Thursday, May 31, 2012

U.S. v. Perea-Rey, No. 10-50632 (5-31-12) (Wardlaw with Goodwin and Sessions, D.J.).
The 9th finds a violation of the Fourth Amendment when agents entered into a curtilage and conducted a search and seizure.  The agents followed an alleged illegal defendant from the border to a house.  The agents saw him knock on the front door and then go around to a side door, and go in.  The agents then went into the carport, knocked, pulled guns and ordered people out.  The 9th found this violated the Fourth Amendment.  The agents should have gotten a warrant.  What about knock and announce, asked the government?  Doesn't work, answered the 9th.  The government cannot use consenual knock and announce as a subterfuge.  Subjective intent plays a role.  The agents here walked up to the side door, in the carport, rather than the front.  This opinion does a nice job of using the recent Jones case to explain this was an invasion of space and property, and also a violation of Katz.  Just being able to watch or see into the curtilage was not enough.  This is a great opinion for the curtilage overview and requirement for warrant.

Congratulations to Greg Murphy, Deputy Fed Defender of the Fed Defenders of San Diego.

U.S. v. Gomez-Hernandez, No. 10-10441 (5-31-12)(Tallman with Graber and Berzon).
In a 1326 sentencing, the 9th holds that an Arizona state conviction for "attempted aggravated assault" was a categorical crime of violence for the +16 adjustment under 2L1.2.  The 9th acknowledges that Arizona aggravated assault is not a crime of violence because the mens rea also encompasses recklessness; it is broader than attempt, which is a specific intent.  Attempted aggravated assault has no recklessness, and requires a weapon.  The 9th sees no conflict between attempted aggravated assault being a crime of violence, and aggravated assault not being a crime of violence.

U.S. v. Leal-Vega, No. 11-50065 (5-30-12) (M. Smith with Kleinfeld and Algenon, D.J.).
The 9th considers whether a California drug conviction under Calif. Health and Safety Code 11351 is categorically a drug trafficking offense under the Controlled Substances Act (CSA) for purposes of sentencing for an illegal reentry after deportation under 2L1.2.  The defendant here pled to illegally re-entering after deportation.  At sentencing, the government argued that his state conviction was a +16; defense argued that it was not a drug offense under the CSA.  The 9th agreed it was not because the state code contained substances over and beyond the CSA.  The 9th explained that the categorical approach was to have a national standard, and the government's argument that the drug trafficking enhancement should look at the state statute runs counter to that policy aim.  This holding is important as a general matter.  Alas, for the defendant, the 9th then proceeded to use the modified categorical approach, which looks at court documents to narrow the conviction.  Here, the complaint, read together with the minute order and abstract judgment, satisfies the modified categorical standard that the substance he pled to selling (black tar heroin) was a substance under the CSA.  The 9th also held that the district court, which had only imposed a +4 enhancement, had not committed harmless error in imposing the sentence.  The 9th reversed and remanded.  

Defense counsel was Carl Gunn, long time AFPD in FPD Calif Central (Los Angeles) who retired and is now in private practice.  Congratulations for beating back the categorical approach.

Flourney v. Small, No. 11-55015 (5-30-12)(Clifton with Farris and Ikuta).
Using AEDPA deference, the 9th considers whether a petitioner's confrontation rights were violated when an forensic analyst testified about a DNA match for which she was not the primary technician.  The 9th held that at the time, this issue was still unsettled -- being post-Crawford, but before Bullcoming.  Moreover, the 9th spent time discussing how Sotomayor's concurrence in Bullcoming left open the issue of expert testimony.

