Monday, June 28, 2010

U.S. v. Buzo-Zepeda, No. 09-50190 (6-25-10) (N. Smith with Schroeder and Fisher). This is a Sentencing Guidelines criminal history counting case. California has what is known as a Johnson waiver when it comes to state sentences. A Johnson waiver is when a state defendant waives incarceration credit for pretrial custody in order for the state court to sentence him longer to jail. Why? The state law allows jail only for sentences of a year or less. This avoids going to the California prison system. Does a Johnson waiver, which pushes the ultimate sentence over 13 months (see where this is going) count as a sentence imposed of over 13 months. Yes, holds the 9th. The sentence is the time spent in custody in a sentence.

U.S. v. King, No. 50665 (6-25-10) (Gwin, D.J., with Nelson and Gould). This is an appeal from a SR revocation. There are a number of interesting issues, including one of first impression. The issue is whether a violation which occurs before a case is transfered from one district to another (ED Mich to C.D. Ca) can be used as a basis for revocation in the new district. Sure, says the 9th. If not, there are gaps in supervision, and the risk of violations without consequences. It also would conflict with two other circuits. The 9th also upholds conditions not to associate with felons. The 9th finds that such a condition is narrowed by the mens rea of knowing the persons are felons. Here, the PO told the defendant to avoid knowing felons. The 9th also upholds the condition of not communicating with those in prison.

Saturday, June 26, 2010

Case o' The Week: A Batson Challenge (with No Jury) - Restitution

The Ninth crafted several new circuit rules in a case this week, in a Batson challenge where no jury ever entered the courtroom. United States v. Batson,__ F.3d __, 2010 WL 2473234 (9th Cir. June 21, 2010), decision available here.

Players: Battle lost, war won by CD Cal AFPD Kathryn A. Young. Decision by Judge Canby.

Facts: Batson’s tax return business falsified tax returns to earn her clients (undeserved) returns. Id. at *1. Charged with nine counts of miscellaneous federal crimes, she ultimately pled guilty “to one count of aiding and assisting in the preparation of a single fraudulent tax return, the loss caused by the conduct apparently being somewhere between $4,571 and $8,028.” Id. In her plea agreement Batson stipulated that all of the tax forms she generated almost a million dollars in fraudulent returns. Id. Batson was sentenced to a year of custody and a year of supervised release. Id.

The district court imposed a restitution order of $176,854: the money the feds couldn’t get back from the taxpayers. Id. Batson objected to the restitution order and appealed. Id.

Issue(s): “This appeal presents a question of first impression in this circuit, namely, whether federal courts may order restitution as a condition of supervised release for offenses set forth in Title 26 of the United States Code (the Internal Revenue Code.”) Id. at *1.

Held: “[T]he Supervised Release Statute, together with the Probation Statute, unambiguously authorizes federal courts to order restitution as a condition of supervised release for any criminal offense, including one under Title 26, [the tax code], for which supervised release is properly imposed. Id. at *3. (emphasis in original). “Accordingly, we hold that 18 U.S.C. § 3563(b)(2), which grants federal courts broad discretion to order restitution as a condition of probation, and 18 U.S.C. § 3583(d), which extends that grant to supervised release, authorizes federal courts to order restitution as a condition of supervised release for any criminal offense, including those set forth in Title 26, for which supervised release is properly imposed.” Id. at *4.

Of Note: AFPD Young lost her creative challenge to the expansive power of the district court to order restitution, but also brought this novel issue: For substantive offenses (not conspiracies, etc.), is the district court statutorily authorized to impose restitution beyond the offense of conviction?


As Judge Canby explained, “We now join our sister circuits in holding that an award of restitution ordered as a condition of supervised release can compensate ‘only for the loss caused by the specific conduct that is the basis of the offense of conviction,’ Hughey, 495 U.S. at 413, so long as that offense does not involve an element of scheme, conspiracy or pattern of criminal activity.” Id. at *5.

Mull this new holding over a bit: Batson likely saved over $160k in restitution by pleading to a single substantive count. A nice win for this particular defendant, but a likely new complication for negotiating future fraud plea agreements.

How to Use: If restitution is a real issue, plead to a sole count, low-loss, substantive charge (while you can).

