Sunday, July 31, 2011

Case o' The Week: Real Loss for Fake Stash House Defense - Spentz and Entrapment

Believe in a fake six foot rabbit and you get sent to the psych ward.

Believe in a fake stash house and you get years in federal prison. United States v. Spentz, 2011 WL 3195708 (9th Cir. July 28, 2011), decision available here.

Decision by Judge Clifton, joined by Judges Wallace and Fernandez.

Facts: ATF set up a functioning tattoo shop to catch “violent criminals” by offering opportunities to commit crime. Id. at *1. Spentz and others came into the shop and met an undercover ATF agent, pretending to be a disgruntled drug courier. Id. The agent proposed that he, Spentz, and other men rob a stash house in which was stored $2.5 million worth of cocaine. Id. The agent warned the men the house was typically protected by two guards, one of them armed. Id.

No such stash house actually existed.

The agent, Spentz, and other defendants rendezvoused for the (fake) robbery, were promptly arrested, and then tried for a bevy of crimes including 18 USC § 1951(a), conspiracy to interfere with commerce through robbery, 21 USC § 846, conspiracy to possess with intent to distribute cocaine [which, by the way, didn’t exist], and § 924(c), use of a gun in the furtherance of another felony. Id.

The district court rejected the defense request for an entrapment instruction, holding there was insufficient evidence to merit the instruction and the instruction was inconsistent with the alternative defense strategy of claiming innocence. Id. at *2. The defendants were convicted. Id.

Issue(s): “This appeal presents the issue as to when, in a criminal trial, a district court must give the jury instructions requested by a defendant regarding an entrapment defense . . . . Defendants argue that the district court erred in refusing to provide an entrapment instruction to the jury.” Id. at *1.

Held: “There was . . . insufficient evidence presented at trial to support a finding by the jury that defendants were induced by the government to commit the crimes, one of the two necessary elements of an entrapment defense. As a result, we conclude that the district court did not err by refusing to give the entrapment instruction, and we affirm.” Id. at *1.

Of Note: To earn the entrapment defense, there must be evidence of inducement of inducement “plus something else – typically excessive pressure by the government upon the defendant or the government’s taking advantage of an alternative, non-criminal type of motive.” Id. at *3. In this case, the defense argued that the motive offered by the undercover agent was so overwhelming – $2.5 million at stake – and the risk so minor, that this incentive met the “something else” prong of inducement. Id. Judge Clifton is unpersuaded: “When the motivation presented by the government is the typical benefit from engaging in the proposed criminal act, there is no reason to be concerned that an innocent person is being entrapped.” Id. Spentz is a blow to one of the few hoped-for defenses in these hated fake stash-house cases, and foreshadows a grim future of fake federal crimes with huge promised fake payoffs used to lure our very real clients into an easy prosecution.

How to Use: A silver lining, if there is one, is that the Court in Spentz rejects one basis relied upon by the district court in refusing to give the entrapment instruction requested by the defense. “[A] criminal defendant may assert innocence and, in the alternative, entrapment.” Id. at *3 & n.2. Moreover, a defendant can assert an entrapment defense based solely on evidence arising from the government’s case. Id.

How, exactly, the defense can credibly run alternative theories of entrapment and straight innocence isn’t exactly clear from the opinion – but worth noting that it is at least theoretically possible.

For Further Reading: Spentz is not the only defendant snared in the Las Vegas fake tattoo parlor scheme run by ATF. The Nevada USAO boasts of a number of other convictions arising out ATF’s “Hustler’s” tattoo shop, with sentences up to fifteen years for real prosecutions of attempted robberies of fake stash houses. See press release here.

A number of federal districts (including the ND Cal) are plagued with these bureaucratically-created criminal conspiracies spawned by ATF – and while the agency has been busy inventing fake stash houses, it has simultaneously allowed a known criminal network funnel thousand of assault weapons to Mexican drug cartels (including weapons found where a Border agent was killed in 2010). See NYT article here.

Image of Harvey and James Stewart, and movie poster, from

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


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Friday, July 29, 2011

U.S. v. Spentz, No. 10-10134 (7-28-11)(Clifton with Fernandez and Wallace).

The defendant was convicted of conspiracy to commit robbery, drug crimes, and firearm offenses stemming from an undercover operation. The defendant argues that he was entitled to an entrapment instruction. After all, it was the government's undercover agent's plan to rob a supposed stash house. The problem, the 9th identifies, in affirming the convictions, comes from the lack of any evidence of inducement. Sure it was the government's idea, but what induced the defendant to go ahead. The claim that the money from robbery was the inducment fails, because it was the object of the crime.

Greenway v. Schriro, No. 07-99021 (7-28-11)(Schroeder with Rawlinson and Bea).

The 9th remands claims for IAC at trial and on direct appeal for district court consideration. These claims were not procedurally barred because they were presented in the first round of post-conviction (on remand). The state trial court erred in so barring them.

Congratulations to AFPD Therese Day of the FPD Arizona (Phoenix)

Wednesday, July 27, 2011

Lee: The Second Joins The Fourth In Rejecting The Ninth On The Third Level For Acceptance Of Responsibility

More good news on the third level for acceptance of responsibility! Three weeks ago, the Fourth Circuit in Divens broke off from the other circuits, rejecting the government’s claim that its discretion to move for the third acceptance of responsibility level is commensurate with substantial assistance discretion and can be based on the defendant's exercise of appellate and pretrial rights. As blogged here, the Divens opinion systematically debunked the reasoning of the other circuits, demonstrating that the government’s departure power differs significantly from the Chapter 3 adjustment, which only pertains to preservation of trial resources.