Tuesday, May 29, 2012

U.S. v. Johnson, No. 11-10290 (5-29-12) (Graber with Schroeder and O'Scannlain).
This case involves Form 4473.  What is it?  It is an ATF form that asks the buyer whether he is indeed the purchaser.  It is to stop "straw purchasers."  Here, the  defendant made two separate purchases of firearms:  25 Polish AK-47 and then later 14 additional AK-47s and 20 Yugoslavian AK-47s.  In both purchases, he filled out Form 4473 and stated that he was, indeed, the intended purchaser.  Almost immediately after the second purchase, he delivered the firearms to another person.  That person was soon stopped, and agreed to cooperate.  He pointed to defendant as a straw purchaser.  Convicted at trial, defendant argues on appeal that the government should have had to prove under Neder and materiality that the ultimate purchaser was an unlawful purchaser.  The false statement had to matter.  The 9th was unconvinced.  It reasoned that the form specifically asked for this information for a purpose, and that the intent was that the buyer say whether he was buying the guns for himself.  The  9th joins with the 8th on this, and aligns with other circuits as well.  The 9th also rejected the argument that the information on Form 4473 had to be given to the jury.  It is a legal question whether the information on the form had to be kept by the firearm licensed dealer, and the question on the form met the requirements of 924(a)(1)(A).  Lastly, the 9th found that a perjury instruction need not have been given for a false statement the cooperating witness made to law enforcement.

Monday, May 28, 2012

Case o' The Week: New Translator Case Sparks "Tense" Berzon Concurrence - Romo-Chavez

Here’s a tip for law students, applying to be Ninth Circuit clerks. Did you stretch a bit on your resume, and claim to be “fluent” after a couple of years of high school Spanish?

Brace yourself for your Berzon interview: a judge for whom “fluency” means -- well, fluency. 

United States v. Romo-Chavez, 2012 WL 1861613, *5 (9th Cir. May 23, 2012) (Berzon, J., concurring), decision available here.

Players: Hard-fought appeal by Az. AFPD M. Edith Cunningham and Defender Jon Sands.

Facts: Romo-Chavez’s car was stopped at the border. Id. at *1. After his initial explanation for his visit to the U.S. raised suspicions, the car was searched and meth discovered. Id. Romo-Chavez was interviewed by one agent, with a border patrol agent translating. Id. Romo-Chavez later explained he didn’t understand the border patrol agent’s Spanish. Id. at *2. At trial, Romo-Chavez argued that he didn’t know the meth was in the car’s secret compartments. Id. Romo-Chavez also argued that items such as a cell phone taken from his car – and lost – would have corroborated his story explaining why he was visiting the States. Id. The border agent’s recitation of the translated interview was admitted against the defendant. Id. at *2-*3. Romo-Chavez was convicted. Id. at *2.

Issue(s): “We must decide whether the Confrontation Clause or the Federal Rules of Evidence prohibit the government from introducing at trial a defendant’s admissions to a police officer because the translator who facilitated them, while conversationally fluent, would not qualify as a court interpreter.” Id. at *1.

Held: “Taking the [United States v. Garcia, 16 F.3d 341, 342 (9th Cir. 1994)] factors together, the district court did not err in concluding that [the border patrol agent] served merely as a language conduit for Romo-Chavez.” Id. at *4. The Sixth Amendment right to be confronted with the witnesses against him “is not implicated here because the [border patrol agent’] translations are properly construed as Romo-Chavez’s own statements.” Id. at *4.

Of Note: In a compelling concurrence, Judge Berzon questions the fluency of the agent who translated the interview. Id. at *5-*7 ("[T]his type of verb tense mistake is one that someone with a good grasp of Spanish should not be making.") She also continues to sound the Confrontation Clause bell, correctly warning that the Ninth’s dusty old Nazemian case is inconsistent with the Supreme’s new Confrontation Clause line. Id. at *8; see also United States v. Orm Hieng, 2012 WL 1655934, *11 (9th Cir. May 11,2012)(Berzon, J., concurring) (“I believe the continued vitality of Nazemian after Crawford is an issue that merits en banc review in an appropriate case.”) The concurrence is a very good read – an interesting mixture of scholarly analysis and practical complaint. See id. at *9 (wondering why the Department of Homeland Security can’t have competent interpreters available at the border or – better yet – record interviews so they can be later translated by qualified interpreters).

How to Use: Preserve this issue: the government’s dodge of the hearsay bar by offering an interpreter’s account of a defendant’s statement as an “admission.” 

The Ninth tolerated this evidentiary end-run in United States v. Nazemian, 948 F.2d 522(9th Cir. 1991). A decade or so later, however, the Supreme Court decided Crawford v. Washington, 541 U.S. 36(2004), and reminded us that the Confrontation Clause actually matters. 