For Further Reading: Political affiliation can be a poor predicator of judicial outcomes. Case in point is this week’s habeas decision Murdoch v. Castro, 2010 WL 2473235 (9th Cir. June 21, 2010) (en banc). Clinton-appointee J. Tashima writes for the en banc court, denying habeas relief when a co-defendant wrote to his attorney and explained that he had been coerced into falsely implicating a murder defendant at trial – and that fact never made it before the jury. Id. at *1.

Reagan-appointee C.J. Kozinski writes a blistering dissent, beginning with “If it wasn’t for bad luck, Murdoch wouldn’t have no luck at all. He’s wakin’ up this mornin’ in jail when there’s strong proof he ain’t done nothing wrong. I would certainly defer to a jury’s contrary verdict if it had seen this evidence and convicted Murdoch after a fair trial, presided over by a fair judge, followed by an appeal where the justices considered all of his constitutional claims. But Murdoch had none of these.” Id. at *11 (Kozinski, C.J., dissenting).

The Chief attacks the unfairness of AEDPA-whitewashing, and concludes that the majority’s decision is a “truly spectacular miscarriage of justice.” Id. at *24. Start Kozinski’s dissent to enjoy his colorful language - you’ll finish it because it is a compelling attack on the injustices of California appellate “review” and the toothless tiger of post-AEDPA federal habeas.

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


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Tuesday, June 22, 2010

Murdoch v. Castro, No. 05-55665 (6-21-10) (en banc) (Tashima for plurality of Kleinfeld, Ikuta, Callahan, and N. Smith; Silverman concurrence; Kozinski dissents with W. Fletcher and Wardlaw; Thomas dissents with McKeown). The petitioner here was convicted of a murder 13 years before. The conviction was based on shaky eyewitness identifications and testimony by a co-defendant, who said he was pressured by the state. The co-defendant stated he had written a letter to the prosecutor saying he was coerced and that the petitioner was innocent. The letter was not disclosed to the defense because of attorney-client privilege. In this en banc decision, the 9th holds that no Supreme Court decision has held that the attorney-client privilege must give way under certain circumstances to the Confrontation Clause. Thus, the state's decision denying the challenge was not contrary to Supreme Court decisions. The state, moreover, and federal courts have held that any error was harmless. Silverman concurs, stating that the defense counsel erred by not moving to strike the testimony of the co-defendant for failure to be able to cross. Kozinski writes a blistering dissent, lambasting the state trial court for pressuring the co-defendant to testify at the petitioner's trial and he (the court) would give him a break at sentencing. Kozinski derides the state courts for missing the issue, and failing to address it as required; he attacks the majority for misreading AEDPA and for a crabbed view of precedents; and he laments the failure of the habeas system to address the wrong done. Thomas joins and dissents also for finding or error even if the state courts had addressed.

U.S. v. Batson, No. 09-50238 (6-21-10) (Canby with Hall and O'Scannlain). The 9th considers whether the court can order restitution for title 26 (IRS) offenses. The answer is "yes" but only for the count of conviction if it is not for a conspiracy or scheme. The defendant plead guilty to aiding and abetting one fraudulent tax return. She was fined and ordered to pay almost one million dollars in restitution. The restitution for the single count was around $12,500. The defendant appealed, arguing that the VWPA and the MVRA does not authorize such restitution. The VWPA is limited by Hughey to amounts arising from the count of conviction (except conspiracy) and the MVRA applies to crimes of violence or crimes against property. This is true, but the court, holds the 9th, can order restitution under probation and supervised release terms. The restitution, though, again is limited to just the count of conviction, and so the sentence is vacated and remanded.

Monday, June 21, 2010

Banjo v. Ayers, No. 08-56512 (6-17-10) (Tallman joined by O'Scannlain and Block, D.J.). The petitioner requested equitable tolling to allow his federal petition to be heard. He had been convicted in California state court of sodomy and kidnapping (25 to life). The 9th held that his petition was barred under AEDPA's statute of limitations. He had filed a PCR in state court; it was denied, and denied on appeal, too. Defendant then filed a second petition in state court, which was also denied. This petition gave attached evidence (witness declarations) that related to the claims in the first petition. The state court said "too bad, too late." This delay, of about four years, made his federal out of time and out of luck.