Now the Second Circuit goes one better. In Lee, the court joins Divens in finding that both the acceptance of responsibility guideline and its commentary only authorize withholding of the third level based on preservation of trial resources. The Second Circuit explicitly adopted the “instructive” reasoning of Divens. But here’s where the Second Circuit takes the next big step: the court explicitly recognizes the constitutional issues at play where the government imposes a liberty tax for exercise of rights (as the NACDL argued in this Ninth Circuit brief). Here’s what the court says:

“[A] defendant – even one who pleads guilty – has a due process right to reasonably contest errors in the PSR that affect his sentence. . . . A defendant should not be punished for doing so. If there is a good faith dispute as to the accuracy of factual assertion in the PSR, the defendant’s request that the dispute be resolved is not a permissible reason for the government to refuse to make the § 3B1.1 motion, even if resolution of the dispute requires a . . . hearing. The government’s refusal to make the motion under these circumstances is 'unlawful and grounds for reproach' because it ignores the language of the guideline, its purpose, and the intent of Congress.”

So the split has sharpened. The analysis the Ninth Circuit approved in Johnson, with Judge Milan Smith disagreeing, is viewed as “grounds for reproach” in the Second Circuit. Here in the Ninth Circuit, we should be encouraged by Lee to distinguish the facts of Johnson, to challenge the validity of the Johnson under the rules of stare decisis, and, if all else fails, to seek rehearing en banc and Supreme Court review.

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

Tuesday, July 26, 2011

U.S. v. Yepez, No. 09-50271 (7-25-11) (Wardlaw with W. Fletcher; dissent by Timlin, Sr. D.J.).

A simple holding with broad implications. California state judges enjoy wide latitude to modify ongoing probationary terms under California law. As such, defendants facing federal mandatory sentences sometimes get the state judges to end probation right before the federal crime took place. This can make them eligible for the safety valve. In this case, one district court deferred to the state's nunc pro tunc termination; another did not. The 9th held that in calculating criminal history points for purposes of safety valve eligibility, district courts must credit state orders terminating probationary sentences. This accords with federal state comity, allows federal judges more discretion; and recognizes the flexibility of state judges who are aware of the consequences. The Guidelines do not forbid such an action. Moreover, these were not completed sentences; but were sentences were the state court still had supervisory authority. The 9th distinguishes precedent that does not allow state courts to alter completed probationary terms. Dissenting, Timlin argues that this is a shell game, and that the majority's reasoning should be controlled by 9th precedent, U.S. v. Alba-Flores, 577 F.3d 1104 (9th Cir. 2009), where the 9th held that completed probationary terms could be modified. Tilman argues that giving such power to state courts means that they will control federal mandatory minimum sentences. There is now a circuit split with the Eighth and Tenth Circuits on this issue.

Congratulations to Vince Brunkow of the Fed Defenders of San Diego.

Monday, July 25, 2011

U.S. v. Dann, No. 10-10191 (7-22-11) (Gertner, D.J., with B. Fletcher and Thomas).

This was an appeal from convictions for visa fraud, forced labor, document servitude, and harboring. Good help was apparently hard to find, and so the defendant, argued the government, brought a nanny/housekeeper from Peru under a false visa, and kept her involuntarily for two years. The defense was that there was a friendship, and the relationship soured, which lead to these accusations. The jury convicted. The 9th affirmed the convictions, but reversed a restitution order that directed that child support payments for the defendant go to the victim. The 9th reasoned that the child support payments were for the minor children, and that the parent was a mere conduit. The issues of child support are state matters and the children were not represented. There are other means.

John-Charles v. State of California, No. 09-16530 (7-22-11) (Ikuta with Thomas and Restani, Ct of Int'l Trade).

File under: be careful what you wish for. The petitioner was facing assorted robbery, burglary, and firearms charges. He had appointed counsel, whom he kept trying to fire. After the third time, the court allowed the petitioner to proceed pro se after a Faretta colloquy. On the very eve of trial, the petitioner said "Wait a minute, this is confusing, I want counsel." "No," said the trial judge; "you made your legal bed." "I want to fire myself," said the petitioner. "Too bad," replied the judge. "But I would even ask for reinstatement of my previous lawyer," said petitioner. Again the trial court said "no." The petitioner kept asking. Although the state courts found that there was no right to reinstatement of counsel, the trial court had abused its discretion in refusing reappointment here. The error, though, was harmless. The evidence was overwhelming, and the co-defendant was convicted, as well. In the 9th, the panel affirmed the dismissal. AEDPA mandates deference to state courts in the absence of controlling Supreme Court precedent. The state court could make the determination, and the 9th would not find structural or constitutional error requiring relief when the petitioner had competently waived counsel, and under these facts, waited until trial was about to begin to seek reinstatement.

Sunday, July 24, 2011

Case o' The Week: Norwegian Wood May Overshadow Great Threats Case - Bagdasarian

Bagdasarian is a tough case. Writing for the panel, Judge Reinhardt authors a great decision that reverses threats convictions against a man who had made some terrible rants against (then-candidate) Obama. Dissenting Judge Wardlaw writes a thoughtful opinion chroniciling the terrorism and assasination attempts that have plagued our time -- she would uphold the convictions.

