Wednesday, March 30, 2011

U.S. vs. Cotterman, No. 09-10139 (3-30-11)(Tallman with Rawlinson; dissent by B. Fletcher). This is a troubling Fourth Amendment/border search opinion. The defendant was stopped entering the U.S. at a tiny point of entry. He was on a watch list for a prior sex offense. The Customs officer gave a careful look at the vehicle, and spotted two laptops and digital cameras. The agent opened the laptop of the defendant (the other belonged to his wife), but did not see anything wrong. However, many files were password protected. The computer was seized, and taken almost 200 miles away (170 to be exact) to Tucson, to be forensically examined. After two days, the passwords were breached and child porn was discovered. The district court suppressed, finding that such a search away from the border, over time, and in seizing the property, cannot be justified by the border search doctrine. The 9th disagreed. The 9th explains the need for vigilance on the border, and the need for protection. The border need not be exactly on the border. The POE here, Lukeville, was not equipped with computer forensics, and it is impractical to have such labs at every point of entry. The 9th stated that the defendant's property had never been cleared into the country; it was still functionally "at the border." Moreover, taking it some distance in such circumstances need not require reasonable suspicion (both sides agreed that none existed here). The moving of the property, and the time, was a continuation of the border search. the wait was not onerous, and falls within expectations. The government does not have carte blanche; courts will examine such delays on a case-by-case basis. As for defendant's argument that reasonable suspicion was needed, the 9th writes that neither was there a bodily search, nor was any property destroyed (two circumstances that the Supremes indicated required reasonable suspicion. The 9th paused as to whether this fit a third category, a "particularly offensive manner," because of the delay. The time and seizure of property, for two days, was not, in the 9th's eyes, highly offensive. In sum, the 9th holds that relocation of property for a continued border search does not require reasonable suspicion. Reasonableness of the search will be on a case-by-case basis. Dissenting, B. Fletcher laments the demise of the Fourth Amendment. To the dissent, the sticking point is not so much the relocation of the property but the seizure of it, and depriving of the person of his property, for no reason whatsoever. There must, the dissent writes, be some particularized suspicion of a crime when there is no indication in the property, or on the computer, that something is amiss. To permit a search of a computer is to invade privacy, and there was no reason to here except for the government's own general concerns.

Saturday, March 26, 2011

Case o' The Week: Living is Lying - Alvarez and the First Amendment

“If you tell a girl you love her in the evening and then tell your roommate she’s a bimbo the next morning, and the two compare notes, someone’s going to call you a liar.” United States v. Alvarez, __ F.3d __, 2001 WL 941617 (9th Cir. Mar. 21, 2011) (Ord. denying reh’g en banc)(Kozinski, C.J., concurring in denial of reh'g en banc).

This, and other various and sundry ruminations on the lies that we all tell, are featured in the intriguing (and welcome) order denying rehearing en banc for an important First Amendment decision, in the criminal context. Decision available here.

Players: Hard-fought case by CD Cal AFPDs Brianna Fuller and Jonathan Libby. Judge M. Smith, concurring in denial of rehearing en banc; concurring decision by C.J. Kozinski. Dissenting opinions from the denial of rehearing en banc by Judges O’Scannlain and Gould.

Facts: Alvarez, recently elected to a regional water district’s board of directors, bragged at a public meeting that he was a retired Marine who had been wounded and had received the Congressional Medal of Honor. Id. at *12 (O’Scannlain, J., dissenting from ord. denying reh’g en banc) (hereinafter, “O’Scannlain, J.”)

This was actually a “series of bizarre lies.” Id. (quotation and citation omitted).

Alvarez was prosecuted under the “Stolen Valor Act,” which makes it a federal crime to lie about military commendations. Id. After Alvarez entered a conditional guilty plea, a three-judge panel applied First Amendment strict scrutiny and held the Act to be an unconstitutional restriction – both as applied, and on its face. Id. Judge Bybee dissented, and a call for an en banc vote was made. Id. at *1 (Ord.)

