Monday, January 30, 2012

U.S. v. Casasola, No. 10-50376 (1-30-12) (Schroeder with Gould and McCuskey, D.J.).

This is a derivative citizenship issue on appeal from a 1326 conviction. The defendant argued that he automatically received derivative U.S. citizenship upon his father's naturalization in 1997, when he was 14. The statute at the time required both parents to naturalize before the defendant's 18th birthday. His mother did not naturalize until he was 21. If the parents were separated, then the father's naturalization would have made the defendant a citizen. There was a distinction then between married and unmarried (the law changed one month after defendant's 18th birthday). The defendant argued that this violated his equal protection. It was not rational. Yes it was, concludes the 9th, on the basis of the argument that this protects the rights of a non-naturalized custodial parent. It also follows 9th precedent in Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003). The statute also survives another equal protection challenge in that it required the custodial parent, in a separation, to have sole custody. The 9th also declined to remand for resentencing in the wake of the criminal history change to the recency points of a prior conviction. The 9th declines to follow the lead of the 1st Circuit which permitted such a remand. The 9th, under Urena, 659 F.3d at 910, declined to follow the 1st Circuit where the sentence was reasonable and the procedure followed correct. There is now a circuit split on the issue.

Sunday, January 29, 2012

Case o' The Week: JDA is A-OK -- Gonzalez and Joint Defense Agreements

In good times and in bad, in sickness and in health, through habeas claims of ineffective assistance of counsel: what defense agreements have joined let no district court put asunder.

United States v. Gonzalez, 2012 WL 206266 (9th Cir. Jan. 25, 2012), decision available here.

Players: Big win by ND Cal AFPD Dan Blank and Research and Writing Attorney Steven Koeninger. Decision by Judge Hawkins, joined by Judge M. Smith and DJ Duffy.

Facts: Gonzalez and his wife were both charged of an insurance scam relating to a car, and with burning the car to further the scheme (a 10-year mand-min). Id. at *1. Their trials were severed. Id. Gonzalez, who went first, was convicted of the fraud and beat the burning-of-the car charge. Id.

Gonzalez offered to testify on his wife’s behalf at her trial; her counsel demurred, and the wife was convicted of all counts. Id. The wife filed a habeas alleging ineffective assistance of counsel ("I.A.C.") for failing to offer Gonzalez’s testimony. During the habeas litigation, the government sought subpoenas of the wife’s original defense counsel. Id. Gonzalez’s defense counsel, AFPD Blank, sought quashal of the subpoenas and depositions of the wife’s trial defense counsel. This motion to quash was based on an oral  joint defense agreement (“JDA”) between Gonzalez and his wife made before the original trials. Id. at *2. The district court denied the motions to quash, holding that a habeas claim of I.A.C. trumped any JDA, and that all information to and from trial counsel bearing on the I.A.C. claim was discoverable. Id. Gonzalez filed an interlocutory appeal. Id.

Issue(s): “On appeal, the government does not advance the rationale proffered by the district court. Rather, it argues that (1) Gonzalez did not sufficiently establish on the record that a JDA actually existed, (2) that such an agreement could not exist in the circumstances here, where Gonzalez’s defense was adverse to [his wife’s], and (3) even if one existed, the court correctly held that [the wife’s] section 2255 claim acted as a unilateral waiver of the privilege in these circumstances.” Id. at *3 (note omitted).

Held: 1 & 2: Existence of JDA: “Here, there was sufficient evidence in the record to support the existence of a JDA, at least to a point.” Id. at *4. “If their mutual interest is defined more narrowly [as to the wife’s innocence relating to the use-of-fire count], then it is possible that their other adverse positions did not undermine their joint defense privilege on this specific issue.” Id. at *5. 

3. Waiver by Habeas Claim: “[A]llowing unilateral waiver of confidential communications by a single codefendant without the consent of the others would likely severely undermine the rationale for the joint defense privilege in the first place . . . [W]e conclude the district court’s analyses regarding privilege versus work product and unilateral waiver by filing the section 2255 petition were in error.” Id. at *8 (citation omitted).

Of Note: Gonzalez joins United States v. Henke, 222 F.3d 633 (9th Cir. 2000) as a lead Ninth JDA decision. (Interestingly, Henke also arose out of the ND Cal). Mine Gonzalez heavily for its many JDA gems: these agreements can be oral, they can be evidenced by attorney conduct, they can be count-specific in the midst of other adverse defenses, and – most importantly – they cannot be unilaterally waived by a co-defendant asserting an I.A.C. claim.

That is a terrifically important holding: imagine a JDA that is only as good as long as all defendants remain happy and no one goes after their attorneys on a post-conviction habeas. That JDA would be worthless, making the defense of complex and multi-defendant cases impossible. Judge Hawkins, thankfully, well-understands the broader significance of the Gonzalez decision, and carefully explains why unilateral waiver of JDAs by IAC petitioners would make JDAs meaningless. Id. at *7-*8.

