at the intersection of two well-known and important constitutional principles: a criminal defendant's right to self-representation, see generally Faretta v. California, 422 U.S. 806 (1975); and the prohibition against trying a criminal defendant who lacks ‘mental competency,’ see generally Dusky v. United States, 362 U.S. 402 (1960) (per curiam). The former principle holds that a defendant who knowingly, voluntarily, and intelligently waives the right to counsel generally must be permitted to represent himself or herself at trial. Faretta, 422 U.S. at 835. And the latter principle holds that a defendant lacks mental ‘competency’ to stand trial unless he or she has ‘a rational as well as factual understanding of the proceedings’ and ‘has sufficient present ability to consult with his [or her] lawyer with a reasonable degree of rational understanding.’ Dusky, 362 U.S. at 402 (internal quotation marks omitted). Those principles intersect where, as here, a defendant meets the Dusky standard for mental competence (despite irrational and nonsensical behavior) and, additionally, insists on representing himself during trial and sentencing. Must the trial court permit Defendant to represent himself?” Id. at *6.

Held: “[In Edwards, the Supreme Court] held that the question of mental competency for self-representation ‘calls for a different standard’ than the question of mental competence for assistance of counsel at trial . . . . The Court there recognized a ‘mental-illness-related limitation on the scope of the self-representation right.” Id. at *7. “In light of [Edwards] . . . the district court (understandably) applied an erroneous legal standard. . . The standard for a defendant’s mental competence to stand trial is now different from the standard for a defendant’s mental competence to represent himself or herself at trial.” Id. at *7. “Defendant’s actions suggest that he might have been ‘unable to carry out the basic tasks needed to present his own defense without the help of counsel.” Id. at *8.

Of Note: What is, exactly, the standard of competency for self-representation? We don’t know – the Supremes “declined to adopt a ‘specific standard’” in Edwards, id. at *7, and the Ninth doesn’t presume to do so here. The core question seems to be whether a defendant is able ‘to carry out the basic tasks needed to present his own defense without the help of counsel.” Id. at *8. The standard is also higher than the (shockingly low) requirements of competency to go to trial or to enter a guilty plea. Ultimately, however, it is up to the “discretion of the trial judge” who will “make more fine-tuned mental capacity decisions.” Id. at *7.

In other words, the Supremes and the Ninth punt on the issue and we'll have to fight out the details in the trenches. One commentator (see below) opines that Edwards is more about efficiency than the fair defense of the mentally-ill: watch for Ferguson abuse with tax-protesters, fraud-trust promoters, the flag-fringe folks, and the other gadflies of the federal courts.

How to Use: Edwards and Ferguson may help avoid some of the miserable “advisory counsel” train wrecks for seriously mentally-ill clients. Bear this pair in mind when “advisory” or “standby” counsel issues arise.

For Further Reading: For a trenchant criticism of Edwards, see Professor Mannheimer’s insights here. The Prof is right: applied with compassion, Edwards gives a district court new tools that may help prevent the 480-month mess that happened with Ferguson. Applied by an impatient trial judge, however, Edwards can be easily abused for the sake of efficiency.

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


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Tuesday, March 24, 2009

U.S. v. Gutierrez-Sanchez, No. 08-50254 (3-23-09). Beware what you plead to. The defendant here was apprehended illegally in this country. Under a fast-track plea, he plead to making a false statement (1001), with a government recommendation to 9 months. At the plea colloquy, he admitted the elements of an illegal re-entry after deportation, 1326. The court at sentencing felt that the real offense was illegal re-entry (there were 12 priors) and not a false statement, and so sentenced under that guideline, which resulted in a 16 month sentence. The defendant appealed. The 9th (Friedman joined by Bea and Ikuta) affirmed, finding that the plea allowed such a reference, that the Guidelines allowed such a reference, and that the 3553 factors were considered. The plea agreement was not binding on a specific sentence, and the government recommendation was only that.
U.S. v. Christensen, No. 06-30402 (3-23-09). The defendant, a prohibited possessor, was sentenced under ACCA. On appeal, he argues that one of his priors, for a statutory rape under a Washington code, was not a violent felony. The 9th agreed, following the categorical approach outlined in Begay v. U.S., 128 S.Ct. 1581 (2008) and Taylor. The stat rape may not be a violent felony because the act may not involve aggressive or violent behavior as the sexual intercourse here may have been consensual with a minor over 14. The 9th vacates and remands for consideration of a modified categorical approach.
Congratulations to AFPD Tina Hunt, E.D. Wa.
U.S. v. Smith, No. 05-50375 (3-24-09) (en banc). In an en banc decision, the 9th found error in the trial court's giving of a jury instruction for assault with a dangerous weapon in violation of 18 USC 113(a)(3). The instruction's error was that it stated that defendant used a prison knife rather than having the jury find that the defendant used a dangerous weapon. (Model Instruction 8.5 has since been changed). The weapon here in a prison stabbing was a shank made from melting styrofoam trays into a shank. The case was defended on the issue that the weapon was not dangerous because the injuries were not serious given the force used. The en banc court (Hawkins) found error but determined that it was harmless because of the evidence. In dissent, Berzon, joined by Schroeder, Reinhardt, Wardlaw, and Paez, argued that the evidence was disputed, and that the court could not say it was harmless.