Issue(s): “Is the speech forbidden by the Act protected by the First Amendment, or does it fall into one of the well-defined and narrowly limited classes of speech that is unprotected by the First Amendment?” Id. at *1 (Smith, M., J., concurring from ord. denying reh’g en banc) (hereinafter, “Smith., M., J.”) (quotations and citation omitted). Or, put differently, does the First Amendment require that statutes that criminalize false speech undergo strict scrutiny? Id. at *13 (paraphrasing O’Scannlain, J.).

Held: “In each of [the Supreme Court opinions relied upon by the Dissenters], the Court has made clear that false speech is not subject to a blanket exemption from constitutional protection.” Id. at *2 (Smith, M., J.). “The petition for panel rehearing and rehearing en banc is DENIED.” Id. at *1 (Ord.).

Of Note: First Amendment wonks are having a field day with Alvarez, see, e.g., blog here, but the most entertaining part of the case is Chief Judge Kozinski’s concurring opinion. Id. at *7 (Kozinski, C.J., concurring in denial of reh’g en banc) (hereafter, “Kozinski, C.J.”).

As the Chief correctly observes, “Saints may always tell the truth, but for mortals living means lying.” Id. at *8. He then rifts on a long catalog of our most-frequent fibs, and why we tell them. Id. at *8 (describing, among others, the lie “You're the greatest living jurist” offered to obtain a clerkship). Beneath the humor, the CJ makes a convincing point – and to tell the truth, the dissenting opinions seem a bit anemic after this tribute to free speech.

How to Use: In its most-narrow reading, Alvarez is a one-off case on a infrequently-charged statute. Judge O’Scannlain, however, gives us a long list of common federal offenses where false statements have been criminalized – and haven’t (yet) fallen to a First Amendment challenge. Id. at *17 (O’Scannlain, J.).

Reading that handy list makes one wonder if the Ninth’s Alvarez First Amendment analysis may have some legs for a constitutional challenges to other false-statement crimes?

For Further Reading: In the 2009 Hinkson case, the Ninth affirmed a conviction after a key government witness lied on the stand about receiving the Purple Heart – yet when that remarkable lie was discovered, no new trial was permitted! See blog entry here on Hinkson denial of rehearing en banc. Broadly speaking, a majority of Ninth judges assured us in the Hinkson denial of rehearing that the snitch’s Purple Heart lie wasn’t a big enough deal to warrant reversing the conviction. See order denying reh'g en banc here. That most-regrettable Hinkson decision has been a burr under our saddle ever since.

One of those same judges, in Alvarez, now argues that lying about a military medal is false speech that doesn’t deserve First Amendment protection and that should give rise to a federal criminal conviction. See Alvarez, at *13.

Military medals are a hot topic, in the last couple of years – it is interesting (and troubling) to read the opinions surrounding the en banc orders in Hinkson and Alvarez side-by-side.

Image of the Congressional Medal of Honor from Image of Pinocchio's nose from

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


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Wednesday, March 23, 2011

U.S. v. Buenrosta, No. 08-16185 (3-23-11) (Per curiam with Graber, Kleinfeld, and Molloy, D.J. Mont.)
The petitioner is doing life for drug trafficking with two prior drug convictions. So, why didn't his lawyer allegedly present him with the plea deal for "only" 14 years? Was it true that his lawyer did not know petitioner was facing life? Sounds like IAC. However, we will never know the answers because the petitioner presented the claim in a second successive petition. The petitioner had been convicted at trial, appealed, and then filed a 2255 post-conviction IAC challenge. After that was denied, petitioner filed a Rule 60(b) claim stating that he just found out that his lawyer had withheld a plea from him, and this was new evidence. This was denied too. The 9th now affirms the denial. The Rule 60(b) motion is really designed for fraud on the court, or truly exceptional reasons about new evidence. This was not the case here, where in his first petition, petitioner had raised IAC, and the court had found deficiency due to counsel's errors, but the ineffectiveness was not prejudicial. The motion now does not allege some fraud or deficiency in the judicial machinery. Thus, the motion must be examined as a 2255 successive claim. Petitioner is barred from filing this successor claim because he does not meet 2255(h)'s requirements. Petitioner either had to show that the newly discovered evidence, taken into consideration with all the evidence, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found him guilty; or there was a new constitutional rule made retroactive to collateral review by the Supreme Court. That was not the situation here. However, petitioner argues that his second IAC claim, although ripe at the time, should be allowed because the evidence was not discovered until afterwards. The 9th declines to do so because AEDPA foreclosed such review with its narrow exceptions. Even where "compelling new evidence of a constitutional violation is discovered," unless it meets the innocent standard or new constitutional rule, it is barred.