Does Nazemian’s tolerance of interpreter statements survive Crawford? Judge Wallace thought so, this month in Hieng, 2012 WL 1655934, at *7 – but as noted above, Judge Berzon isn’t convinced. This is an issue ripe for en banc review – help the Ninth get it right by preserving it and taking it up.
For Further Reading: The Ninth is one active-judge bigger this week, after the confirmation of Judge Paul Watford. See Press Release here.  Judge Watford, an Orange County CA native, is a former CD Cal AUSA. 

Keep an eye out for the eventual panel of CJ Kozinski, Judge Ikuta, and Judge Watford: the latter two both clerked for the Chief. See blog entry here. Would be fascinating to be a fly on the wall of that post-argument conference -- two former clerks weighing-in on an outcome with their former boss (but now weighing-in with a vote!) 

Image of the "Lost in Translation" poster from

Image of the Honorable Paul Watford from

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


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Friday, May 25, 2012

U.S. v. Harris, No. 11-10053 (Noonan with B. Fletcher and Paez).
[Disclosure:  This is an Az FPD case].
The defendant was sentenced by a judge other than the one who presided over the trial.  The 9th held this violated Fed R Crim P 25(b) which states that a different judge can take over sentencing after a verdict or finding of guilt only if the original judge is unavailable.  This was not the case here.  The defendant was charged with three counts of assaulting a correctional officer.  The defendant suffered from organic brain damage and was prone to violent behavior.  Before trial, the court rejected a plea agreement with a stipulated sentence of 60 months, but indicated that a sentence below the guidelines might be warranted given the circumstances.  After trial, and on the day of sentencing, the case was reassigned to a visiting judge.  There was no explanation given.  The visiting judge explained she was aware of the PSR and objections, but had no other information.  The judge denied a request to reset the sentencing before the original judge (thereby preserving the issue), and preceded to sentence the defendant to 188 months.  The 9th held this reassignment to be an abuse of discretion.  Rule 25 presumes the presiding judge takes the sentencing, unless the judge is unavailable due to death, illness, absence and so forth.  The presiding judge seems to have been available but had just transferred the case to a visiting judge, as was the court practice.  A busy docket or a court in turmoil from a tragedy (the Tucson shootings) did not justify such a transfer.  The case is remanded for resentencing.

Congratulations to AFPD Eric Rau of the Az FPD Office (Tucson).  (Eric's impassioned argument must have led to the court either erroneously stating his name as "Raw" or giving him a nom de guerre).

Nitschke, No. 10-36121 (5-24-12)(Paez with Fisher and Clifton).
The 9th affirmed the denial of petitioner's claim for habeas relief under Apprendi.  The petitioner failed to preserve the Apprendi issue in his sentencing for manslaughter, the maximum sentence of which was enhanced to 30 years (which he got) for being a dangerous offender.  The state courts held that the claim was procedurally barred, and was not plain error.  The 9th defers to the state, finding no interwoven with federal law.  The claim was procedurally defaulted for federal habeas review.

Fenebock v. Dept. of Corrections, No. 11-15880 (Graber with Schroeder and O'Scannlain).
This petition concerns issues arising from the state's primary witness to a murder:  a juvenile.  After the murder, the child was taken into CPS custody.  Prior to trial, the defense did not have access to him.  Moreover, in trial preparation, a social worker warned the juvenile about the tricks defense lawyers play and how they are nasty.   Then, at trial, the time for cross-examination was limited.  In considering these issues, the 9th denies relief.  The 9th holds that there was no absolute right to pretrial access to the witness.  There was also no prosecutorial misconduct for the acts of another government agency charged with acting in the juvenile's best interests.  Finally, the limitation of cross-examination was permissible and affected no rights.