How to Use: As Judge Hawkins emphasizes, the defense can have an oral or an implicit JDA (and many times, it makes sense to do so). Nonetheless, sometimes the clarity of a written agreement can moot the government’s whining when the case later implodes. There are many flavors of written JDAs – from limited shared work-product agreements with minimal protections, to full “Henke” agreements with cross-duties of loyalty and confidentiality. Defense counsel interested in these various types of written JDAs can contact the ND Cal FPD for samples.               
For Further Reading: JDAs are wonderfully complicated beasts that spawn ethical issues by the bushel. For a concise outline of these knotty ethical questions, see here.

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Steven Kalar, Senior Litigator ND Cal FPD. Website at


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Thursday, January 26, 2012

U.S. v. McGowan, No. 10-50284 (1-26-12) (Reinhardt with Kozinski and W. Fletcher).

The 9th previously had reversed a judgment of acquittal following a jury's verdict of guilty. The case involved a prison guard's assault on two inmates. On this appeal, defendant argues that the court erred in failing to conditionally rule that he was entitled to a new trial. This was under Fed. R. Crim. P. 29. The 9th held that the court was not required to make such a ruling, and indeed, had no such authority to make such a ruling absent a defendant's motion. The 9th so held because the defense may want a judgement but not a new trial. There are strategic and actual reasons. Because there was no motion here, the court did not err in not ruling. The 9th also declined to rule on the IAC claim for failing to so move, leaving that to a post-conviction 2255 proceeding. Lastly, the 9th did vacate the 51 month sentence, having been imposed using suspect unreliable statements from a former inmate that was untested. On remand, the case is reassigned.
U.S. v. Gonzalez, No. 11-15025 (1-25-12) (Hawkins with M. Smith and Duffy, D.J.).

Joint Defense Agreements (JDA) can be great, except when they aren't. And, they aren't when the participants start pointing fingers in an IAC proceeding. Here, the 9th looks at a JDA between co-defendants, and spouses, charged with fraud and a fire count (10 year mandatory min). The trials were severed, when the husband said with chivalry that he did it and the wife knew nothing. After severance, the husband went first and then argued, unchivalrously, that he knew about the fraud (getting rid of a car for insurance), but not the fire. He was only convicted of fraud; the wife went down on all counts at her trial. He did not testify. The wife - the defendant here - raised IAC, arguing that her lawyer should have called the husband. The district court ordered depositions. "Wait," said husband, there is a JDA. The court shrugged and said when the parties raised IAC, the JDA became null. Not so, held the 9th, on an interlocutory appeal. Explaining JDAs, and the jurisprudence, the 9th concludes that attorney-client privilege extended to all involved. There appeared to be a JDA formed here, albeit orally. Now, comments may have been made after the JDA collapsed, but no findings were made. The 9th remanded for the district court to hold an in camera hearing to determine if and when the JDA ended, and when the comments about testifying were made.

Congratulations to AFPD Dan Blank of the Northern District of California (San Francisco) for the win.

U.S. v. Juvenile Male, No. 09-30330 (1-25-12) (Wardlaw with Gould and Bybee).

Does SORNA trump the protections of the Federal Juvenile Delinquency Act? Does SORNA survive constitutional challenges in the context of the FJDA? These issues were raised in a joint appeal brought by three juveniles convicted of aggravated sex abuse with children and ordered to comply with sex offender registration under probation or SR. The 9th held that Congress in enacting SORNA carved out an exception to the confidentiality provisions of the juvenile act, which allowed for registration which would disclose names. The 9th also upheld SORNA against a wide range of constitutional challenges in the context of juvenile adjudications.

Although losing, the Federal Defenders of Montana fought hard in mounting the challenges.

Sunday, January 22, 2012

Case o' The Week: Ninth Rejects Gov't's "Attempt" Attempt - Kuok and 18 USC Section 2

This holding ain't easy, but it's good, and well-worth the mulling it takes to understand:

It is a crime to cause someone to attempt to unlawfully export restricted military gear -- but it is not a crime to attempt to cause someone to do so.  United States v. Kuok, __ F.3d __, 2012 WL 118571 (9th Cir. Jan. 17, 2012), decision available here.

Players: Decision by Judge Bybee (above right), big win by San Diego Ass’t Federal Defender Todd Burns.

Facts: Kuok, a citizen of Macau, attempted to cause undercover ICE agents to unlawfully export restricted military gear. Id. at *1.They didn’t, of course: instead they arrested Kuok as he hit the Atlanta airport on his way to Panama to complete the deal. Id. at *2. He was charged in San Diego (more on that below) with attempting to export restricted military gear without the required license: a violation of the “Armed Export Control Act” or “AECA.” Id. at *1. That statute does not have an “attempt” provision. Id. at *7. Kuok was convicted at trial. 