Saturday, March 19, 2011

Case o' The Week: Major Analysis for a "Minor" Issue - Doss, and Nijhawan in Criminal Sentencings

A slow week in the Ninth (for non-capital cases, at least), and an order amending the opinion, gives us an excuse to go back for a second pass at the interesting decision and sentencing issues in United States v. Doss, _ F.3d __, 2011 WL 871391 (Mar. 15, 2011) (amend.), decision available here, see earlier blog on privilege issues here.

Players: Extraordinarily hard-fought case by CD Cal AFPD Davina Chen (check out the number of submissions, revisions, vacated submissions, and re-considerations at the first page of the opinion).

Facts: Doss was convicted after trial and given a life sentence for sex offenses relating to children. Id. at *1. (For a more facts, see blog here (discussing case in context of privilege issues).

Section 3559(e)(1) of Title 18 creates a mandatory life sentence for these offenses, if the defendant has a “prior sex conviction in which the minor was a victim.” Id. at *13. Doss had a prior Nevada conviction for child pandering. Id. This state prior, the district court conceded, did not categorically qualify for the federal enhancement because Nevada defines “minor” as a person under 18, while the feds define “minor” as a person under 17. Id.

Turning to the Taylor modified categorical approach, the district court examined the charging documents, plea agreement, and colloquy from the state prior, and held that Doss had admitted to pandering a child who was 16. Id. The prior, held the court, counted for the federal enhancement: Doss was sentenced to life in prison. Id.

Issue(s): Under Apprendi, must the fact of the victim’s age – a fact that increases Doss’s statutory maximum sentence - be proved to a factfinder beyond a reasonable doubt? Id. at *14 (paraphrasing analysis).

Held: “Because we conclude that ‘in which a minor was the victim’ is not an element of ‘prior sex conviction,’a factual determination that a minor was involved necessarily falls outside the ‘fact of a prior conviction” exception of Apprendi . . . . Thus, if this fact increases the penalty Doss would face above the statutory maximum, it must be proven to a factfinder beyond a reasonable doubt. Id.; see also Nijhawan.” Id. at *14 (citations omitted). “Under these circumstances, especially considering the significant change in law since the sentencing, we believe the fairest approach would be to remand. . . for a new sentencing proceeding to determine, applying a beyond-a-reasonable-doubt standard, whether Doss’s prior sex conviction indeed involved a minor under the federal definition.” Id. at *15.

Of Note: Doss is complicated, even for those seeped in the Taylor sentencing goo. Here’s a gross oversimplification:

1. Nevada criminalizes pandering a minor who was 17 – for feds, a “minor” must be 16.

2. In the 2009 Nijhawan immigration case, the Supreme Court case created a new category called, “circumstance-specific” crimes for the “prior conviction” analysis, where the lower court is to look at the “facts and circumstances underlying an offender’s conviction.” Id. at *13.

3. In Doss, Judge Hawkins (author of the opinion, image above-left) dubs the federal enhancement statute one of these “circumstance-specific” cases, which would permit looking at the ‘specific circumstances surrounding an offender’s commission of that crime on a specific occasion.” Id. at *14.

4. But, because Doss is a criminal case (not an immigration case like Nijhawan) there are constitutional concerns. Apprendi thus requires proof beyond a reasonable doubt of the key fact: the true age of the minor. Id. at*14.

Simple, right?

How to Use: Nijhawan made us twitchy – it seemed a step backwards from the positive trends of the Taylor / Shepard approach, and we worried Nijhawan would bleed out of the immigration context and into criminal sentencing.

Doss answers that concern: Nijhawan can’t be (fully) imported into a criminal sentencing, because Apprendi gives a criminal defendant constitutional protections not found in immigration court.