Sunday, June 20, 2010

Case o' The Week: Graber and Waiver - Laurienti and 10b-5

In a new rule for white collar defense, Judge Graber (left) holds that brokers can be criminally liable for failure to disclose commissions - if they owe a fiduciary duty to their clients. United States v. Laurienti,__ F.3d __, 2010 WL 2266986 (9th Cir. June 16, 2010), decision available here.

Before you write-off Laurienti as irrelevant to indigent defense, note that a PD had part of this case, and that the decision is thick with holdings that apply outside of the white collar context.

Decision by Judge Graber. Hard-fought case by, among others, SF appellate attorney Dennis Riordan, CD Cal AFPD Jonathan Libby, and Oakland appellate attorney Karen Landau.

Facts: Laurienti and his co-defendants were senior brokers in a firm charged with having a “pump and dump” scheme – pushing select “house” stocks on clients and getting secret “bonus” commissions for the sales. Id. at *1. They were charged with, among other things, securities fraud conspiracy under the conspiracy statute (§ 371) and securities violations (including 17 CFR § 240.10b-5).

A key legal theory was that the brokers failed to disclose these bonus commissions. Id. at *4-*5. Although the government asked for one, the trial court rejected an instruction requiring the jury to find the brokers owed their clients a fiduciary duty. Id. at *11. All were convicted at trial.

Issue(s): “[W]hether, and (if so) in what circumstances, a broker’s failure to disclose bonus commissions can give rise to criminal liability.” Id. at *5.

Held: “[W]hen a relationship of trust and confidence exists between a broker and client, a broker must disclose all facts material to that relationship.” Id. at *7 (emphasis added). . . [W]e reject Defendant’s argument that a broker never has a duty to disclose bonus commissions.” Id.

Of Note: This is a long, dense, and complex decision with many holdings important to indigent defense beyond the core 10b-5, white collar analysis. Here’s one of concern – the central holding of the case, on 10b-5 liability, is probably irrelevant because a defendant can conspire to commit securities fraud even if the underlying act isn’t a crime. Id. at *4-*5 (“In short, even if the failure to disclose was perfectly legal in all circumstances, the government still met its burden to establish a conspiracy.”) It is a troubling and expansive theory of criminal liability, reminiscent of a similar holding in the recent United States v. Judy Green decision. See blog here.

Another unwelcome holding is that the government can use “guilt-assuming hypotheticals” when asking questions of its own fact witnesses. Id. at *16. On a brighter note, the Court found the district court erred by limiting the testimony of a defense securities expert. Id. at *15 - *16 (though, sadly, it was harmless error).

How to Use: Because there was no instruction requiring the jury find a fiduciary relationship for these defendants, there was error in this trial. A big question for the Ninth was how to review this error – was it waived by the defense, given Laurienti’s opposition to the government’s proposed “fiduciary” instruction? Id. at *11-*12. Judge Graber concludes that the legal issue was waived by Laurienti and – of greater interest – found it was waived by other the defendants as well. Why? Because, in a familiar practice, the trial judge had held that an objection raised by one defendant would be deemed to have been raised by all. Id. at *12. Judge Graber explained that the co-defendants’ silence, in the context of Laurienti’s fight about the jury instructions, could constitute waiver of the legal argument. Id.

It is a worrisome holding for multiple defendant cases, and a reminder to keep a sharp eye out for legal arguments or objections raised by co-counsel that can be imputed against you on appeal (even if you remain silent).

For Further Reading: Quon? Gone. The Ninth Circuit, dragging the nation into the 21st century, gave us the great Quon decision on the Fourth Amendment search of a text pager. 529 F.3d 892 (9th Cir. 2008).

But, what the Ninth giveth, the Supremes taketh away. Ontario v. Quon, 2010 WL 2400087 (June 17, 2010).

In Quon, SCOTUS dodged the Fourth Amendment issues presented by new technologies. It issued a narrow holding that in the context of a workplace search, the review of the texts was not an unreasonable Fourth Amendment search. Id. at *14.

What does Quon mean for the future of the recent jewel of the Ninth’s Fourth Amendment law, Comprehensive Drug Testing? Justice Scalia, for one, seems ready to tackle the case: “Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice . . . The-times-they-are-a-changin' is a feeble excuse for disregard of duty.." Id. at *15 (Scalia, J. concurring).