Issue(s): “Kuok challenges his conviction on the grounds that the AECA and its implementing regulations do not create liability for attempting to cause another person to violate the AECA.” Id. at *7. “In response, the government points to 18 USC § 2(b), which states: ‘Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.’” Id. at *7.
Held: “[T]he government’s case at trial did not establish that Kuok caused an attempt to export: it established that he attempted to cause an export. That is, Kuok attempted to cause the undercover ICE agent to export the [restricted material] without a license.” Id. at *7 (emphases in original). “The government’s argument that attempt should rationally be read into § 2(b) fails in light of the rule against reading an attempt into a criminal statute that does not explicitly include it.” Id. “We hold that attempting to cause an export of defense articles without a license is not a violation of U.S. law, and vacate Kuok’s conviction on count three.Id. at *9.

Of Note: While this is a nice little win on an obscure and rarely-used statute, it is an important victory on a much bigger principle. The government’s argument in Kuok was dangerous: it would have created criminal liability if you attempted to cause a federal agent to do something. Id. at *7. The theory would have done so by radically expanding an already expansive statute: 18 USC § 2, the general federal “principal / aider & abettor” provision. Put differently, the government wanted to make it a crime for an aider and abettor to attempt to cause an offense – even if that offense was impossible (like getting federal agents to export restricted gear) and even if that offense was never completed. Judge Bybee doesn’t buy it, and explains why in a thoughtful and extended discussion. Kuok will be an key opinion for both “principal” and “attempt” law in the circuit.

How to Use: Why San Diego? Just because the ICE agents decided to cash Kuok’s money order there. Id. at *4. This smacks of “manufactured venue” – agents cherry-picking the district by manipulating the facts of the offense. Judge Bybee doesn’t bite, and because the Court doesn’t find the venue-manufacture “extreme” in this case Kuok’s venue challenge fails. Id. Critically, however, the Court declines to“decide the issue today” of whether “manufactured venue” exists as a defense in the Circuit. Id. If your case involves venue-manipulation, take a close look at Kuok’s venue discussion, and specifically the distinction between manufacture of jurisdiction and manufacture of venue. Id.
For Further Reading: How could Kuok be any better? By giving us a terrific defense of the duress defense – with a reversal for failure to give duress instructions. Id. at *13. Kuok is now one of the important, post-Dixon decisions in the Ninth on the right to a duress instruction.  For a recent discussion of the federal duress defense – and its kissing cousin, “necessity,” – see Monu Bedi, Excusing Behavior: Reclassifying the Federal Common Law Defenses of Duress and Necessity Relying on the Victim’s Role, available here.

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Steven Kalar, Senior Litigator ND Cal FPD. Website available at


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Friday, January 20, 2012

U.S. v. Juvenile Male, No.11-30065 (1-20-12)(McKeown with Guy and Tallman).

The issue of "Who is an Indian" is raised in this juvenile matter. The juvenile is at least one-quarter Indian blood, and is enrolled in a tribe, resides on a reservation, and has received membership benefits. He argues, however, that he does not consider himself an Indian. It does not matter here what he thinks, reasons the 9th, because under the jurisdictional test established in Bruce, 394 F.3d at 1223-24 and more recently in U.S. v. Maggi, 598 F.3d 1073 (9th Cir. 2010), there was sufficient evidence for a trier of fact to determine he was an Indian beyond a reasonable doubt. The juvenile defendant did not contest the blood quantum prong of Bruce (some Indian blood), and he met three of the four factors in the second prong, looking at recognition -- enrollment, residence, membership benefits. There was more than enough evidence, even aside from the own consideration, to meet the jurisdictional test.

Thursday, January 19, 2012

U.S. v. Solorio, No. 10-10304 (1-19-12) (Berzon with O'Scannlain and Lasnik, D.J.).

The 9th affirms a convictions for drug trafficking arising from an undercover operation. Of interest is the 9th's discussion and holding regarding interpreter oaths. Some courts have an interpreter swear an oath, under FRE 604, and it is kept on file. Other courts have interpreter's swear under FRE 603, witness oath, for the witness or trial. Here, there is no indication of any interpreter oath being sworn. However, there is no plain error because there is no prejudice. There is no indication that the interpretation is disputed or how it affected the trial. Of more concern is the 9th's allowance of DEA agents' testimony of other agents statements under a present sense impression and a finding of no Crawford violation. The 9th allowed the statements under a plain error analysis, finding no error. The statements were made during the course of the unfolding undercover buy, which was characterized as highly dangerous. The 9th bought the government argument that the non-testifying agents' were explaining what was happening so as to have support from other agents, and not for making a record for trial. This was characterized as like the "emergency exception" to Crawford carved out in Michigan v. Bryant, 131 S.Ct 1143, 1157 (2011). The statements were non-testimonial. The 9th concluded that there was sufficient evidence to support the convictions and no cumulative error.