Worry, though, about the actual result here: the remedy is a federal sentencing evidentiary hearing involving any evidence that “may be introduced under the Federal Rules.” Id. at *15 n.11. So, theoretically, the (then-allegedly) 16-year old Nevada girl whom Doss pandered could now come and testify at a federal sentencing hearing, birth certificate in hand. From Mr. Doss’s perspective, battle won, war prospects looking grim.

For Further Reading: So where is the en banc Aguila Montes de Oca decision, already? See generally, blog here. Next Wednesday, March 23, 2011, it’ll have been a full year since oral argument. See argument video here.

Judge Berzon was a very informed and engaged judge at that en banc argument. Interestingly, she is also on this Doss panel, which seems to view the Ninth’s great Navarro-Lopez rule (the central Aguila Montes de Oca issue) favorably. Doss, 2011 WL 871391, *13.

Tea leaves?

Image of the Honorable Michael Daly Hawkins from

Image of tea leaves from

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


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Friday, March 18, 2011

Cook vs. Brewer, No. 11-5303 (3-16-11) (O'Callahan with O'Scannlain and Graber).
[Ed. note: This case arises from the Arizona FPD office].
Petitioner is set to be executed on April 9, 2011. He filed a 1983 action challenging the use of foreign manufactured, FDA-unauthorized sodium thiopental, one of the lethal drugs used for execution. The 9th affirmed the district court's dismissal of petitioner's 1983 action for failure to state a claim pursuant to Fed. R. Civ. Pro. 12(b)(6) in alleging that Arizona's use of the drug, imported from a foreign source, was obtained in violation of federal law, could be contaminated, unsafe, not even be the drug, and would inflict cruel and unusual punishment. The 9th concluded that the claims were made with insufficient bases; that they were speculative and conclusory, and failed to state a claim under Baze. The decision came out the day after the DEA raided the State of Georgia to seize sodium thiopental for illegal importation, and the day that Texas declared it would no longer use its store of sodium thiopental.

U.S. vs. Harrell, No. 10-30176 (3-17-11) (Tallman with Fisher and Gould).
What are parentheticals good for in statutes? Not much, according to the 9th. In this case, involving aggravated identity theft, the defendant used a false SSN number to sneak into a prison with contraband. She argued that aggravated identity theft, 18 U.S.C. 1028A, and specifically subsection (c), only refers to offenses "relating to fraud" of programs. The 9th does not go with this reading, because the parenthetical are descriptive, describing rather than limiting. If it was meant to be limiting, Congress knew how to draft with language that was clear.

U.S. vs. Guo, No. 09-50394 (3-17-11) (Graber with Pregerson and Ripple, Sr. 7th Cir.).
The defendant was convicted of exporting 10 thermal imaging cameras with an exporting license. The defendant shipped the cameras to China, which was on a "no ship" list without a license. The defendant argued that the statute, 50 U.S.C. 1705, was vague. The 9th said it was confusing, and complex, but not vague. The statute referenced regulatory schemes, and executive orders. But complexity does not equate to constitutional vagueness. Moreover, reasons the 9th, the statute requires specific intent, and so the defendant had to know that he was committing an illegal act. That was pretty clear here with subterfuge and straw purchasers.

Thursday, March 17, 2011

Ortiz-Hernandez Flashback

Back in 2005, the Ninth Circuit reversed the grant of a suppression motion in an illegal reentry case in Ortiz-Hernandez. The district court had found that the stop was racially based and lacked probable cause (276 F.Supp. 2d 1119). Nevertheless, the appellate court reversed in a split decision. The court denied rehearing en banc, with nine judges dissenting, as set out here. The dissenters pointed out that the refusal to apply the exclusionary rule to identity information was inconsistent with Supreme Court authority suppressing fingerprint evidence and conflated the case law barring suppression of the body -- illegal seizure of the person requires suppression of the products of the search but does not immunize the individual from appearance in court. Turns out that this same issue will be argued in the Supreme Court next week in a non-1326 context, as reported here by SCOTUS blog. We'll need to watch for the Supreme Court's decision in Tolentino to see if Ortiz-Hernandez remains good law.