Thursday, May 24, 2012

U.S. v. Romo-Chavez, No. 10-10424 (5-23-12) (O'Scannlain with Lasnik, D.J.; Berzon concurring)
(Disclosure:  This is an Az FPD case)
The 9th allows the government to introduce at trial a defendant's admissions to a Border Patrol agent translated by another agent acting as an interpreter.  The 9th holds again that an interpreter is a mere conduit unless a factoring test weighs toward a fact witness.  The defendant here came across the border at Nogales, Arizona.  Asked why he was crossing, he said that he had to return two shirts to a department store in Scottsdale (several hours away).  Suspicious of the answer, further investigation took place, and a secret compartment was found, filled with meth.  The defendant than gave some answers as to where he was going, coming from, and how he got the car.  The admissions were given to an officer who did not speak Spanish, but translated by another agent, who said he could speak Spanish.  The admissions were challenged at trial.  On appeal, the admissions were challenged on confrontation and hearsay grounds.  The 9th held that the interpretation did not violate either grounds.  The confrontation basis was met because the interpreter was present and could be questioned.  He was a conduit.  The hearsay test was met because the interpreter was supposedly disinterested (although an agent), had no motive, and had the requisite Spanish skill.   The 9th also found no error in not giving a jury instruction for destruction of evidence.  Berzon concurred, questioning whether the interpreter could avoid the  confrontation and hearsay bar.  She  does not buy that the interpreter had the skill.  She does not believe the agent was fluent in Spanish.  She pointed out that he grew up listening to Spanish, but perhaps not speaking it.  His schooling in Spanish was sketchy.   He also faltered during some tests conducted in court.  The agent had trouble with verb tenses and even with the Miranda rights.  Berzon stresses that the ability to translate could alter the meaning.  However, Berzon would find that any error was harmless given the evidence and defendant's story.  Berzon asks though why Homeland Security cannot provide certified interpreters at border crossings, or videotape questioning.  Surely the government has the resources for this.

Wednesday, May 23, 2012

U.S. v. Carpenter, No. 10-30146 (5-22-12) (per curiam with Kozinski, Tallman, and Ikuta).
Note to defendants wanting to represent themselves:  if you are going to ask to represent yourself, try not to wait mid-trial, after the government had rested its case.  The defendant was in trial on charges of producing child pornography and permitting a child to engage in such sexually explicit conduct.  After the government rested, and when the court asked if the defendant was going to testify, his counsel indicated that the defendant wanted to represent himself.  On appeal, defendant argued that the court should have held a Faretta hearing.  He also raised a statute of limitations argument.  The 9th rejected both arguments.  On the Faretta issue, the 9th held that it was not timely.  Moreover, it was not explicit.  Although counsel stated it, defendant never himself said he wanted to represent himself, even though he engaged the court in discussion as to witnesses.  The 9th also held that the statutes 18 USC 2251(a) and 2251(b) were subject to the extended statute of limitations in 3283.  The definition of sexual abuse in 18 USC 3509(a), to which the extended statute applies, covers conduct that is the basis of the charges.  The 9th joins two other circuits in so finding.

Sunday, May 20, 2012

Case o' The Week: Ninth Throws Monkey Whrench into Pretext Searches - Cervantes

Ever suspect that the Exceptions have swallowed the Rule? That the Fourth Amendment is a quaint old ideal fatally eroded by Whren, pretext stops, and the convenient “community caretaking” concept?

Take heart.  United States v. Cervantes, 2012 WL 1700840 (9th Cir. May 16, 2012), decision available here.

Players: Decision by Judge Pregerson, joined by Judge D.W. Nelson. Dissent by Judge Ikuta. 

Big win for CD Cal AFPD Michael Tanaka.

Facts: Cops surveilling a suspected stash house saw a man enter, then leave with a large white box. Id. at *1. The man drove away, parked, and gave the box to Cervantes. Id. Cervantes drove on a freeway, and then through a residential neighborhood. Id. Cops thought this was “counter-surveillance” creating probable cause, but didn’t stop Cervantes. Id. 

 Cervantes then stopped at a residence and puttered about; three hours later he drove away. Id. Cops find a reason for a traffic stop, arrest Cervantes for driving without a license (he had one), and find two kilos of cocaine in the box after an impound search. Id. at *2. 

The district court upheld the search using, among other theories, the “community caretaking” function. Id.

Issue(s): “[T]he government contends that the officers had probable cause to search Cervantes's vehicle based on (1) [the officer’s] conclusory statement that the box in Cervantes's possession came from a ‘suspected narcotics stash house,’ and (2) [the officer’s] observation that Cervantes ‘did not take a direct route to his location.’” Id.