To complicate matters further, three days after the decision was delivered a Norwegian domestic terrorist killed nearly 100 victims in Oslo and a kids' camp.

A beautiful illustration of why the First Amendment wasn't designed for the easy cases, but to protect rights in the hard cases. United States v. Bagdasarian, 2011 WL 2803583 (9th Cir. July 19, 2011), decision available here.

Decision by Judge Reinhardt joined by C.J. Kozinski; concurrence and dissent by Judge Wardlaw.

Facts: Bagdasarian, “an especially unpleasant fellow,” was convicted of two counts of threatening to kill or do bodily harm to a major presidential candidate, in violation of 18 USC 879(a)(3). Id. at *1. Weeks before the 2008 election, Bagdasarian made a bevy of racists posts about then-candidate Obama on a financial chat site under the username, “californiaradical.” Id. at *1. In addition, in one post he wrote regarding Obama, “he will have a 50 cal in the head soon.” Id. In another post, he wrote, (among other things), “shoot the nig . . .” Id. See also article here.

Others on the message board reported Bagdasarian to Secret Service, who tracked him down. A search of his house revealed a .50 caliber rifle and ammunition, other e-mail from election day with racist references to blowing up a car with a pistol, and links to a YouTube video with an exploding car. Id. at *2. Bagdasarian was convicted in a bench trial and appealed.

Issue(s): “[W]e begin by clearing up the perceived confusion as to whether a subjective or objective analysis is required when examining whether a threat is criminal under various threat statutes and the First Amendment.” . . .The issue is actually whether, as to a threat prosecuted under a particular threat statute, only a subjective analysis need be applied or whether both a subjective and an objective analysis is required.” Id. at *3

Held:Two elements must be met for a statement to constitute an offense under 18 U.S.C. § 879(a)(3): objective and subjective. The first is that the statement would be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure a major candidate for President . . . . The second is that the defendant intended that the statement be understood as a threat.” Id. at *4 (citation omitted). “Taking the two message board postings in the context of all of the relevant facts and circumstances, the prosecution failed to present sufficient evidence to establish beyond a reasonable doubt that Bagdasarian had the subjective intent to threaten a presidential candidate. For the same reasons that his statements fail to meet the subjective element of § 879, given any reasonable construction of the words in his postings, those statements do not constitute a “true threat,” and they are therefore protected speech under the First Amendment. . . . Accordingly, his conviction must be reversed.Id. at *8.

Of Note: Though we hope Bagdasarian long remains the Ninth's lead threats decision, two things will make us hold our breath until the en banc and Supreme courts pass by.

First, Judge Wardlaw writes a heck of a dissent from the majority’s reversal. Id. at *8. We disagree with her conclusion, but one must concede that it is a well-written opinion by a respected jurist.

The second bad fact comes from Europe: three days after this decision was delivered Norwegian Anders Breivik committed one of the worst acts of domestic terrorism ever seen. While the First Amendment is indifferent to current events, jurists read the New York Times. Bagdasarian suffers from extraordinarily bad timing.

How to Use: Bagdasarian clarifies that there are dual intent requirements for this threat statute – a necessary duality, to survive First Amendment scrutiny. Every statute that criminalizes threats must have a subjective intent requirement to pass constitutional muster. Id. at *3. Some threat statutes also have an objective standard as well. Id. at *3. Section 879(a)(3) does, now. This is a valuable clarification – the government must now also show that “a reasonable person who [perceived the threats] within or without the relevant context would have understood [them] to mean that [the defendant] threatened to injure or kill the Presidential candidate.” Id. at *4.

Start with Bagdasarian for any threats case – its holding may export well to other threat statutes with unclear subjective/objective intent requirements.

For Further Reading: Hear about Bond v. United States, 131 S.Ct. 2355 (2011)? You will. This June decision on 10th Amendment standing joins the “65% good time” rumor plaguing federal facilities. Jailhouse lawyers tout Bond as the golden key that will ensure the release of our federal clients.

It ain’t, and it won’t.

For a “liberal” summary of Bond from a conservative commentator, see the article here. The case is just a vanilla standing opinion: the decision sadly does not invalidate the entire federal criminal code.

First Amendment flag from

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


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Thursday, July 21, 2011

Divens: The Fourth Splits From The Ninth On The Third Level For Acceptance Of Responsibility

The government claims its discretion to move for the third acceptance of responsibility level under U.S.S.G. § 3E1.1(b) is coextensive with its almost unlimited discretion to file a substantial assistance motion under U.S.S.G. § 5K1.1. The Fourth Circuit says no. In a 3-0 opinion authored by Judge Motz, the court in Divens examined the plain statutory language and concluded that the third level depended only on conserving trial resources. Therefore, the government’s refusal to move for the third level because the defendant declined to sign an appeal waiver violated the Guidelines and required a remand and resentencing.

For those who like their legal reasoning linear and their constitutional rights protected, this is good news: Divens creates a split with the First, Fifth, Seventh, and Ninth Circuits. We should be using the Divens split to distinguish adverse circuit authority and, if necessary, to seek rehearing and certiorari from cases that divorce the third level from its purpose and endanger constitutional rights to litigate pretrial motions and to seek appellate review. Fortunately, with many prosecutors, abuse of the third level does not become an issue. Where the third level becomes an issue, we need to preserve the issue at trial, distinguish prior cases, and seek en banc and certiorari review based on both statutory construction and the constitutional interests at stake.