U.S. v. Meija, No. 06-50220 (3-24-09). In a conviction and sentence for meth possession with intent, the 9th vacates and remands for resentencing because of an error in criminal history calculation. The court had given a point for a misdemeanor conviction for resisting arrest because the defendant had been given a two year probation sentence, with 16 days jail time, and then had the probation suspended. The 9th (Trott joined by Bright and Hawkins) held that the suspension of the probation sentence, and the case's dismissal three days later meant that there was not a two-year probationary term, and so under 4A1.2(c)(1), it is not counted. The 9th affirmed the conviction, finding that his statements were voluntary, and that the shackling of defendant did not violate due process because the jury did not see the restraints.

Sunday, March 22, 2009

Case o' The Week: Potato Driggers, J/x, Mens Rea, and Jury Instructions

The defense wins on the jurisdictional hook in federal jury instructions, and the relation of that jurisdictional element to the mens rea requirement. United States v, Driggers,__ F.3d __, No. 07-31090, 2009 WL 692003 (9th Cir. March 18, 2009), decision available here. (The defense ultimately loses, however, on harmless error review . . . . )

Players: Decision by Chief Judge Kozinski, joined by Judge Betty Fletcher. Concurrence by Judge Rawlinson.

Facts: Paul Driggers (twice) asked Robinson to travel from California to Idaho to kill his ex-wife. Id. at *1. Robinson (who later snitched) testified that he met Driggers in the spud state, and agreed to the task for $10k. Id. Driggers put a $1,000 “deposit” in Robinson’s bank account. Id.

Now a snitch, Robinson returned to Idaho, had a long (recorded) conversation with Driggers, and Driggers confirmed that the plan was still on. Id. Driggers was arrested by surveilling agents and charged federally with causing Robinson to travel interstate to undertake a murder-for-hire, 18 USC § 1958. Id.

At trial, Driggers contested the model jury instruction, which required proof 1. of interstate travel; 2. that Driggers intended a murder be committed, and 3. that Driggers intended to pay Robinson for the murder. Id. Driggers argued that the government instead had to “prove a connection between the travel and the intent to murder.” Id. The proposed defense jury instruction was denied and Driggers was convicted.

Issue(s): “We consider the intent requirement of 18 U.S.C. § 1958, which prohibits using interstate commerce facilities in the commission of murder-for-hire.” Id. at *1.

Held: “The statute itself, and our interpretation of it in Ritter, make clear that the defendant must have had a murderous intent when he caused another person to travel across state lines. In other words, the causing of the travel (the actus reus) must have been done with the intent that a murder be committed (the mens rea). The instruction given by the district court didn’t adequately explain this. The instruction would have allowed the jury to convict even if it found that the defendant did not form a murderous intent until after the interstate travel was completed. . . . The instruction was therefore misleading and inadequate to guide the jury’s deliberation.” Id. at *2.

(But, the conviction was nonetheless upheld on harmless error review). Id. at *3-*4.

Of Note: There’s two interesting little side-discussions in Driggers. The first is the meaning of a “jurisdictional” statutory requirement. Id. at *3. This term refers to an element that is a jurisdictional hook (like interstate travel) which the defendant needn’t have had in mind when he committed the crime. Id. In other words, Driggers could have committed this federal crime without intending that someone cross state lines. Driggers had to, however, intend to cause someone to travel to commit murder.