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Thursday, June 17, 2010

U.S. v. Gossi, No. 09-30202 (6-15-10) (Alarcon joined by W. Fletcher and Rawlinson). "Its not fair, I got punished by having to pay more restitution than the others." That is the complaint and appeal of the defendant under the Mandatory Victims Restitution Act. He and codefendants were charged with bank fraud. Defendant plead to one count against one bank as victim. His amount of restitution was higher, based on the loss to that bank, than the others were ordered. Tough, snarled the 9th, you plead to that count. And, moreover, as to the issue of the amount of loss being too high, the loss is determined for this house when the victim (bank) got the property back. The argument by the defendant that the loss should be valued at when the bank should have foreclosed, because they knew the loan was either bad or that the defendant was in trouble, unsurprisingly, found little sympathy with the 9th.

Howard v. Clark, No. 08-55340 (6-15-10) (Gertner, D.J. joined by Kozinski and D. Nelson). The defendant was accused of shooting at two victims. He allegedly murdered one and injured the other. Problem was, the defendant said he was innocent, and was not there. One witness on the stand said that she could not identify him. (The police detective said that she had identified him in a photo line up, which was contested. The prosecution argued gang intimidation). The jury convicted of first degree after lengthy deliberation and saying that they were hung. Oh yes, about the victim that lived? It seems that he would have said that the defendant was NOT the shooter. Unfortunately, the trial lawyer never interviewed him nor called him. IAC? One would think. The state court though said that it was not because the same information came out through the witness. The 9th though reversed and remanded for an evidentiary hearing on prejudice. The 9th emphasized how important the victim-witness would have been, and how powerful that testimony would have been. The interview of him could have lead to other leads and an even more potent cross examination on others. The 9th did hold that it was not IAC for the lawyer not to have called an expert on eye witness identification.

Tuesday, June 15, 2010

U.S. v. Villavicencio-Burruel, No. 09-50204 (6-14-10) (Gould joined by Canby and Ikuta). The 9th affirms a 1326 conviction in an appeal that raised the issue of exhaustion of the removal proceedings. The defendant had not waived his right to an appeal at the removal hearing; indeed, he twice said he was not waiving his appeal. However, neither his lawyer nor he pursued the appeal. This failure, argued the defendant here, meant that IAC occurred, and that exhaustion could be excused. The 9th disagreed, finding instead that he had known of his right, reserved it, and his failure to pursue meant that the administrative remedy was unexhausted, and thus not reviewable. The 9th reversed the district court's finding that the offense of making criminal threats under Calif. Penal Code 422 was not a categorical crime of violence because it was too broad (taking in crimes against property). The 9th held that such threats were violent, against person and property,and so the offense was considered a crime of violence.

U.S. v. O'Donnell, No. 09-50296 (6-14-10) (Fisher with Goodwin and Canby). In campaign finance, it is illegal under 2 U.S.C. 441(f) to give money in another person's name. The 9th interprets this to include a person giving money to another person to give in that person's name, a so-called straw donor.

Monday, June 14, 2010

U.S. v. Bonds, No. 09-10079 (6-11-10) (Schroeder joined by Reinhardt; dissent by Bea). The 9th calls the government out in the appeal of the district court's decision from the Bonds steroids/perjury case. The district court had precluded statements under hearsay that supposedly linked Bonds with steroids use. The statements were from the trainer, who delivered samples to a lab employee, saying that the samples came from Bonds. The 9th agreed with the district court, calling a strike on the government, because the residual exception under Fed. R. Evid. 807 was only for exceptional circumstances, and this was not exceptional. It was routine like a fly out. Moreover, the testimony of the trainer about the source may not have been trustworthy. Strike two on the government was that the statements made by the trainer were not authorized by Bonds, and hence were authorized under Fed. R. Evid. 801(d)(2)(C). Finally, strike three against the government was called because the statements were not made within the scope of employment. The trainer was not an agent, so to speak, by being an independent contractor. Bea, dissenting, balks. He argues the call, stating that the trainer was an agent of Bonds, and the statements were of a party opponent nature. He concludes that the district court made bad calls on legal curves and sliders that were still in the evidentiary strike zone.