Wednesday, January 18, 2012

U.S. v. Melendez-Castro, No. 10-50620 (1-18-12)(Per curiam with Nelson, Gould, and Ikuta).

In a collateral attack on a prior deportation, the 9th finds that the defendant had not been meaningfully informed of his eligibility for a voluntary departure. He appeared before the IJ in in 1997, having a petty offense conviction for stealing $6 briefs, and the IJ stating that he never uses his discretion to cancel removal if the defendant has a criminal conviction. The 9th concludes that although the defendant had been given his right to seek cancellation, he was basically told in the same breath that it was meaningless. The 9th remands for the district court to consider prejudice. The 9th paints a sympathetic portrait of the defendant (hint hint) of being a hard worker and pretty much law abiding with extended family here, all lawfully.

Congratulations to Amy Kapoor of the Federal Defenders of San Diego.
U.S. v. Kuok, No. 10-50444 (1-17-12) (Bybee with Pregerson and Davidson, Sr. D.J.).

The defendant tried to export defense articles without a license. A citizen of Macau, the defendant ran an import/export business. He sought to export military use articles from the US without a license. In these efforts, he was aided by the helpful undercover ICE agents, which led to his arrest in Atlanta while flying to Panama to complete a transaction. At trial, he raised a duress defense, arguing that a Chinese official made him seek the exports under threats to his family. The court declined to give a duress instruction. He was convicted of various conspiracy, attempts, and money laundering counts. On appeal, the 9th gave relief. It vacated two counts for lack of jurisdiction. One count involved money laundering, where the government failed to establish the $10,000 jurisdictional threshold. In an attempt to export count, the 9th held that attempting to cause an export of defense articles without a license is not a crime. In that count, the defendant tried to get an undercover agent to export an article; that differs from the defendant himself attempting. The statute does not reach to others. The 9th vacates two other counts and remands for a new trial because the court should have given a duress instruction. It was a close call, but the defendnat presented evidence that Chinese officials made a threat, were specific, and the defendant could not extricate himself. Although granting relief, the 9th turned down defendant's claims that the venue was manufactured. The 9th comes close to saying that manufacturing venue is always okay. The 9th also rejects various other arguments related to jury instructions.

Congratulations to Todd Burns of the Federal Defenders of San Diego. It is extraordinary to win on jurisdiction and on jury instructions.

Saturday, January 14, 2012

Case o' The Week: Into the Breach, Leaps the Ninth Circuit - Alcala-Sanchez

True, the government agreed to recommend less than three years in its deal; yes, the AUSA recommended over six years in a sentencing memo, but, if the government is really really sorry for the mistake, isn't that enough?
Nope. United States v. Alcala-Sanchez, 2012 WL 45462 (9th Cir. Jan. 10, 2012), decision available here.

Players: Decision by Judge Gould. Big win by San Diego Ass’t Fed. Defenders Vince Brunkow and Devin Burstein.

Facts: Alcala-Sanchez pleaded guilty to a fast-track illegal reentry deal, with the government promising to recommend within the range of offense level 12. Id. at *1. The PSR, unfortunately, hit the defendant with (an apparently missed) +16 crime of violence: it reckoned offense level twenty. Id. Probation thus recommended 63 months: nearly twice the 33 months the government could seek under the deal. Id.

A different AUSA than the one who negotiated the deal submitted a sentencing memo, agreed with the PSR and recommended 78 months. Id. “Breach!” howled the defense. Id. Eventually – but not immediately – the government recanted and recommended a sentence within the plea agreement’s range. Id. The district court found no breach, agreed with Probation’s calculations, and started sentencing from that higher offense level 20 range. Id. at *3.

Issue(s): “Alcala contends that the government breached the plea agreement and that the appropriate remedy is remand for resentencing before a different judge.” Id. at *3.

Held: “We agree.” Id. “Here . . . . the government admitted its mistake and recommended the agreed-upon sentence before the district court sentenced Alcala. But we conclude that the government’s later actions did not cure its earlier breach. Alcala had lost the benefit of his bargain that contemplated that the government would present a united front with him in recommending a total offense level of 12 and a 33–month sentence. Although the government in the end gave the court the correct recommendation stating that Alcala deserved the benefit of his bargain, the district court might well have thought from the government’s initial submission and its qualified statements in open court that it truly thought Alcala deserved more but it was required to assent to the plea agreement provision. Because the district court has an independent duty and freedom in rendering sentence, the harm to Alcala from the government’s initial breach and subsequent attempt to cure it is not calculable. Id. at *4.