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

Monday, March 14, 2011

U.S. vs. Fernandes, No. 09-30135 (3-14-11)(Per curiam with Thomas, Graber, and Tallman). Must a court order a defendant convicted of abusive sexual contact under 18 U.S.C. 2244(b) to register as a sex offender? The defendant here worked as a security officer at a national park when he fondled and groped an intoxicated female employee in her room without her permission. The court sentenced the defendant to probation, but refused to require registration. The court explained that there was no need for registration as the defendant had no priors, and would be unlikely to repeat such an offense. It does not matter, explains the 9th, which reverses and amends with instructions to put registration as a condition. Under the statutes, the defendant was convicted of a sexual offense, he is defined as a sexual offender, and so he must register. There is no discretion afforded. The defendant's arguments about discretion under Booker and parsimony do not trump a congressional mandate. The constitutional challenge is also denied.

U.S. vs. W.P.L. (juvenile), No. 10-30202 (3-14-11) (Per curiam with Thomas, Graber, and Tallman). The juvenile facially challenges the district court's condition of SR that he register as a sex offender "if required by law." The 9th holds that the issue isn't ripe yet. If the juvenile is required to register, and he believes he is not required to, or is not subject to such registration, then he can bring an "as applied" challenge.
U.S. vs. Bonilla, No. 09-10307 (3-11-11) (Reinhardt with Berzon and Pollak, Sr. D.J., E.D. Pa).
In Padilla, the Supremes made clear that the defendant must be advised of the immigration consequences to a guilty plea. Here, the defendant, a legal resident who had been in the country for 30 years, faced a count of possessing an unregistered firearm and being a felon in possession. He had mental issues, and so his wife (a U.S. citizen) frequently spoke for him. He asked his lawyer what the immigration consequences were, and she said probably deportation. After he pled straight up, he learned that he was facing certain deportation for aggravated felonies. He then moved to withdraw his guilty plea. the district court denied the plea, stating that he knew there would be some consequences. On appeal, the 9th reversed and remanded. The 9th stressed that the standard for moving to withdraw was a "fair and just" reason, which was to be liberally construed. Here, the defendant and his wife inquired about the consequences before the plea, and were not told of the dire consequences; it was only afterwards that the full extent of the consequences of the guilty plea came through. Moreover, the defendant plead straight up, and so did not receive some great benefit in accepting a plea. The fact that court felt that the defendant would have pled guilty anyway does not cut it. Padilla is clear that the real consequences of the plea must be disclosed. Although the lawyer failed to get him the information, believing he was a citizen, the lawyer did come through afterwards and admitted a mistake.

U.S. vs. Kohring, No. 08-30170 (3-11-11) (Thomas with Tashima, partial concurrence and partial dissent by B. Fletcher).
The defendant here was a former state representative charged and convicted of public corruption as part of the undercover operation that also involved Senator Ted Stevens. Stevens had his charges dismissed because of the government's withholding of Brady and Giglio evidence. While this case was on appeal, and the Stevens mess came out, the government disclosed information, and suggested that the case be remanded for the Brady. The 9th remanded for the district court to see if there was a Brady violation, and whether it was prejudicial. The district court found, in fact, that Brady was withheld, but considered it immaterial because it did not go to the actual bribery. On appeal, the 9th reversed and remanded for a new trial. The 9th noted that the Brady information went to the character of the chief cooperating witness (Allen), his motives, bias, ability to remember, truthfulness, and there was also evidence that exculpated the defendant. The 9th wrote a treatise on how this evidence could (and should) be used. B. Fletcher concurred, and only dissented because she thought the withholding was flagrant and intentional, and she would dismiss with prejudice.
Houston vs. Schomig, No. 10-15048 (3-8-11) (Trott with O'Scannlain and Tena Campbell, Sr. D.J., D. Utah).
Petitioner's lawyer, in an attempt to commit murder trial, was a member of the same public defender's office that had represented a key witness in this case previously in another case. The lawyer himself had nothing to do with the previous representation. The district court, on remand from the 9th, considered whether there was an adverse impact and found that there was not. The 9th affirmed. The lawyer stated that he had not altered his representation of the petitioner; that he impeached with his prior; that the lawyer presented a reason for the witness to have wanted to get even with petitioner, that failure to impeach on parole status was due to a trial court ruling or oversight, and that a failed polygraph test was also precluded by the court. The witness moreover waived attorney-client privilege. These factors support the district court's findings, which the 9th upholds. Still, it is unsettling that the loyalty owed to a former client is brushed aside even with these facts.
U.S. v. Eriksen, No. 10-30056 (3-9-11) (M. Smith with Graber and Benitez, DJ., S.D. Ca). The defendants were convicted of stealing from Peter to pay Paul, with Peter being the company's ERISA 401(k) employee contributions, and Paul being the company. It was with a goal to save a sinking business (maritime electronics) and the defense was intent. The defendants were convicted of two counts of 18 U.S.C. 664, embezzlement of an employee benefit fund, and one count of false statement in an ERISA plan document. On appeal, the defendant argued that the pension plan was not an ERISA plan because it was never amended to become an ERISA plan. The 9th explains that the government proved that the plan was, in fact, amended to be ERISA and to require employer matching funds. The defendants' employers also argued intent, that in fact they intended to repay. The 9th points out that they never did and so violated all sorts of fiduciary duties. Third, the defendants argued that the failure of the defendants to make contributions was a civil matter, tied up with the ERISA plan and the timing requirements. The 9th quickly cuts to the matter, stating that the actions of the defendant amounted to theft and embezzlement. The defendant never made payments once the business started sinking. The 9th reviews the cases where civil regulations were erroneously bootstrapped to criminal charges; and the 9th easily distinguishes those cases from this one. The false statement was telling the employees that they had employer contributions when they did not. All in all, the defendants criminally violated their fiduciary duties.