Here’s a hypo: assume a defendant hires a Las Vegas killer to murder the defendant’s wife in Reno, but the defendant never knows how the hitman plans to travel. If the hitman drives straight north on I-95 through Death Valley (staying in Nevada), the defendant is guilty of some state offense only. If the hitman gets a cheap Southwest flight from Vegas to San Francisco, though, and then drives a rental car to Reno – then the defendant has committed a federal crime. The defendant must induce the hitman to travel to murder, and (whether known to the defendant or not) the murderer must travel interstate, to satisfy the federal statute.

How to Use: The second interesting side discussion in Driggers is on “constructive amendments.” Id. at *3. Trying to dodge harmless error review, Driggers argued that the defective standard instructions were a constructive amendment from the indictment (which alleged that he caused travel with the intent that murder be committed). Id. (NB: Constructive amendments require per se reversal).

The Chief Judge doesn’t bite: he explains that “constructive amendments occur when the prosecutor proves, or the court instructs the jury to convict on, materially different facts or substantially different crimes than those charged in the indictment.” Id. at *3. That didn’t happen in this case. Id. While Driggers' gambit didn’t work, the approach illustrates a solid appellate strategy: to avoid winning the battle and losing the war, choose appellate arguments with the standard of review in mind.

For Further Reading: For more details on this salacious case, visit the USAO’s press release here.

Idaho spud picture from

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


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Friday, March 20, 2009

U.S. v. Driggers, No. 07-30190 (3-18-09). Defendant appealed his conviction for murder for hire, 18 U.S.C. 1958, and the 9th considered the issue of the jury instruction. The defendant had asked the hiree to come to Idaho to murder his ex-wife. The hiree crossed state lines. The jury instruction, however, did not say that the defendant had to have the intent for the murder when the travel took place. The 9th (Kozinski joined by B. Fletcher) found error, because the jury could have found that the interstate travel had occurred at any time, or that it occurred without intent. However, the error was harmless given the overwhelming nature of the evidence, not helped by tape recordings about why the hiree should travel. In a concurrence, Rawlison questions the finding of error, since the instruction tracked the statutory language. The majority's finding of error looked to precedent in other circuits, and Rawlison would say that if the statutory language is followed, that should be good enough.

U.S. v. Flores, No. 08-30076 (3-18-09). Defendant tried to cooperate: he met with the government, gave good information, and appeared to act in good faith. The government shrugged, though, and said that since no indictments nor arrests resulted, the cooperation was not "substantial." Under the plea, the government had sole discretion to move for a substantial assistance motion. The 9th (Reavley joined by Tallman and M. Smith) also shrugged, holding that it is difficult for the court to determine what is substantial or not, and that the terms of the plea are binding unless the government acted in bad faith, and that could not be found here. The district court did not err in deferring to the government's assessment of substantial assistance; nor did the court err in refusing a hearing. When it comes to 5Ks, the prosecutors do hold all the power.

Sunday, March 15, 2009

Case o' The Week: Fish-er Cut Bait on the Fourth? Ninth Guts Warrant Requirement for Exigency Cases

Writing for the majority in a very disappointing en banc decision, Judge Tallman (right) holds that a situation creating exigent circumstances -- once underway and if still on-going -- obviates the need for an arrest warrant, even if there is ample time and opportunity to get the warrant. Fisher v. City of San Jose, No. 04-16095,__ F.3d __, 2009 WL 606132 (9th Cir. March 11, 2009) (en banc), decision available here. A divisive opinion that arguably parts way with longstanding Fourth Amendment jurisprudence, and that sparks two forceful dissents.

Players: Decision by Judge Tallman, dissents by Judges Paez and Reinhardt.

Facts: Fisher, drunk, confronted a security guard with a rifle in his apartment complex. Id. at *1. The situation devolved until over sixty San Jose police officers were involved. Id. at *2. Rambling Second Amendment diatribes, Fisher threatened police from inside his apartment and loaded over a dozen rifles stashed in strategic locations. Id. He was last seen holding a rifle at 6:30 am. Id. at *3.

A stand-off developed, until at 2:15 p.m. twelve hours after the event began – Fisher began to surrender. He was shot with a rubber bullet when he hesitated. Id.

When he sued San Jose and the cops in a § 1983 action, the federal court granted his Rule 50(b) motion, awarded him a buck, and ordered Fourth Amendment training on the theory that the cops had time to get an arrest warrant, and didn’t. Id.