U.S. v. Navarro, No. 08-50365 (6-11-10) (Kleinfeld joined by Tallman and Trager, D.J.). This appeal from a conviction for importing and possession with intent of drugs involves a duress issue and a grand jury charge. Both are interesting. The defendant argued at trial that he acted under duress. He was being tested by the cartel, and was threatened. The defendant has the burden with duress. In closing, the government argued that there was no evidence of threat. The objection was that the government was requiring an express threat, when the law allows an implied threat. The 9th agreed that duress, and indeed all threats, can be both express and implied (for the latter, "Do this. I have a bomb."). However, it was unclear whether the government was actually arguing express; moreover, and importantly, the court instructed the jury to follow the instruction, which stated that there needs to be an immediate threat. As for the grand jury, the district court charged the grand jury with an instruction that stated that the government had to provide exculpatory evidence and that the prosecutor was credible and trustworthy. The 9th stressed that the exculpatory charge was wrong. The government may have a DOJ policy to present such evidence, but policies may change; there is no legal requirement (isn't that reassuring?). As for the credible instruction, the 9th was troubled, but it was in the benchbook. The 9th turned to the remedy for such an error. Surveying the few grand jury cases, the 9th holds that when there is a verdict of guilty, errors regarding probable cause disappear. Thus, no harm despite a charging foul. (Reasonable doubt vs. probable cause). However, if presented before a verdict, and ruled upon, the court has to consider, under Bank of Nova Scotia, whether such error had substantially led to an improper indictment. Here, though, the verdict was affirmed.

U.S. v. Gamboa, No. 09-30217 (6-11-10) (Alarcon joined by W. Fletcher and Rawlison). The writ of audita querela, which goes to procedural errors, cannot be used to attack a sentence under Booker. The challenge to a sentence must come under 2255.

Saturday, June 12, 2010

Case o' The Week: Barry Bonds Safe, and Wins in the Ninth - FRE 807 and Agency, US v. Bonds

Ever wonder how much litigation effort, investigation, research, oral argument, and how many opinions have been devoted to issues arising arising from urine in the federal courts of the Ninth Circuit?

Lots. And, turns out, even more this week. United Stat
es v. Bonds, __ F.3d __, No. 09-10079, 2010 WL 2331456 (9th Cir. June 11, 2010), decision available here.

Players: Big win for SF appellate guru Dennis Riordan. Written by Judge Schroeder, joined by Judge Reinhardt, affirming ND Cal DJ Illston. Lengthy dissent by Judge Bea.

Facts: This case is another regrettable chapter in the ND Cal steroid prosecutions. See, e.g., Comprehensive Drug Testing, blog available here.

Barry Bonds testified before the federal grand jury and denied using performance enhancing drugs. Id. at *1. BALCO Lab blood and urine samples, purportedly from Bonds, tested positive for these drugs. Id. Bonds was thus indicted for making false statements to the grand jury. Id. at *3.

Anderson - Bonds’ trainer - could have linked these samples to Bonds, but refused to testify and was jailed for contempt. Id. at *1. The Feds’ “Plan B” was a BALCO employee who would testify that Anderson told him the dirty samples were from Bonds. Id.

Northern District Judge Susan Illston held this testimony to be inadmissible hearsay. Id. Specifically (as relevant to this appeal) the court rejected this testimony under the FRE 807 “residual exception,” and rejected agency theories that these were “authorized statements.” Id. at *4.

The government took interlocutory appeals. Id.

Issue(s): FRE 807: “The government argues that the district court adopted an improperly narrow view of FRE 807 by not taking into account that Anderson’s statements ‘almost’ fell within several other hearsay exceptions. It also asserts the court did not give enough weight to Anderson’s unavailability.” Id. at *5.

Held: FRE 807: “[E]ven though this was a ‘near miss’ [on admissibility under other hearsay exceptions] it was nevertheless a ‘miss’ that may have permitted, but did not alone compel the trial court to admit Anderson’s statements under FRE 807.” Id. at *5.

“[T]his situation [is] unexceptional because it involves statements of an unavailable witness like those FRE 804 excludes, with limited exceptions here not applicable.” Id.

“The district court finding properly focused on the record of untrustworthiness of the out of court declarant, Anderson, as required under the rule.” Id.