Of Note: Is the standard of review for the government’s breach of a plea agreement de novo, or clearly erroneous? Yes – at least in the Ninth. Id. at *3. Judge Gould notes that the Court “has not been entirely consistent” in applying its standard of review for this issue, but finds it unnecessary to resolve this issue in this case. Id.

How to Use: What is the remedy for this breach? It could be remand, with an order that the government sincerely recommend what it was supposed to recommend (and again be ignored again by the D.J.). Happily, the Ninth will have none of that – the remedy here is specific performance. Id. at *5 (“[T]he government breached the plea agreement, so we must vacate Alcala’s sentence and give Alcala the benefit of his bargain, specific performance of the plea agreement.”) (emphasis added).

This is potent stuff. Note that the opinion doesn’t say that Probation was wrong with its higher offense level, but it doesn’t matter – the government struck a deal (maybe a deal with “wrong” guidelines?) and now it and the court, it seems, are stuck with the deal. Alcala-Sanchez gives some real teeth to breach law, and in the process facilitates negotiated settlements, by apparently holding district courts to the government’s deal when the AUSA goes sideways on a bargain. It is a great opinion to wave around when an AUSA is caving to a Probation Officer intent on busting a nice negotiated dispo.
For Further Reading: Not a good week for the Feds, in the Ninth. In the remarkable United States v. Lopez-Avila decision, the Ninth calls out an Arizona AUSA by full name – repeatedly – for misrepresentations of a transcript on cross-examination. 2012 WL 89727 (9th Cir. Jan. 12, 2012), decision available here. Author Judge Bea is so palpably angry at this misconduct that he provides the web site for filing a DOJ Office of Professional Responsibility complaint in the opinion itself. Id. at *8 (Link to DOJ complaint here).

Lopez-Avila is a well-written, forceful decision that promises to be a lead prosecutorial misconduct case. Read Lopez-Avila soon: if experience is any guide, the Arizona USAO is even now lobbying to try to get the AUSA’s name removed from the opinion.

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Steven Kalar, Senior Litigator ND Cal FPD
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Friday, January 13, 2012

U.S. v. Lopez-Avila, No. 11-10013 (1-12-12) (Bea with Noonan and Walter, D.J.)

It isn't nice to tell a half truth. It isn't prudent to lie to a court and jury. It especially isn't good to lie about a transcript before that court. All of this occurred in this case, and this appeal on double jeopardy grounds to the 9th. The defendant had entered into a plea for drug trafficking. At the PSR, she disclosed that she was coerced into carrying drugs. The court allowed her to withdraw from her plea, and the case proceeded to trial. At trial, the defendant testified. The prosecutor crossed examined, and impeached her with her statements from the COP hearing. The statement read by the prosecutor from the transcript was: "Ms. Lopez, has anyone threatened you?" "No." A recess later, defense counsel moved for mistrial because the exact language included the language: "Ms. Lopez, has anyone threatened you or forced you to plead guilty?" The prosecutor said that he dropped the last phrase because his reading, about threats, was a fair one. The court disagreed, as did the 9th, because the question concerned pleading guilty and not being threatened to commit the offense. The district court granted a mistrial. The court then denied the motion to dismiss for double jeopardy. On appeal, the 9th affirmed. It held that for double jeopardy to bar a retrial, the prosecutor, in Oregon v. Kennedy had to act with the goal of terminate the trial, not to win through improper means. As the 9th stressed, "The only relevant intent is intent to terminate the trial, not intent to prevail at trial by impermissible means." The 9th found here that the prosecutor purposely omitted the language, purported to have quoted the exact language, but that his intent was to win, not to goad the defense into moving for a mistrial. The 9th also found meritless defendant's claim that 28 USC 530B, concerning the rules regulating government lawyers, also applied to the state's interpretation for double jeopardy. Although the 9th ruled against the defendant, the 9th took the prosecutor to task in harsh language, and suggested to the court it might consider various options, including dismissal of the case with prejudice under its supervisory powers, or sanctions against the prosecutor. The prosecutor's name is spelt out throughout the opinion.

Congratulations to Mark Williman of the CJA panel in Tucson, Arizona.

Tuesday, January 10, 2012

U.S. v. Alcala-Sanchez, No. 11-50030 (1-10-12) (Gould with Nelson and Ikuta).