The civil defendants appealed. San Jose and the cops conceded that Fisher was “seized” within the apartment, and Fisher conceded that at 6:30 am (when he last brandished a gun) an exigency existed that justified his warrantless arrest. Id. at *5.

A three-judge panel of the Ninth affirmed the district court’s award (twice); the case went en banc.

Issue(s): “[I]n an armed standoff, once a suspect is seized by virtue of being surrounded and ordered to surrender, [may] the passage of time . . . operate to liberate that suspect, re-kindle the arrest warrant requirement, and require police to assess with each passing minute whether the circumstances remain exigent [?]” Id. at *6.

Held: We hold that, during such a standoff, once exigent circumstances justify the warrantless seizure of the suspect in his home, and so long as the police are actively engaged in completing his arrest, police need not obtain an arrest warrant before taking the suspect into full physical custody. This remains true regardless of whether the exigency that justified the seizure has dissipated by the time the suspect is taken into full physical custody.Id. at *1.

Of Note: In a tempered and persuasive dissent, Judge Paez observes that the majority has flatly ignored the second part of the exigency rule: that an exigency exists, “and that there was no time to obtain a warrant before taking action to alleviate the exigencies.” Id. at *14 (emphasis in original). The cops had Fisher pinned down for at least eight hours since the 6:30 exigency, some had gone back to their station, and there was a D.A. and magistrate on call who could have processed an arrest warrant. Id. at *17. In Judge Paez's view, the majority decision “undermines, rather than clarifies, our Fourth Amendment jurisprudence.” Id.

In a less-tempered, but equally persuasive, dissent, Judge Reinhardt (joined by Chief Judge Kozinski and Judges Pregerson, Thomas, and Paez) challenges the majority’s characterization of controlling authority: “The majority may wish the law were different, but we must apply it as it is, and the law as of today limits warrantless intrusions into the home for the purposes of a search or seizure to instances in which exigent circumstances exist - that is, circumstances in which the police do not have time to procure a warrant.” Id. at *22.

How to Use: The dissenters are right: this is a disturbing decision that veers radically from Fourth Amendment precedent. Making matters worse, Judge Tallman makes little effort to limit this dramatic new Fourth Amendment rule to the extraordinary circumstances of this case. Fisher guts 50% of the exigency analysis; the focus, now, must apparently be on whether an actual exigency existed.

Maybe the majority’s phrase in its holding,“so long as the police are actively engaged in completing his arrest,” gives us a little hope for distinction – but this is a faint ember from which to flame an argument.

For Further Reading: This opinion is an example of the “classic 9th U.S. Circuit Court of Appeals contretemps,” opined the Recorder’s Dan Levine. See article here. John Wesley Hall, Jr., over at Fourth, gets it right: “This is another example of hard cases make bad law.” See article here.

Image of Judge Richard Tallman from

Steven Kalar, Senior Litigator N.D. Cal. Federal Public Defender. Website at


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Wednesday, March 11, 2009

U.S. v. Hilgers, No. 08-30078 (3-11-09). The 9th affirms an above-guidelines sentence as reasonable. The offense was mortgage fraud, and the defendant manipulated lendees and lenders as a mortgage broker. His guidelines were 33 to 41 months. The PSR painted an unflattering portrait of a manipulator, and questioned his sincerity. The court considered the 3553 factors, and found that the defendant's ability to manipulate and secure trust from family, friends, and lenders called for a higher sentence, as well as his past criminal history. The sentence was five years which, while it was three years longer than the guidelines, was still reasonable under the circumstances and the analysis of the 3553 factors.

U.S. v. Hammons, No. 08-50329 (3-11-09). The 9th Circuit finds that in sentencing on a SR violation, the court must state the reasons for the sentence and must calculate the guidelines accurately. Here, the defendant had a drug conviction, and was on supervised release, when he suffered a DUI conviction. Probation recommended treatment. At disposition, the defendant said he was trying to deal with his problem, and wanted treatment. The court asked the defendant how driving drunk furthered his attempts at recovery and later stated that he (the court) always thought about the sentence. Under a plain error review, the 9th (Pregerson joined by D. Nelson and Singleton) held that more was needed. The court had to explain why the sentence was imposed, and explain how it fit with the purposes of SR, which is different from sentencing. A SR sentence for violation is not punishment for other crimes, but for a breach of trust. There is also a question of how accurate the SR report was as to the criminal history. The court had to assure that the guidelines were accurate for a SR violation. A good case that applies rigor to SR dispositions.