Of Note: While the FRE 807 holding leads the majority opinion, the bulk of the decision and the very lengthy dissent wrestle with the admissibility of Anderson’s statements under various agency theories. Id. at *12 (Bea, J., dissenting). Judge Bea questions the notion that when Bonds provided the samples he was just accommodating the wishes of his friend, Anderson. Id. at *30. As the dissenter quips, “Perhaps I spend my time in the wrong social circles, but in my experience ‘accommodating the wishes of a friend’ has never quite included giving friends my blood or urine: a screwdriver or a ride if his car breaks down, sure, but not vials of my bodily fluids.” Id. at *30.

How to Use: FRE 807 – the “residual exception” to the hearsay rule – is by-and-large no friend of the defense. Bonds, therefore, is a useful opinion for affirming the limitations on 807. Two limitations in particular bear emphasis: that the statement itself bears indicators of trustworthiness, and the requirement that the circumstances surrounding the statement were “exceptional.” Id. at *4. It isn’t enough that the government is frustrated with an unavailable witness – unavailable witnesses aren’t exceptional at all, and are in fact explicitly covered in FRE 804. Id. at *5. Bonds will be the lead case on an obscure corner of agency law, but its greater value is in fighting back the government’s attempt to dodge hearsay limitations by relying on the FRE 807 “residual exception.”

For Further Reading: While Bonds gets the press, Comprehensive Drug Testing is the much bigger decision. Where stands the Super En Banc? (Or, as one commentator has observed, “the banc too big to fail”). Time is not our friend: as the Ninth slowly ponders, two circuits have rejected CDT. A SCOTUS-worthy split is not what this great decision needs.

For an interesting discussion on CDT and plain view, see Leonard Deutchman, “To Avoid ‘Plain View,’ Investigators Need Blinders, article available here.

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Friday, June 11, 2010

Mickey v. Ayers, No. 07-99006 (6-7-10) (O'Scannlain with Rawlinson and Bea). The 9th affirms the denial of habeas relief on the guilt claims and reverses the granting of relief on the sentencing issues. The 9th focused on the mitigation, and found that there was no IAC: the issues of abuse and drug usage were sufficiently investigated, and adequately presented through experts. Moreover, even if there was error, there was no prejudice. The jury focused on the nature and manner of the double murders; the raising of some sexual abuse issues would have opened the door to the petitioner's own sexual abuse convictions; and the evidence supposedly uncovered was not game changing.

U.S. v. Laurienti et al, No. 07-50240 (6-8-10) (Graber with Silverman and Scullin, D.J.). Buy low and sell high can make one money in stocks. When the broker, though, is pumping and dumping, with insider trading, breaches of duty, and not disclosing fees, it can lead to convictions, which occurred here. The defendants raised numerous issues as to guilt and sentencing. The 9th finds some errors on guilt, most noticeably an erroneous jury instruction as to trust and excluded expert testimony, but such errors were harmless. The jury instruction was found to be invited error and the expert was not prejudicial. The district court, though, erred on several sentencing issues, including miscalculation of loss, and abuse of trust for some defendants. The case was remanded for resentencing.

U.S. v. Villasenor, No. 08-50541 (6-10-10) (Bybee with T. Nelson and M. Smith). Can one breathe easy after clearing a POE? No. Even though one is referred to secondary; even though a dog sniff fails (and the dog is subsequently "fired"), one still falls under the extended border, and if there are facts that cause a police officer to be suspicious -- say pulling into a gas station, using the rest-room and then driving away -- such facts, combined with a tip from a CI, can trigger reasonable suspicion, and thus a search. Such was the instance here. The ICE agent got information of a smuggling operation, with details. He was on the watch for the car, and other details. The car had come through secondary (see above) when happenstance had the agent pull alongside the car. The agent observed the car, some phone calls, and eventually pulled it over because of a traffic violation (the rosary (!) hanging from the rearview mirror obstructed sight lines). The district court had suppressed the search (37+ lbs of cocaine, based on having emerged from secondary inspection. Not so fast, holds the 9th, in reversing the suppression. The search looks good to us under the extended border doctrine (close to the border) because the agent did not know of the secondary search, the tip was good, there was some actions that caused suspicion (various stops at known drug centers), and because legally the police can still watch and search after clearing a first hurdle at the border.