"A promise made," Robert Service penned, "is a debt unpaid." The 9th followed this sentiment, although not so poetically, in this breach of a plea bargain case, holding the government failed to pay its debt of a sincere recommendation. The government offered a fast-track deal to a 1326 defendant, agreed that the prior conviction was a +8 (total 16), and agreed to recommend an offense level of 12 (with no agreement as to the sentence within the range). The probation officer in the PSR concluded, however, that "dissuading a witness by force or threat" was a crime of violence, and worthy of a +16. The government filed a sentencing chart/memo that repeated the PSR's calculations. At sentencing, the prosecutor who negotiated the deal, but not the one who filed the sentencing chart/memo appeared, and refused to disagree. The sentencing was continued, at which at various hearings, the prosecutor acknowledged the breach, but dithered a bit. It finally withdrew the chart and stuck by the deal. There was a lot of explaining about groaning caseloads and mistakes caused by workload. He defendant argued the government still had breached, but the court found that the government was not in breach because it stuck by its plea. On appeal, the 9th acknowledged an inconsistency in its standards of review for claims that the government breached its plea breach of plea (de novo vs clearly erroneous), but decided that because the court clearly erred, resolution of the inconsistency could wait for another day, or breach. The breach here was the failure of the government to live up to its bargain from the get go. The government breached by making a wrong recommendation. Even though the prosecutor eventually admitted her mistake, and fell in line with the recommendation, it did not matter. A breach, intentional or inadvertent, still was a breach. The defendant lost his right to a "united" front as to the argument that the offense level was a +8 and not a +16. The sentence had to be vacated and remanded, and to a different judge.

Congratulations to Deputy Fed Defenders Vince Brunkow and Devin Burstein of the Fed Defenders of San Diego.

Sunday, January 08, 2012

Case o' The Week: Corporations are people too -- sometimes. Havelock and federal mail-threats statute

Is a corporation a "person?" That question has sparked a potent political debate, between the Occupy Folks and presidential candidate Mitt Romney. See article here.

Sitting en banc, the Ninth has also recently wrestled with that question -- and answered (in a different context), "no." As used in a federal threats statute, a "person" means a "natural person" -- a human being. See United States v. Havelock, 2012 WL 29347 (9th Cir. Jan. 6, 2012) (en banc), opinion
available here).

Players: Decision by Judge B. Fletcher. Big win by D. Az. AFPD Dan Kaplan.

Facts: Kurt Havelock (above left) bought an assault rifle. He then sent a batch of mail less than an hour before the ‘08 Superbowl. Id. at *1. This mail bore addresses of media outlets and music-related websites. Id. Inside each item was a “media packet” with a rambling “manifesto.” Id. The manifesto had allusions to violence; some in the past tense, and some prospective – like, “I will sacrifice your children upon the alter of your excess . . . . I will slay your children.” Id. at *2.

After visiting the Post Office, Havelock drove to a parking lot near the stadium where the Superbowl was to be played, to “wait for an opportunity to shoot people.” Id. He then had a change of heart, self-surrendered, confessed, and was ultimately charged with six counts of mailing threatening communications, in violation of 18 USC § 876(c). Id. Havelock’s motions to dismiss the indictment and for a judgment of acquittal were denied by the district court. Id. at *3.

Issue(s): 1. Issue One: “Person?” Havelock argues “that the phrase ‘any other person’ in § 876(c) refers exclusively to natural persons and, because the media packets were addressed to corporations, the indictment failed to allege facts sufficient to constitute an offense.” Id. at *3.

2. Issue Two: “Contents?” Havelock argues “that the district court erred in interpreting § 876(c) to allow a trier of fact to consult the content of a mailed communication to determine whether it was addressed to a natural person.” Id. at *3 (emphasis added).

Held:The term ‘person’ as used in § 876(c) refers exclusively to natural persons. To determine whether a threatening communication is ‘addressed to any other person,’ § 876(c), a court may consult the directions on the outside of the envelope, the salutation line, and the contents of the communication. Havelock’s writings were not addressed to natural persons. Accordingly, we reverse Havelock’s convictions and remand to the district court for the entry of a judgment of acquittal.” Id. at *10 (emphases added).

Of Note: Five judges join Judge B. Fletcher in full. We need six to win. So what is the “holding” of Havelock?

The individual holdings – that “persons” means a natural person, and that you can look inside an envelope to determine to whom it is “addressed” – are found within subsections of the opinion. See, e.g., Section II A at *5 (“person” means a “natural” person). Each of those sub-holdings garnered at least six votes, but, different judges cast the sixth vote for different subsections and holdings. (For example, Section II.A won Judges Schroeder and Reinhardt over, II.B convinced Judges Wardlaw, Fisher, and N.R. Smith). Because every subsection in the opinion earned a six-judge majority (albeit shifting majorities), all the holdings are controlling law. See generally United States v. Rodriguez-Preciado, 399 F.3d 1118, 1138 (9th Cir. 2005) (Berzon, J., dissenting) (providing good primer on plurality decisions); cf. Bradley v. Henry, 518 F.3d 657 (2008) (ord.) (adding note describing limits of five-judge plurality).