U.S. v. Krstic, No. 08-30022 (3-10-09). How to read a badly drafted statute? The 9th considers 1546(a) which makes it a crime to have a fraudulent immigration document, and arguably one that was authentic but secured by a false statement. The "arguably" is there because the statute does not make it clear whether Congress meant that the document itself had to be false or whether it wanted to broaden the scope. O'Scannlain, joined by Graber and Bybee, weigh the statutory interpretations, and decide that of course Congress wanted to have as broad a statute as possible. The 9th looked at former statutes, and policy, and parsed the words carefully. Oh yes, the rule of lenity did not apply. The defendant here was a Serbian soldier who got a valid immigration document, but who supposedly made a false statement in applying, stating that he never served in the military. The trial court had dismissed the indictment. The 9th reverses and remands.

U.S. v. Colson, 08-10282 (3-10-09). The 9th affirms that there is a lack of jurisidiction to review the decision by the district court's regarding a discretionary reduction of sentence under 18 USC 3582(c). U.S. v. Lowe, 136 F.3d 1231 (9th Cir. 1991) is still binding and is not overruled by U.S. v. Carty, 520 F.3d 984 (9th Cir. 2008) (en banc).

Monday, March 09, 2009

U.S. v. Boulware, No. 05-10752 (3-9-09). The 9th affirms the district court's holding that the defendant failed to make a sufficient showing of proof to support a "return of capital" defense in a tax prosecution.

U.S. v. McFall, No. 07-10034 (3-9-09). The 9th reversed five convictions in a public corruption case. The defendant was a lobbyist and local elected official who allegedly played fast and loose with influence and contracts. The reversed convictions were for insufficient evidence on attempted extortion and conspiracy to extort because, under a Hobbs Act prosecution, putting barriers for a competitor was not the same as extorting a benefit and obtaining a benefit. The trial court also erred in its jury instruction as to "official right" by failing to include an aiding or abetting or conspiracy charge when the allegation was for acting in concert with another. Finally, the court erred in excluding the exculpatory grand jury testimony of one witness.

U.S. v. Streich, No. 07-30105 (3-9-09). The issue is whether a criminal defendant who pled guilty can challenge the inclusion of information in his presentence report that might put him at risk of subsequent civil confinement. The defendant plead guilty to a sexual abuse of a minor charge. In his plea agreement, the government said it would not prosecute for any other known offense. During the PSR interview, the defendant signed waivers for past information, including treatment for a juvenile sex conviction. The treatment accounts were detailed in the PSR. The defendant argues that this information can be used under the Adam Walsh Act for a civil commitment. The 9th concludes first that the government did not breach the plea by the inclusion of this information. Significantly, the 9th also holds that the possible use of this information in a civil commitment proceeding is a future contingency, and that it is not ripe. The BOP can make use of the information for other purposes (security, etc.) but as for commitment, and Fifth Amendment rights, that has to be postponed to when, and if, such a proceeding takes place. In a concurrence, Kleinfeld argues that the claim is ripe now, and that such information is proper. This case presents critical issues for those representing defendants charged with sex offenses, and whether information disclosed during the PSR and treatment can be used. If it can, the defendant may face lifetime commitment. Be careful of what the defendant says, or signs, in the PSR interview.
U.S. v. Brobst, No. 07-30284 (3-9-09). The 9th upheld search warrants for child pornography, but remands for resentencing because convictions for receipt and possession of child pornography constitutes double jeopardy. In discussing whether the search was reasonable, the 9th rejects the defendant's contention that state law (Montana) must be looked to in the analysis rather than federal. The 9th stresses that the Supremes recently in Virginia v. Moore, 128 S.Ct. 1598 (2008) have precluded that argument, and that the litmus test is reasonableness under the Constitution.

U.S. v. Franco-Flores, No. 08-10101 (3-9-09). A Nevada deferred sentence to attend drug court still imposes conditions so that it is counted under criminal history.