Saturday, March 12, 2011

Case o' The Week: A Brady Bombshell -- Kohring and Discovery Nondisclosure

Could there possibly be anything better than a righteous and persuasive Brady / Giglio discovery decision penned by the Honorable Judge Sidney Thomas (right)?

Only an indignant and persuasive discovery dissent, penned by the Honorable Betty Fletcher (below left). United States v. Kohring,__ F.3d __, Slip. Op. at 3433 (9th Cir. Mar. 11, 2011), decision available here.

Players: Big win for D. Wa. AFPD Michael Filipovic. Decision by Judge Sidney Thomas, joined by Judge Tashima, concurrence and dissent by Judge Betty Fletcher.

Facts: Kohring, an Alaskan state legislator, had a series of private taped meetings with oil company executives where money was discussed or exchanged. Slip Op. at 3439. He was charged with several public corruption offenses in federal court. Id. The government’s lead witness was an oil executive named Allen. Id. Some of Allen’s transactions with Kohring culminated during a period of key oil legislation. Kohring was convicted of most of the counts. Id. at 3442.

While the appeal was pending, it was disclosed that Allen was also a witness in the infamous Senator Stevens’ case – and damning information about Allen had not been disclosed in either of the cases. Id. at 3442. Kohring’s case was remanded by the Ninth for a hearing on this evidence: the district court held that while the thousands of pages of nondisclosed evidence was favorable to the defense, Kohring hadn’t been prejudiced by its non-disclosure. Id. at 3444.

Issue(s): “The district court determined the prosecution had failed to disclose favorable evidence to Kohring, but it concluded the government did not violate Brady/Giglio because the newly-disclosed information is not material.” Id. at 3439.

Held: “We agree with the district court that the prosecution suppressed favorable material, but we respectfully disagree with its conclusion as to materiality. We conclude that the newly-disclosed information, when viewed collectively, is material and that the prosecution violated Brady/Giglio. We vacate Kohring’s conviction and remand to the district court for a new trial.” Id.

Of Note: Kohring joins United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010) as a discovery must-read for the defense. It is also a fascinating tale: Allen, the government’s snitch, had allegedly sexually abused minors, then tried to obstruct their testimony, was on meds that made his memory of the events fuzzy, had said to the feds that there was no quid pro quo for the payments to Kohring, varied wildly as to the amounts of payments that had been made, and voluntarily ate a grand’s worth of his FBI handler’s golf fees (which was never reimbursed) – and all of this info was not disclosed before trial!?!