How to Use: In a pointed concurrence and dissent, Judge Reinhardt takes issue with the holding that permits a court to rummage within a mailing to locate to whom it is “addressed.” Id. at *18. Judge Reinhardt explains this holding is unnecessary, because Havelock’s “manifesto” didn’t contain a true “threat.” Id.

It is a thoughtful discussion of “threats” and free speech, building on last year’s great Bagdasarian decision. Id. at *19. (Notably, several judges join this “threats” analysis). The encroachment of “threat” laws on the First Amendment is a hot new issue: last month, Maryland District Judge Roger Titus issued a terrific decision finding 18 USC § 2261A(2)(A) – the interstate stalking statute – unconstitutional in a case involving Twitter posts. United States v. Cassidy, 2011 WL 6260872 (D. Md. Dec. 15, 2011). Judge Reinhardt’s opinion in Havelock deserves a close read as we begin new “threat” battles.

For Further Reading: In 1997 Mel Gibson portrayed an angry, paranoid, crazy loner in Conspiracy Theory. (A prescient role for the actor). The movie posits that secret assassins are conditioned by the CIA to obsess on Catcher in the Rye, to permit the agency to track them. See article here.
LinkIt turns out that several notorious real-life shooters liked the book. See article here.
So did Kurt Havelock. Havelock, 2012 WL 29347, *2.

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


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Friday, January 06, 2012

U.S. v. Havelock, No. 08-10472 (1-6-12) (en banc).

Sitting en banc, the 9th holds that for a conviction under 18 U.S.C. 876, which is mailing a threat to a person, the addressee has to be a "person" - an individual or natural person. To show this, the contents of the communication can be considered. In this case, which involved a diatribe against American society and the evils presented, copies of which were sent to media outlets, an individual was not named. The diatribe was sent before Super Bowl XLII in Glendale, Arizona, and the defendant, after mailing the letters, went to the parking lot with several weapons with an intent to shoot. He did not. He had second thoughts, following these bad thoughts, called his family, and turned himself in. Because the threats were again not addressed to individuals, no threats were made. The convictions (one for each letter sent to a media outlet) were vacated and dismissed. (B. Fletcher wrote and was joined by Kozinski, Berzon, Callahan, and Ikuta). Concurring in the result, N. Smith would read the statute to include threats made to corporations and other entities. He however would reverse because the government failed to present sufficient evidence of specific intent. Concurring and dissenting, Reinhardt (joined by Wardlaw and Berzon in part and Schroeder in part), first would find no evidence of any threat, and second, dissents from the holding allowing a review of the contents. Concurring and dissenting, Wardlaw would hold that the defendant's communications were addressed to natural persons but that they were not threats. Dissenting, Fisher joined by Rawlinson, would find that threats were made to natural persons in the contents.

There is now a circuit split on this issue.

Congratulations to AFPD Dan Kaplan and Jeff Williams of the Arizona FPD Office (Phoenix) for the win.
U.S. v. Russell, No. 11-30030 (1-5-11) (McKeown with Tashima and Tallman).

Some resolutions for the New Year for drug couriers so as not to become crotchety, and having to spend next new year, and many more, in custody: (1) do not buy a last minute, one-way ticket in cash from Seattle to Anchorage on Alaska Airlines; (2) do check luggage; (3) try not to be described as "a black male wearing a leather jacket and a large necklace"; and (4) do not consent to a search of person, twice, and especially by holding up your arms and spreading your legs. The consent to search of person is especially important, because, in this situation, police can search the outside of your clothes, including the groin area. Here, the defendant did all the above described, had a prior drug and firearms conviction, and was suspected in drug trafficking. Upon the pat down, the officer "lifted up to feel," and felt something "hard and unnatural" in the groin area. Seven hundred Oxycodone pills were found. Did such a consensual search become unreasonable by patting down the groin? The 9th considers whether a pat down including the groin is reasonable under a general search of person consent, and finds it was under these circumstances: the defendant gave consent, was not under arrest, could have left, cooperated, and the pat down followed standard procedure. Indeed, the 9th noted that the groin was a common place to hide drugs, and even cited the officer saying that 80% of the narcotics he finds are in the groin area (note 2....maybe that is where the officer most often looks?). The 9th finds support in the other circuits, that have upheld over-the-clothes pat down searches were reasonable under a general consent.

Tuesday, January 03, 2012

U.S. v. Rodriguez-Ocampo, No. 10-50528 (12-30-11) (Per curiam with B. Fletcher, Silverman, and Wardlaw).

In a per curiam decision, the 9th vacates an erroneously enhanced 1325 sentence. The sentence was enhanced because the defendant had been removed previously from the United States subsequent to an aggravated felony. However, the original removal had been under a constitutionally infirm stipulated removal (made under a procedure without judicial review). As such, the removal could not be used to enhance. The government argued that the defendant had been physically removed, and that is what counted. The 9th disagreed, because the first removal had to be constitutional.