Case 'o the Week: Ninth Heavy Hahn-ded on Rule 32(h) Notice Requirements

Does a defendant have the right to know they're going to get hammered, before the gavel falls? In a disappointing decision, a per curiam panel of the Ninth holds that briefing and arguing a departure issue is enough "notice" under Federal Rule of Criminal Procedure 32(h) to permit an upward departure -- even if the district court hasn't given notice of its intent to do so. United States v. Brett Hahn, __ F.3d __, No. 07-30324, 2009 WL 530933 (9th Cir. Mar. 4, 2009), decision available here.

Players: Per curiam decision with Chief Judge Kozinski, Judge Betty Fletcher, and Judge Johnnie Rawlinson.

Facts: Hahn got a heavy state sentence in Montana for criminal endangerment and intimidation – then the USAO prosecuted him for felon-in-possession, arising out of the same incident. Id. at *1. The PSR hit Hahn for the § 2K2.1 + 4 bump for possessing the gun during the course of another felony (the state offense), but was silent on whether the federal sentence should be concurrent or consecutive. Id.

The defense (correctly) argued in its briefs and at the sentencing hearing that USSG § 5G1.3 requires the federal sentence to be run concurrent, when the state offense increases the federal guideline range. Id. The government argued for an upward departure from Guideline § 5G1.3, seeking a consecutive sentence. Id.

The district court seemed inclined to agree with the government, but ran the sentence concurrent because it hadn’t given notice of its intent to depart upwards before the sentencing hearing. Id. The government appealed. Id. at *2.

Issue: “The government argues that the district court erred when it found inadequate notice because both parties briefed the issue of whether the court should impose a concurrent or consecutive sentence in their sentencing memoranda.” Id. at *2.

Held: “We agree. We vacate Hahn’s sentence and remand his case to the district court for resentencing.” Id. at*2. “The district court itself is required to give notice of its intent to depart only when the PSR and the parties’ prehearing submissions fail to identify the ground for departure. Fed. R. Crim. P. 32(h).” Id. “[W]e find that because the parties’ own sentencing memoranda discussed the propriety of concurrent or consecutive sentences, Hahn cannot claim that he had no notice that the district court might consider imposing a consecutive sentence.” Id.

Of Note: Chief Judge Kozinski concurs in the per curiam decision “without reservation.” Id. at *3. He writes a special concurrence, though, to emphasize that the district court erred by imposing the concurrent sentence if it thought the “reasonable” sentence should have been consecutive. “If a judge believes that he can’t impose the right sentence without giving notice, he must give notice – and grant a continuance if necessary – rather than imposing the wrong sentence.” Id. at *3.

How to Use: This little per curiam decision takes an unwelcome bite out of sentencing-notice rights for upward departures. As a practical matter, how often does a district court sua sponte depart upwards without someone with a prosecutorial bend – be it an AUSA or a probation officer – urging the departure and its basis before the sentencing hearing? This, according to Hahn, is “notice” to the defense that the court may indeed depart upwards.

One distinction bearing emphasis is that in Hahn both parties briefed and fully argued the concurrent/consecutive issue before the sentencing hearing. A casual reference in the government’s briefs alone may not satisfy the Hahn notice requirement before an upward departure is imposed (although the Hahn PSR’s silence on the departure issue is a worrisome fact that will muddy future notice analyses).

For Further Reading: For an interesting and useful discussion of Rule 32 notice requirements in the post-Booker world, see Sentencing Resource Counsel Amy Baron-Evan’s memo, “After Irizarry: . . .”, available here .

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


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Friday, March 06, 2009

U.S. v. Hahn, No. 07-30324 (3-4-09). The defendant was serving a state sentence when he was convicted of being a felon in possession. At sentencing, the parties argued in memos about whether the sentence should run consecutive, or concurrently, or whether a departure was called for under 5G1.3(b). The district court seemingly reluctantly ran the sentence concurrently, despite misgivings about deterrence, because the court had not given notice of a possible departure under FRCP 32(h). "No need to," held the 9th in a per curiam decision, because all the parties were arguing over the issue and facts, and all were aware. Even the court had said that it was briefed. The case is remanded to allow for resentencing. In a concurrence, Kozinski stresses that the sentencing judge should have given a continuance rather than feel compelled to go further.