How to Use: There’s too much of value in Kohring to fully report here: highlights follow. Judge Thomas explains how FRE 403 does not defeat the Brady / Giglio claim, in a rare appellate rebuke analyzing that broadly-discretionary rule. Id. at 3449. He explains that impeachment evidence isn’t “cumulative” if it shows different motives to lie, and if it reveals the magnitude of the snitch’s motives. Id. at 3450.

Of greatest importance, he rejects an AUSA's “work product” protection as insulation for
Brady / Giglio facts within the work product: those facts must nonetheless be disclosed. Id. at 3456. That language alone is worth a quick discovery letter to your favorite AUSA, demanding a review of e-mails for all Brady / Giglio facts.

The only dark cloud is Judge Thomas’s refusal to dismiss the indictment, for government conduct that was at least “reckless” (and, we suspect, outrageous). Judge Betty Fletcher correctly takes him to task in her dissent, god bless her, and earns an apologetic rejoinder in the majority’s final footnote from her admiring colleagues. Id. at 3455 & n.5

For Further Reading:The prescient Judge Trott warned ‘em way back in ‘96 - time to revisit his classic article. See Hon. Stephen Trott, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 Hastings L.J. 1381 (1996).

Image of the Honorable Sidney Thomas from .

Image of the Honorable Judge Betty Fletcher from .

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


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Monday, March 07, 2011

U.S. vs. Williams, No. 10-30084 (3-7-11) (O'Scannlain with Beezer and Paez). Convicted of receipt of child pornography, and sentenced to 15 years, the defendant appealed his life term of supervised release, arguing that it constituted "cruel and unusual punishment." The 9th had little trouble, under these facts, of affirming the SR term. It explained that there were two ways to challenge a sentence under the Eighth Amendment. One way was to look at the grossly disproportionate sentence for this case under these facts; the second is to look at a class of cases and find that the punishment of that class is disproportionate. Here, dealing with the defendant, who had a prior conviction of sexual assault, and who admitted to certain troubling fantasies, the 9th held that the term as applied to this case was not violative of the Eighth Amendment, nor was the term as applied to sex offenders disproportionate. It was a tough challenge to make.

Saturday, March 05, 2011

Case o' The Week: "Opened Door" Closes Door on Defense Challenge - Sepulveda-Barraza and Drug Courier Experts

What happens when the defense "opens the door" to the relevance of drug courier testimony?

A federal drug courier "expert" strolls on through . . . United States v. Sepulveda-Barraza, 2011 WL 723108 (9th Cir. Mar. 3, 2011), decision available here.

Players: Hard-fought appeal by D. Az. AFPD Dan Kaplan. Decision by Judge Ikuta.

Facts: Sepulveda-Barraza was stopped at the border and referred to secondary inspection. Id. at *1. Eleven packages of cocaine were found in his car. Id. Sepulveda-Barraza hung his first jury trial; at the retrial the defense noticed its intent to call a retired FBI Special Agent as an expert. Id. This expert would testify that drug trafficking organizations sometimes use unknowing couriers (“blind mules) to smuggle drugs across the border.

The government then noticed its intent to call an ICE expert, to testify about the control of drug couriers by drug trafficking organizations, the street value of the cocaine found, and the “implausibility that drug traffickers would entrust valuable drug loads to an unknowing individual.” Id.

The defense moved in limine to exclude the testimony of the government expert; that motion was denied. Id. Sepulveda-Barraza was convicted at trial and received a sentence of 120 months. Id. at *2.

Issue(s): “According to Sepulveda-Barraza, United States v. Vallejo established the per se rule that the government may not introduce expert testimony describing the ‘general structure and operations of drug trafficking organizations’ because the introduction of such testimony inevitably creates the implication that the defendant ‘had knowledge of how the entire organization operated, and thus knew he was carrying the drugs.’ 237 F.3d 1008, 1012, 1017 (9th Cir. 2001), amended by 246 F.3d 1150 (9th Cir. 2001). Moreover, Sepulveda-Barraza urges us to extend the rationale of Vallejo, and hold that an expert’s testimony that a drug trafficking operation is unlikely to use an unknowing drug courier is always inadmissible in a non-complex case such as this one.” Id. at *3.

Held: “We disagree. First, neither Vallejo nor its progeny supports the establishment of a per se rule that expert testimony regarding the operation and structure of drug trafficking organizations or the modus operandi of couriers involved in drug trafficking organizations is inadmissible.” Id.