Sunday, January 01, 2012

Case o' The Week: Gimme Shetler -- Post illegal-search statements

LinkThe Ninth ended 2011 with a bang, with a pair of great suppression cases relating to statements. We'll turn primarily to Shetler and post illegal-search statements, but Valenzuela-Espinoza (discussed below) deserves a close read as well. United States v. Shetler, 2011 WL 6794021 (9th Cir. Dec. 28, 2011), decision available here.
Players: Decision by Judge Reinhardt (below left), joined by Judge Berzon and visiting District Judge Kennelly. Big win for Central District Ass’t Federal Defenders Victor Cannon, Liliana Coronado, and Ashwini Mate.

Facts: After Scott Shetler’s daughter snitched him out, cops searched his garage and found chemicals and gear related to cooking meth. Id. at *1. That search was legal.

The cops then seized Shetler, got his girlfriend to “consent” to a search of the house, searched his house and re-searched the garage. Id. at *1-*2. This second round of searches produced many more things used to make meth, including chemicals and flasks. Id. at *2. The detained Shetler watched this search from outside. Id. About five hours after being seized Shetler was Mirandized and confessed to making meth. Id. at *2.

The next day Shetler was Mirandized and interrogated twice more (in custody), expanding his confession each round. Id. The district court upheld the search of the garage, suppressed all evidence seized in the subsequent illegal searches, but permitted Shetler’s multiple confessions to come in at trial. Id. Shetler was convicted.

Issue(s): “Shetler argues . . . that the district court erred in denying his motion to suppress the statements regarding his drug activities that he made to a DEA agent on the night of his arrest outside his home and those he made during his interview at the DEA office 36 hours after his arrest.” Id. at *4. “The question . . . is whether the district court erred in finding that the statements made by Shetler at the DEA office were not sufficiently connected to the preceding illegal searches to constitute ‘fruit of the poisonous tree.’” Id.

Held: “The government did not bear its burden of showing that Shetler’s statements were not the product of illegal searches. Contrary to the district court’s determination, there is no evidence in the record to support the conclusion that the statements were ‘the product of the initial legal search of the garage . . . and were not tainted by the illegal searches of the garage.’” Id. at *5.

Of Note: The Shetler suppression holding gets the big defense buzz. The opinion, however, also gives us some first-impression interpretations of a federal drug statute here in the Ninth Circuit. Section 856(a)(1) of Title 21 criminalizes the “use” of a place with the purpose of manufacturing, distributing, or using drugs. Id. at *8. Shetler’s home drug lab was to make meth for his own use (he claimed): a crime outside of the “commercial” drug acts targeted by this crack-house law (he argued). Id.

Judge Reinhardt rejects this interpretation, but adds limitations to the statute to dodge Shetler’s constitutional challenge. Id. at *9 (restricting application of this statute in the context of residences, to offenses where drug manufacture, distribution, or use is a primary purpose).

It is an important decision – for us in NorCal, it is hard to read Shetler’s interpretation of the crack house statute without an uncomfortable thought for all those little private, home-use marijuana grows out amongst the redwoods.

How to Use: Regardless of any evidence from the illegal searches, agents probably had probable cause to (arrest) and question Shetler about his drug activities. If that’s true, what’s his beef with the use of his confessions?

Answering that question, Judge Reinhardt carefully explains the different analyses for confessions arising from illegal detentions, versus illegal searches. Id. at *5. One additional problem with statements after illegal searches is that interrogated suspects can be confronted with evidence that was illegally obtained. Id. Another unique problem with post-search interrogation (versus post-seizure), is that a suspect who knows that evidence has been seized will view silence as futile, and will confess. Id. at *6. It is a compelling, and common sense explanation of why post-search confessions deserve their own unique analysis.

Turn to Shetler when faced with a post-search confession, and bear in mind that post illegal-search confessions may be much more vulnerable than post illegal-seizure statements.

For Further Reading: An equally good case on the suppression of statements was delivered on the same day as Shetler: United States v. Valenzuela-Espinoza, 2011 WL Link6794013 (9th Cir. Dec. 28, 2011), decision available here.

In Valenzuela-Espinoza, Judge Betty Fletcher refuses to let agents off the presentment hook when they elicit a confession eight hours after arrest, and don’t bring the suspect before a magistrate until the next day. Id. at *1-*2. It is an excellent decision on the McNabb-Mallory rule, and is a case that may prompt a shake-up for court arraignment policies in a Ninth Circuit district or two . . . .

Image of the Honorable Stephen Reinhardt from Image of the "Gimme Shelter" cover from

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


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