The briefing in this area can be adapted from several sources, including the Divens opinion, Ninth Circuit Judge Milan Smith’s partial dissent in Johnson, and the NACDL amicus brief in support of rehearing in Johnson. The Divens court demonstrated that simple rules of statutory construction require that the third level only be contingent on preservation of trial resources. The other circuits, including the Ninth, simply failed to analyze the fundamental differences between departure for substantial assistance and adjustment for acceptance of responsibility. The Divens opinion addresses this false analogy at pages 4-7 (see also Johnson amicus at 9-12).

Especially in the Ninth Circuit, the court’s acquiescence to prosecutorial punishment for the exercise of constitutional rights violates the basic rules of stare decisis (Johnson dissent at 13062-69, Johnson amicus at 3-6). Under pre-Protect Act precedent, courts could not deny the third level for acceptance of responsibility based on exercise of constitutional rights, including litigation of pretrial motions. This is not surprising, given the Supreme Court’s holding in Simmons that the protections of the Fourth Amendment, and the concomitant need to avoid deterring the exercise of those rights in pretrial motions, were so important that it is “intolerable that one constitutional right should have to be surrendered in order to assert another.” Similarly, although the Johnson court treated the right to an appeal as a procedural option, the Supreme Court has treated the right to appeal as protected: where the statute confers the right to appellate review, the defendant cannot be punished for exercise of that right (Pearce v. North Carolina).

In contrast to the pre-Protect Act solicitude for the exercise of constitutional rights, the court in Johnson held that Ninth Circuit protective precedent was no longer valid based on supposed changes in the Guidelines. However, as Judge Smith painstakingly demonstrated in his partial dissent in Johnson, the operative language was identical both before and after the Protect Act: the only interest upon which the government could deny the third point was conservation of trial resources. The same point was basic to the opinion in Divens. Therefore, we can argue in the district court and on direct appeal that the Johnson case is both distinguishable and lacking in precedential value because it overturns prior circuit precedent that only the en banc court could change. Just as a three-judge panel had no authority to overrule cases decided after an amendment to the Guidelines (Contreras), the Johnson panel lacked authority to overrule precedent where the amendment did not change the relevant language.

Before the enactment of the Guidelines, the Ninth Circuit rule was crystal clear: imposition of a more severe sentence based on exercise of constitutional rights itself violated the Constitution. See, e.g., Capriola, 537 F.2d at 320; Stockwell, 472 F.2d at 1187. When enacting the Guidelines initially, the Sentencing Commission walked a very delicate line in allowing a reward for acceptance of responsibility, which could not be administered as a punishment for exercise of constitutional rights. Before the Protect Act, now-Chief Judge Kozinski noted the blurred distinction between rewarding acceptance of responsibility and punishing exercise of constitutional rights: “[W]hether a sentencing disparity is viewed as a burden or a benefit depends ‘upon whether the shorter sentence is compared to the longer or the longer to the shorter.’” Aichele, 941 F.2d at 769 (Kozinski, J., dissenting). The Ninth Circuit rule was that, in order to "avoid unconstitutional application of Sentencing Guidelines," the acceptance of responsibility guideline had to be construed so that "a sentencing court cannot consider against a defendant any constitutionally protected conduct." Watt, 910 F.2d at 592. After the Protect Act, the need to guard against punishment for exercising Fourth Amendment and appellate rights is even greater. The Fourth Circuit decision in Divens prohibits imposition of extra time in custody for having the temerity to challenge unlawful governmental action on appeal. In the other circuits’ approach to the third level for acceptance of responsibility, the judiciary has abdicated its role in protecting the exercise of constitutional rights in favor of hyper-deference to prosecutors (Johnson amicus at 13-19).

In the trenches of the criminal justice system, conflict over the third point is usually resolved far short of formal litigation. Where the issue is clearly raised, we should be assuring that it is properly preserved, litigated based on factual and legal distinctions on appeal, and, if all else fails, litigated en banc and by petition for certiorari to resolve the split in favor of the Divens position. Congratulations to Team Divens of the West Virginia Federal Public Defender’s office for their persistence and advocacy on this important question!

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
Blair v. Martel, No. 01-99003 (July 20, 2011) (Graber with Reinhardt and Rawlinson).

When deciding whether petitioner is competent in habeas proceedings, a district court has to use the burden of proof set forth in Mason v. Vasquez, 5 F.3d 1220 (9th Cir. 1993), requiring the court to establish petitioner's competence by a preponderance of evidence. Initially sufficient evidence must be presented to cause the court to conduct an inquiry. Once that has been met, it is no one's burden to sustain. It is for the court to determine. The district court erred here in using the standard of competency for criminal trials under 18 U.S.C. 4241(d), where the petitioner shoulders the burden by a preponderance. The error, however, does not require reversal or remand because the issue raised here is a legal one that is barred as a matter of law -- the due process right to a speedy appeal. Under AEDPA, the state's determination is given deference. Whether a petitioner is competent or not, a habeas petition that raises only claims for relief that fail as a matter of law must be denied. A district court need not conduct a competency inquiry.

Wednesday, July 20, 2011

U.S. v. Bagdasarian, No. 09-50529 (7-19-11) (Reinhardt with Kozinski; partial concurrence and partial dissent by Wardlaw).