“[ ] Sepulveda-Barraza makes the further argument that we should extend our existing case law to create a rule that testimony about the use of unknowing couriers is per se inadmissible in a non-complex drug trafficking case. We decline this invitation. Testimony regarding the use of unknowing couriers by drug trafficking organizations is not different in kind than testimony about drug trafficking operations generally. Accordingly, for the reasons explained above, such evidence is likewise admissible under the broad, case-by-case standard of Rule 403.” Id. at *4.

“In sum, expert testimony on drug trafficking organizations and the behavior of unknowing couriers is admissible when relevant, probative of a defendant's knowledge, and not unfairly prejudicial under the standard set forth in the Federal Rules of Evidence.” Id.

Of Note: The defendant in this case didn’t object to the testimony of the government’s expert at trial. On appeal, does the Ninth review the defense challenge under the abuse-of-discretion standard, or under the (nearly impossible) “plain error” standard triggered when there is a failure to object? The defense argued the former, because Sepulveda-Barraza had litigated this motion in limine and had no obligation to renew his motion at trial.

“We agree,” writes Judge Ikuta. Id. at *2. “Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Id.

How to Use: When you read that the defense called an expert on retrial, the immediate fear is that dreaded “open the door” rationale. Sure enough, Judge Ikuta explains that “Sepulveda-Barraza opened the door to [the government expert’s] testimony by noticing his intent to call [a defense expert] to testify that ‘drug cartels’ sometimes use ‘blind mule’ couriers to smuggle drugs across the border and then eliciting such testimony at trial.” Id. at *5.

Note this key fact – Sepulveda-Barraza may not control when government’s expert isn’t simply rebutting a defense expert.

For Further Reading: That “open door” concept (otherwise known as “conditional relevance”) is tricky and dangerous stuff, found nowhere in the actual rules of evidence. For a discussion of open doors in the context of FRE 608 – and Chief Judge Kozinski’s critique of the concept – see the May 2009 blog on United States v. Osazuwa, available here.

"Open Door" image from

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


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Thursday, March 03, 2011

U.S. vs. Sepulveda-Barraza, No. 09-10362 (3-3-11) (Ikuta with Gould and Mahan).
[Ed. note: this case is from our office].
The defense in this border drug case was that the defendant was a "blind mule" who did not know drugs were in the car. He had been charged with importation of cocaine and possession with intent to distribute, but not conspiracy. The government, however, brought in an expert in drug traffickers to explain the implausibility of the defense theory, especially since drug traffickers want to know where the drugs are and how to retrieve them, especially for the amount at issue here (valued over $150,000). The defense had filed an in limine motion to preclude the government's expert, which was denied. The 9th first found that the defense had preserved the issue through the in limine motion. Turning to the merits, the 9th rejected defense arguments that U.S. vs. Vallejo had set a per se rule that expert testimony was precluded absent a conspiracy charge. 237 F.3d 1008 (9th Cir. 2001), amended by 246 F.3d 1150 (9th Cir. 2001). The 9th stated that this was an overbroad reading. Vallejo, explains the panel, held that the district court abuses its discretion if the evidence has no relevance. In Vallejo, the testimony by a trafficking expert had no relevance to the importation of the 40 kgs of marijuana hidden in a car. There is no per se rule about admissibility. In fact, the evidence is admissible where relevant, probative of defendant's knowledge, and not unfairly prejudicial. The court did not abuse its discretion in admitting it here, given the defense, and the issue of knowledge.

Reeb v. Thomas, No. 09-35815 (3-3-11) (Ezra, US D.J., D. Hi, with O'Scannlain and Tallman).
The 9th holds that a district court does not have jurisdiction to review BOP's residential drug abuse program for individual determinations. The district court, under the APA, can review agency's actions but withdraws jurisdiction where a statute precludes jurisdiction or the agency action is committed to agency discretion by law. Here, the APA does not apply to BOP's individual decisions. The court can review allegations that BOP action is contrary to federal law, violates the Constitution, or exceeds statutory authority; it cannot decide the individual decision by BOP to remove the petitioner from the program for being disruptive.