Tuesday, March 03, 2009

U.S. v. Strickland, No. 08-30091 (3-2-09). The 9th considers whether a prior Maryland conviction for "child abuse" qualifies as a predicate offense to increase a federal minimum/maximum in a child pornography case. It does. However, it does only under a modified categorical approach, because the state statute used to cover both physical and sexual assault under "child abuse." The modified categorical approach was met because, while the docket of the charging counts was uncertified, the defendant later signed sex registration forms in two states, and the forms related or made reference back to the Maryland conviction.

Sunday, March 01, 2009

Case o' The Week: Panel Finds Assault Issue Aggravating, Esparza-Herrera

In Bananas, Woody Allen cross-examines himself during a sedition trial -- and breaks himself down during withering questioning. The scene comes to mind when reading Esparza-Herrera, where a three-judge panel "concurs" (really, dissents) from its own per curiam decision. United States v. Esparza-Herrera, __ F.3d __, No. 07-30490, 2009 WL 455512 (9th Cir. Feb. 25, 2009), decision available here.

Nice win from a skeptical panel by Montana AFPD Thomas Monaghan.

Facts: Esparza-Herrera, a § 1326 defendant, got hit with the sixteen offense-level specific offense adjustment for an Arizona assault prior. Id. at *1. The PSR described this assault as the defendant breaking into his girlfriend’s house and beating her for four hours. Police said she had blood on her hands and face, both eyes were swollen shut, and she was covered in bite marks. Id. at *1 & n.2. [Ed. Note: Recall that PSRs cannot be used as evidence for the modified categorical analysis].

Because this Arizona assault statute can be triggered by “ordinary recklessness,” the district court found that the assault conviction did not meet the generic, categorical definition for the “assault” crime of violence. Id. at *1. (There were insufficient documents to support a “crime of violence” finding under the modified categorical analysis.) Id.

Issue(s): “The United States Government appeals the district court’s ruling that Gerado Esparza-Herrera’s prior conviction for aggravated assault under Arizona Revised Statutes . . . was not a conviction for a ‘crime of violence’ under section 2L1.2 of the United States Sentencing Guidelines.” Id. at *1.

Held: “We [in the Ninth Circuit] do not use the common sense approach. Instead, we must apply the categorical approach even when the object offense is enumerated as a per se crime of violence under the guidelines.” Id. at *3 (emphasis added). “We hold under the categorical approach, assessing the law of other jurisdictions and scholarly comment, ordinary recklessness is a broader mens rea requirement for aggravated assault than is ‘recklessness under circumstances manifesting extreme indifference to human life.’ Accordingly, we conclude that [this Arizona statute] is broader than the Model Penal Code’s definition of aggravated assault because the Arizona statute alone encompasses acts done with ordinary recklessness.” Id. “We conclude that the district court correctly denied the government’s request for a 16-level sentencing enhancement . . . .” Id. at *5.

Of Note: In an unusual twist, Judge Gould “concurs” (though effectively, dissents) from his own per curiam decision – as do Judges Tallman and Callahan. Their complaint is that the Fifth Circuit takes what this panel describes as a “common sense approach.” The Fifth would call this assault a “crime of violence” despite the niggling details of the statute of conviction. Id. at *5.

By contrast, Judge Gould complains, “in this esoteric sphere of [the Ninth’s] legal analysis our circuit precedent in substance says that common sense is out and instead we must canvas and assess what the majority of jurisdictions have concluded.” Id.

There’s much to criticize in the concurrence’s critique, but the easiest rejoinder is that we’ve already won this issue: this remains the Ninth, not the Fifth, Circuit. Lest we get too cocky, though, beware that this trio seems to be gunning for en banc or Supreme Court review of the Ninth’s rule.

As an aside, it is fascinating that the government (and many district courts) remain so slavishly devoted to “advisory” guidelines that Section 3553(a) sentences – which would presumably rectify this breach of “common sense” – are still verboten. The USSG-Emperor’s clothes are still looking spiffy in federal district courts (thankfully, at times).

How to Use: Esparza-Herrera is a grudging lead decision for cases where an assault prior triggers a “crime of violence” specific offense adjustment – there’s many new little holdings on “recklessness” as a foundation for a “crime of violence” predicate. Worth a cross-check in federal cases involving assault priors.

For Further Reading: Must a defense attorney advise an alien client that a conviction will be an agg felony, triggering mandatory deportation? The Supremes will answer that question for us next term: cert. was granted in Padilla v. Kentucky on February 23, 2009. See summary here.

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


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