The 9th reverses a conviction for threatening a presidential candidate under 18 U.S.C. 879(a)(3). The defendant wrote racist ugly e-mails directed against then-candidate Obama. The messages include statements referencing weapons ("shoot the ---" and "...he will have a .50 cal in the head soon."). He was tracked down and admitted to writing the statements, but also said that he was drinking at the time. Concerning to the Secret Service were the weapons in his house. A charge and conviction followed. On appeal, the 9th finds that the speech, although repugnant, was constitutionally protected. The 9th reviews the history of smear campaigns and vicious speech in campaigns, extolls the virtues of free speech, discusses the jurisprudence of threats (Black) and clarifies the standard of review in such speech/threat cases (objective and subjective). Wardlaw concurs with the standard of speech, and the standard of review, but would find that the government had proved sufficient evidence to show that the threat met both an objective and subjective standard, and that it focused on imminent action.

Sunday, July 17, 2011

Case o' The Week: Causation Fixation Sensation -- Kennedy and Child Porn Restitution

Do you still have a hazy memory, from way back in your 1L Tort class, of that lecture on causation and proximate cause?

Thankfully, Judge Ikuta does -- and explains it all in detail in a comprehensive discussion of restitution in the context of child pornography prosecutions. United States v. Kennedy, 2011 WL 2675918 (9th Cir. July 11, 2011), decision available here.

Players: Decision by Judge Ikuta, joined by Judges B. Fletcher and Paez.

Facts: When Kennedy returned from an overseas trip through Sea-Tac Airport, searches of his laptop revealed 5,000 images of child porn. Id. at *1.

He went to trial, and promised not to contest the age of the minors in the images. Despite that promise the government was permitted, over defense Federal Rule of Evidence (FRE) 403 objection, to call agents who had investigated the child abuse that had produced the images at issue. Id.

Kennedy was convicted of possession and transportation of child porn. At sentencing, two of the victims portrayed in the images – Amy and Vicky – submitted large restitution demands. Id. at *2. The Court cut those demands dramatically, but still imposed a $65,000 restitution order. Id. at *3.

Issue(s): “[Kennedy argues] that the district court’s restitution order was unlawful under 18 U.S.C. § 2259 because the government failed to prove, by a preponderance of the evidence, the measure of the losses to Amy and Vicky that were proximately caused by Kennedy’s offense. This argument requires us to consider what constitutes a sufficient chain of causation between the defendant's offense conduct and the victims' losses to justify an award of restitution under § 2259. This difficult issue of statutory interpretation has been considered, but not satisfactorily resolved, by several of our sister circuits.” Id. at *5.

Held: “[A]lthough the government need not prove that Kennedy's conduct was the sole cause of the victims’ losses, it must prove that his conduct was a “material and proximate cause” of those losses. . . . Likewise, while there may be intervening links in the chain between Kennedy's conduct and the victims’ losses, such links must be related to Kennedy's conduct. . . The government has not carried its burden here, because it has not introduced any evidence establishing a causal chain between Kennedy's conduct and the specific losses incurred by Amy and Vicky. The government did not show how Kennedy's actions in transporting the images caused Amy's lost income and loss of enjoyment of life or Amy and Vicky's future counseling costs. Nor did the government introduce evidence that Amy and Vicky could have avoided certain losses had Kennedy not transported the images. Indeed, the government introduced no evidence that Amy and Vicky were even aware of Kennedy’s conduct.” Id. at *9 (citations omitted).

“Because the district court's restitution order directed Kennedy to pay for losses that the government did not prove were proximately caused by his offense, the order was unlawful under § 2259 and must be vacated.” Id. at *12.

Of Note: Judge Ikuta doesn’t quite say that it will be impossible for the government to prove adequate causation for restitution of child porn victims under § 2259 – but she comes awfully close. Id. at *12. She invites Congress to “reconsider whether § 2259 is the best system for compensating the victims of child pornography offenses.” Id. In short, Kennedy is close to the death knell for child porn restitution under § 2259 in the Ninth.

How to Use: Hard for those who defend the indigent to get too worked-up over Kennedy: our clients typically can’t afford to pay restitution in any event. The decision, moreover, is laced with other less-welcome holdings. Judge Ikuta finds that the district court didn’t err by permitting the testimony of the officers who investigated the underlying sex abuse of the minors in the photos, despite a FRE 403 objection. Id. at *3. Judge Ikuta concedes that the defense promised not to contest the age of the minors, but the defense did not offer to stipulate to this fact. Id. Absent that stipulation, the government was permitted to introduce this (very damning) evidence.

The morale? If you try to shimmy by without actually stipulating to facts that establish elements, anticipate a cool reception to a FRE 403 challenge when you get to Ninth.

For Further Reading: The good prof Berman has an interesting post on Kennedy, and a useful collection of resources on child porn restitution issues, here.

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Steven Kalar, Senior Litigator. Website at


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Wednesday, July 13, 2011

Brown v. Horell, No. 09-16643 (7-12-11) (Marbley, D.J., with Gould and M. Smith).