West v. Ryan, No. 08-99000 (6-10-10) (Callahan with Kleinfeld and Wardlaw). The 9th upholds the denial of an evidentiary hearing on an IAC claim. The 9th finds that, on the record, the trial counsel made objectively reasonable choices in presenting mitigation. No colorable claim of IAC was presented.

Saturday, June 05, 2010

Case o' The Week: Bad Loss from Goodwin - Blinkinsop and Child Porn Sentencing

A tough challenge to an in-guideline sentence produces a disappointing opinion that relies on some of the familiar -- and inaccurate -- assumptions underlying child pornography sentencing. United States v. Blinkinsop, __ F.3d __, No. 09-30120, 2010 WL 2105181 (9th Cir. May 27, 2010), decision available here.

Players: Hard-fought appeal by Montana AFPD David Ness. Decision by Judge Goodwin, joined by Judges Hawkins and N. Smith.

Facts: An investigation traced LimeWire child porn images back to Air Force Sgt. Blinkinsop. Id. at *1. A search of his computer revealed familiar guideline adjustments: over 600 images, pre-pubescent, and S&M. Id. After he pleaded guilty to receipt the district court imposed a low-end, 97 month sentence, and thirteen conditions of supervised release. Id.

Issue(s): “Blinkinsop challenges his imprisonment term as being unreasonable, because the district judge allegedly failed to take into account fully his background, potential for rehabilitation, and low recidivism risk.” Id. at *2.

Held: “The district judge considered the § 3553(a) factors and the totality of the circumstances supporting Blinkinsop’s sentence. Blinkinsop’s arguments omit the recognition that the children depicted in the pornography that he received, viewed, stored and transmitted are the real victims of his crime and that time is required for the sex-offender treatment during incarceration that Blinkinsop needs for his child-pornography addiction. In addition to being procedurally correct, Blinkinsop’s imprisonment term, the lowest under the Sentencing Guidelines, is substantively reasonable, because it is well supported by the record and governing law.” Id. at *5.

Of Note: Ninety-seven months for what is really a possession case, for a man with no priors, a young family, and a record of military service? Id. at *3. Part of the rationale for that whopping sentence is the charitable goal of providing Blinkinsop “sex-offender treatment” while in custody. Id. at *2-*3.

Of course, no federal inmate with any sense would ever voluntarily participate in sex-offender “treatment” while in custody: everything said in these sessions can (and will) be used against them in later possible civil commitment proceedings as “sexually dangerous predators.” See United States v. Comstock, – S. Ct. –, 2010 WL 1946729 (May 17, 2010) (upholding extended civil commitment of “sexually dangerous persons” under the Adam Walsh Child Protection and Safety Act).

Faced with this “treatment” trap, federal inmates got wise quick: their informal boycott quickly and essentially shut many of these BOP “treatment” programs down. There may (arguably) be good reasons for an eight-year sentence in Blinkinsop, but anyone who actually litigates child porn cases knows that the opportunity to receive meaningful “treatment” within the BOP ain’t one of them.

For some excellent advice on how to do one’s time on a child porn case (“Say nothing, sign nothing, invoke the Fifth”), see Adam Walsh Act III: It’s Not the Sentence, It’s the Commitment . . . by Sentencing Resource Counsel Amy Baron-Evans and Sara Noonan, available here.

How to Use: Blinkinsop also challenged conditions of supervised release on appeal. He earned reversal of one of those conditions – a blanket ban on “going to” or “loitering near” places primarily used by children. Id. at *6. Because Blinkinsop had kids in school, that condition was remanded for the district court to consider whether he could be allowed to his children’s school events, with probation officer supervision. Id. at *7-*8. The Court also reversed a condition that the Ninth had previously rejected: a flat ban on internet usage. Id. at *9. Remember those limits on supervised release conditions in future child porn cases.

For Further Reading: With all respect, the Blinkinsop opinion and the sentencing decision below embrace an error in logic that underlies the child porn guideline itself: an assumption that the possession of child pornography is a predictor of child molestation. For a thoughtful, thorough, and dispassionate explanation of that error and the injustice it creates, see Jesse P. Basbaum’s Note, Inequitable Sentencing for Possession of Child Pornography: A Failure to Distinguish Voyeurs from Pederasts, Hastings Law J. Vol. 61, p. 1281, May 2010, available here. (A valuable resource for a child-porn sentencing memorandum).

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