AEDPA deference again leaves an involuntary bitter taste. The petitioner is serving LWOP for first degree murder and other convictions. He was 21 at the time, with limited education, and a cocaine addict. In his petition, he claimed that his confession was involuntary and that he was prevented from calling a false confession expert. The police detective who questioned the petitioner played upon his desire to see the birth of his child. The focus was that cooperation and telling the truth would get him by his girlfriend's side during childbirth. The 9th went through the Supremes' analysis about how threats or promises to a defendant's family or children can cause a statement to be involuntary. The 9th, in Tingle, 658 F.2d 1332 (9th Cir. 1981), concluded that deliberating preying upon maternal or paternal instincts or the fear of not seeing children again is improper influence. the panel would find the statement involuntary. However, there is AEDPA. The 9th concludes that other circuits and courts are not so inclined to find that leveraging familial affections causes a statement to be involuntary. Threats or promises to family members, and especially children, do not warrant special attention as in the 9th, but are just one factor in a totality of circumstances analysis. AEDPA deference prevails. The 9th also affirms the denial of the claim that preclusion of a false confession expert prevented petitioner from mounting a complete defense. The trial court's decision to preclude was within its discretion.

Tuesday, July 12, 2011

U.S. v. Quizon, No. 10-50240 (7-11-11) (Berzon with Pregerson and Fisher).

This regards a condition of supervised release in a child pornography sentence. Is it too intrusive to require monitoring technology be installed on the defendant's computer-related devices? No, holds the 9th, because the monitoring is narrowed to the devices related to Internet use, and the conviction here related to downloading child pornography. The requirement is sufficiently focused, and can always be revisited in the future as technology changes.

U.S. v. Kennedy, No. 10-30065 (Ikuta with B. Fletcher and Paez).

The defendant was convicted of possessing and transporting child pornography. The court ordered $65,000 in restitution to be paid to two victims. The 9th reverses this restitution because the government failed to carry its burden of proving that the defendant's conduct proximately caused the victims' losses. The opinion focuses on 18 USC 2259 which requires restitution to victims in such cases. However, the harm must be proximately caused. The defendant's viewing of the pictures could not be linked directly back to the injuries suffered by the victims.

U.S. v. Duncan, No. 08-99031 (7-11-11) (Graber with Fisher and M. Smith).

The 9th remands to the district court to assess the competency of the defendant to waive his right of appeal from his federal death sentence.

Ngo v. Giurbino, No. 08-55564 (7-11-11) (Clifton with Bybee; partial concurrence and partial dissent by Noonan).

In an AEDPA deference case, the 9th affirms the denial of the petition challenging convictions for first degree murder, and six counts of attempted premeditated murder, arising from a gang related car chase. The 9th holds that there was sufficient evidence to support the convictions. The 9th also rejected the Batson claim, holding that the race-neutral explanations all withstood AEDPA deference. Noonan, in his dissent, argues that three counts of attempted premeditated murder should be reversed for insufficient evidence because there was little if any evidence to show that the petitioner knew there were people in the back seat of the car.

Richter v. Harrington, No. 06-15614 (en banc per curiam).

On remand from the Supremes after the 9th had reversed for IAC for failing to call forensic experts to explain evidence, the 9th concludes that the petitioner's other claims also fail. These include other claims of IAC for experts, a claim about a response to a jury note, and a Brady claim.

Monday, July 11, 2011

U.S. v. Gonzalez-Melchor, No. 10-50111 (7-8-11)(M. Smith with D. Nelson and Bybee).

The defendant went to a bench trial on a 1326 charge, lost, and the district court suggested that he waive his appeal for a sentence below the guidelines. The 9th found that the plea waiver was invalid and unenforceable. The district court cannot get involved in plea negotiations. That is what took place with the plea waiver. In a memorandum disposition, the 9th also held that the IJ failed to adequately advise the defendant of his voluntary departure options. The conviction is reversed and remanded for a prejudice determination.

Congratulations to Kristi Hughes of the Federal Defenders of San Diego.
Hurles v. Ryan, No. 08-99032 (7-7-11) (D. Nelson with Pregerson; dissenting by Ikuta).

The 9th reverses on the basis of judicial bias. The trial judge became involved in an interlocutory appeal, tried to appear as a party,and then presided over the murder trial and was the capital sentencer. The possibility of actual bias rose to an unconstitutional level. The judge had involved herself in the interlocutory appeal; had made comments about the case before witnesses had testified; and the comments about the competency of counsel. Dissenting, Ikuta decries the lack of AEDPA deference,and believes it should be followed here. The interlocutory appeal involved a legal issue, and one that can be set aside from bias.

Sunday, July 10, 2011

Case o' The Week: No "Second Bite at Guilt Apple" - Evanston, Allen Charges, and Jury Questions

"Where the evidence has closed, the government has rested its case, and the jury has concluded that it cannot reach a verdict despite its earnest efforts, allowing supplemental arguments effectively allows the government a second bite at the guilty verdict apple. As one scholar has noted, procedures for breaking jury deadlock not only give the government a second chance but also provide the government specific input from the jury about what doubts it needs to overcome.” United States v. Evanston, 2011 WL 2619277, *9 (9th July 5, 2011) (footnote, quotation, and citation omitted), decision available here.

In a great decision on an issue of first impression, Judge Hawkins refuses to let the government get a "second bite at the guilty verdict apple."

Players: Thoughtful new Ninth Circuit rule crafted by Judge Michael Hawkins.

Facts: Calvin Evanston was charged in federal court with an assault on his girlfriend, on a reservation in Arizona. Id. at *1. The trial took two days, then the jury deliberated for another two and advised it couldn’t reach a verdict. Id. The district court issued an Allen “or ‘dynamite charge,’” and asked for additional deliberations. Id. Three hours of additional deliberation didn’t help: the jury was still at a stalemate.

The trial judge then proposed to government and defense counsel a novel approach: questioning the jury, learning the issue upon which they were deadlocked, and permitting supplemental argument. Id. The AUSA (predictably) “welcomed the opportunity"; the defense (wisely) objected. Id. Over defense objection, the district court questioned the jury and allowed further argument anyway: two hours later the jury returned with a unanimous guilty verdict. Id. at *2.

Issue(s): “In a case of first impression, we examine whether a district court may, over defense objection and after the administration of an unsuccessful Allen charge, inquire into the reasons for a trial jury’s deadlock and then permit supplemental argument focused on those issues, where the issues in dispute are factual rather than legal.” Id. at *1 (footnote omitted). “Evanston appeals [the guilty] verdict, arguing that the district court’s actions in questioning the jurors as to the subject of their deadlock and allowing supplemental argument on those factual issues invaded the jury’s role a the sole fact-finder.” Id. at *2.

Held: “We conclude that allowing such a procedure in a criminal trial is an abuse of discretion accorded district courts in the management of jury deliberations.” Id. at *1.

Of Note: Evanston is a wonderful decision, lengthy and scholarly, with an exhaustive survey of the jury’s exclusive responsibility for fact-finding. It is thus miserly of us to complain about footnote 15 – but that note is worth a note.

In footnote fifteen Judge Hawkins carefully limits the decision’s holding as arising out of the Ninth’s supervisory powers over federal courts – and not (necessarily) out of any constitutional right. Id. at *10 & n.15. That’s an important distinction, because of the prejudice inquiry – this jury question issue is probably harmless error review instead of structural error and automatic reversal. Id. at *9. The origin of the rule is also important to our federal habeas comrades, who are always on the lookout for new § 2254 hooks. Judge Hawkins doesn’t eliminate the possibility that there’s a constitutional bar to this type of error – but the defense will have an uphill fight to constitutionalize this area of law in the future.

How to Use: Mine Evanston for two great veins of law: a welcome distrust of Allen charges, and hostility to the court’s and parties’ intrusion into the jury’s fact-finding domain.

The foundation of Judge Hawkin’s new rule is his emphasis on the dangers of
Allen charges – he stresses with apparent approval that more-enlightened circuits than the Ninth have barred this “dynamite” charge altogether. Id. at *3 & n.7 (O.K., the “more-enlightened” comment is our addition).

Link Evanston also provides good language against that trend of permitting the government to beg for jury pointers on eliminating reasonable doubt, during a trial. For example, one innovative ND Cal judge has added to his standing criminal trial order, “The Court may permit the jury to pose written questions to the witnesses.” See standing order here. In Evanston, however, Judge Hawkins repeatedly warns, “the jury may not enlist the court as its partner in the fact-finding process.” Id. at *3. The spirit (and arguably the holding) of Evanston weigh heavily against permitting factual questions from the jury before and during deliberations in criminal trials.

For Further Reading: Defense folks don’t like jury questions during a criminal trial: an inquisitorial system that unfairly lets the prosecutor patch holes in reasonable doubt, and that quickly bleeds into discussions of inadmissible evidence. For a nice summary of the many, many arguments against this inadvisable approach, with citations, see, Questions by Jurors - Disadvantages, at 3 Crim. Prac. Manual § 94:10, Westlaw cite CRPMAN § 94:10.

Image of the second bite at the guilt apple from

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


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Wednesday, July 06, 2011

U.S. v. Evanston, No. 10-10159 (7-5-11) (Hawkins with Kozinski and Gould).

The jury was hung. An Allen charge had been given. Declare a mistrial? Wait, said the court, why don't we have the jury say what issues trouble them, and have the lawyers re-argue? Over objection (key), that is what happened. On appeal, the 9th says: Wait, that is a terrible idea, and vacates and remands. The 9th finds no basis to allow such a procedure in federal court. It recognizes that judges have a great deal of discretion in running trials, and administering jury deliberations, but having them define issues after declaring themselves at an impasse, and then having lawyers argue, has the lawyers become part of the deliberations. Moreover, the court arguably went against the 9th's own model instructions that state that the jury should not tell anyone, including the court, how they stand. Issue defining does. Recognizing that several states do allow such a process, including Arizona (the court sits in the District of), the 9th stresses that the federal rules do not. The states had the benefit of a rule making process, and their own jurisprudence, that differs from the federal rules. The only other circuit that touches on this rejected it, and while not outright condemning the procedure, cast grave doubts on its use.

U.S. v. Rahman, no. 10-10293 (7-5-11) (O'Scannlain with Gould and St. Eve, D.J.).

Once a defendant enters into a plea agreement that waives all appeal rights, that language will be construed to include an appeal of a denial of a motion to withdraw his plea. Here, the defendant entered into a plea and plead guilty. He later sought to withdraw his plea, stating that he was "mislead" and "misguided" by his counsel. The court gave him new counsel, who proceeded to move to withdraw the plea, although not alleging specifically the basis for the misguiding. The 9th finds that general waivers of appeal apply generally, and cover all appeals, even a motion to withdraw a plea. The defendant can raise IAC, but not here, where the record was insufficient.

Sunday, July 03, 2011

Case o' The Week: Judge Tashima Brings a Different View: ACCA, Oregon Burgs, and Snyder

This week a panel of the Ninth assures us that an indictment alleging a burglary of a dwelling, plus the address of the dwelling, is enough to be sure that the structure burglered was actually a house or a residence -- not an RV, or shed, or truck, or booth. United States v. Snyder, 2011 WL 2573578 (9th Cir. June 30, 2011), decision available here.

How sure is the Ninth? Sure enough to trigger a fifteen year, mandatory minimum sentence for Mr. Snyder, whose previous Oregon convictions were mostly six-month stints.

Judge Tashima, by contrast, has apparently mastered street view on Google maps -- and worries about the justice of this decision in a compelling concurrence.

Players: Decision by Judge Bea, compelling concurrence by Judge Tashima.

Facts: Snyder pleaded guilty to being a felon in possession of a firearm, a violation of 18 USC § 922(g). Id. at *1. The fight was whether he fell within the Armed Career Criminal Act (ACCA), a statute that creates a fifteen year mandatory-minimum sentence. Id. ACCA eligibility can be triggered by three priors crimes of violence: here, one wasn’t disputed, the second was an Oregon second-degree burglary, and the third was an Oregon felony attempt to elude. Id. The district court found the burglary qualified – Snyder appealed. Id. The court found the attempt to elude the police didn’t qualify – the government appealed. Id.

Issue(s): “Snyder contends that because the term ‘building’ in Oregon’s second degree burglary statute, ORS § 164.215, is defined broadly, this court cannot presume the word, ‘building’ is intended in its ordinary sense” [for the modified categorical analysis of whether this is a generic burglary that triggers ACCA.] Id. at *3. Under Oregon law, a building, “in addition to its ordinary meaning includes any booth, vehicle, boat, aircraft, or other structure adapted for overnight accommodation of persons or for carrying on business therein.” Id.

Held: “[T]he burglary indictment in Snyder’s case did not simply allege he entered or remained in any unnamed building. It designated a specific building occupied by a business: ‘a building located at 1341 Rogue River Highway (Friendly Motors.”) Id. at *3. “Using the term ‘building’ together with a street address provided adequate proof, based solely on the documents of conviction, that the defendant was convicted of the entering or remaining in a ‘building’ as that term is commonly used, and as is meant in the generic definition of burglary in Taylor.” Id.

Of Note: Have you been to Oregon? Judge Tashima apparently has. He knows that almost any street address in Oregon can (and probably does) contain any matter of various edifices: it could be “full of trucks, trailers, RVs, booths, and sheds, as well as the site of a generic building.” Id. at *5 (Tashima, J., concurring).

[Ed. Note: click on the picture above right, or on the address following, or plug 1341 Rogue River Highway, Grant's Pass, Oregon into Google Maps, and click, "Street View." Sure looks like lots of things to burglar under the Oregon statute, besides a business or residence]

Judge Tashima explains that a mere street address plus the term “building” in an indictment is not, logically, enough to fairly satisfy the modified categorical inquiry on whether a generic “building” was burglared under Oregon law. Unfortunately, Judge Tashima must concede that this battle was lost a decade ago, when the Ninth held that the combo of an address and “building” was enough. Id. (discussing United States v. Stephens, 237 F.3d 1031, (9th Cir. 2011)).Link
How to Use: Two weeks ago, we complained that the Ninth wasted no time in using that lousy Supreme Court decision, Sykes. See blog here. Judge Bea continues the trend of deferring to controlling Supreme Court authority here in Snyder, and holds that the Oregon evading statute is an ACCA-predicate “crime of violence.” Id. at *5.

As of July 4, 2011, the Ninth hasn’t decided whether Sykes means that California’s evading statute is an ACCA trigger – but beware, beware, if such a conviction is your 922(g)(1) client’s third prior.

For Further Readings: Does ACCA law seem like ends-driven gobblygook to you? It does to Justice Scalia, too. See Derby v. United States, 2011 WL 2518893 (June 27, 2011) (Scalia, J., dissenting from denial of cert.)(“How we would resolve these cases if we granted certiorari would be a fine subject for a law-office betting pool. No one knows for sure. Certainly our most recent decision interpreting ACCA’s residual clause, Sykes . . ., would be of no help. The ‘rule’ we announced there, as far as I can tell, is as follows: A court must compare the degree of risk of the crime in question with the degree of risk of ACCA’s enumerated offenses (burglary, extortion, arson, and crimes involving the use of explosives) as a ‘beginning point,’. . . look at the statistical record, which is not ‘dispositive’ but sometimes confirms ‘commonsense conclusion[s],’ . . . ; and check whether the crime is ‘purposeful, violent, and aggressive,’ unless of course the crime is among the unspecified ‘many cases’ in which that test is ‘redundant with the inquiry into risk,’ . . . . And of course given our track record of adding a new animal to our bestiary of ACCA residual-clause standards in each of the four successive cases we have thus far decided, . . . who knows what new beasties our fifth, sixth, seventh, and eighth tries would produce? Surely a perfectly fair wager.”)

Image of 1341 Rogue River Highway, Oregon from,+Grants+Pass,+Oregon&um=1&ie=UTF-8&hq=&hnear=0x54c57bc8a54412ed:0xbeacc4b8398a39c9,1341+Rogue+River+Hwy,+Grants+Pass,+OR+97527&gl=us&ei=N-IQTpGCAoHKiAKz_MzQDQ&sa=X&oi=geocode_result&ct=title&resnum=1&ved=0CBsQ8gEwAA

Steven Kalar, Senior Litigator ND Cal FPD. Website at



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