Held: “The government asks us to place heavy reliance on [the officer’s] conclusory statement that, based on [his] training and experience, the white box in Cervantes's possession came from a ‘suspected narcotics stash house.’ But in the absence of any underlying facts as to why [the officer] suspected the house was a ‘stash house,’ this statement is entitled to little, if any, weight in the probable cause analysis.” Id. “While [the officer’s] training and experience are factors to be considered, it is incumbent upon the arresting or searching officer to explain the nature of his expertise or experience and how it bears upon the facts which prompted the officer to arrest or search. Conclusory statements and a general claim of expertise will not suffice.” Id. at *3 (internal quotations and citation omitted). 

“The government also urges us to rely on [the officer’s] observation that Cervantes ‘“did not take a direct route to his location.” Cervantes's unremarkable driving practices, however, fall short of any indicia of criminal activity.” Id. at *3. “[The officer’s] observations regarding Cervantes's benign travel tactics, when coupled with [the officer’s] conclusory statement about the box in Cervantes's possession, are insufficient to establish probable cause. . . . This is only reinforced by [the officer’s request that [other officers] develop a lawful reason to stop Cervantes. Had probable cause existed to stop Cervantes, there would have been no need to develop an independent reason to pull Cervantes over.” Id. at *4.

Of Note: This is a good decision on probable cause for an auto search. It is a great decision, however, on the much-abused “community caretaking” exception. Id. at *4. In a compelling analysis, Judge Pregerson explains that the community caretaking exception cannot be a “ruse for general rummaging in order to discover incriminating evidence.” Id. The opinion surveys Ninth authority on the “community caretaking” concept, questions whether the cops in Cervantes even complied with the vehicle code, id. at *6, and ultimately rejects the community caretaking exception because -- in part -- the impoundment and search was a “pretext to search for narcotics.” Id. 

Cervantes is now the lead “community caretaking” opinion: very much worth a close read. 

How to Use: Read Cervantes, think Whren. In Whren, the Supremes endorsed that hated “pretext” concept – OK to use traffic stops as a pretext for what is really a Fourth Amendment search. 517 U.S. 806 (1996). 

In Cervantes, the Ninth weighs the cops’ pretextual stop against the government, in the context of both the probable cause analysis, id. at *4, and in the community caretaking analysis, id. at *6. Take a good look at Cervantes’ handling of Whren when wrestling with a pretext traffic search.  
For Further Reading: Whren makes for bad searches, protects bad cops, and makes for bad police-community relations. So correctly observes D.C. District Judge James Robertson, in a compelling little summary of what’s wrong with Whren. See “How Whren Protects Pretext,” available here.

Monkey wrench image from

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


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Friday, May 18, 2012

Rodgers v. Marshall, No. 10-55816 (5-17-12) (Zouhary, D.J.,with Reinhardt and W. Fletcher).
In habeas, the 9th considers whether a petitioner, who at trial had represented himself, can get counsel for a new trial motion.  The 9th emphatically holds "yes!"  The 9th finds that the period for the filing of a motion for a new trial (post-verdict, pre-sentencing) is a critical stage that still warrants counsel.  Here, the petitioner had been convicted of aggravated assault and other offenses, and deemed he needed a lawyer to help him with a new trial.  If a defendant had waived counsel, he can still request representation at this stage, and the court must give it due deference.  Such a request was made here, but brushed off by the state trial court (the petitioner had vacillated with representation and self-representation over a period of time, and the court was frustrated).  Under AEDPA, the state courts' decision denying counsel were unreasonable and contrary to established Supreme Court precedent.  Because the right to counsel is fundamental, a showing of prejudice is not required.  The case is remanded to allow the filing of a new trial motion with counsel.  The petitioner does not get counsel for sentencing because he did not request representation at that stage and proceeded pro per.

Thursday, May 17, 2012

U.S. v. Cervantes, No. 09-50521 (5-16-12)(Pregerson with Nelson; dissent by Ikuta).
Usually defendant's Fourth Amendment motion is quixotic when it concerns an auto stop, an arrest, and impoundment of the vehicle, in which two kilos of cocaine were found and inventoried.  Tilting at windmills?  Not so here.  The defendant was observed leaving a so-called stash house, taking the long way home, and then, the next day, after some trips, driving his car again.  The agent asked the local police to follow and make a lawful arrest to help investigate.  The police observe the "failure to stop" and pulled defendant over.  He could not find his license (located the next day), and so was arrested for driving without.  But, before he was arrested, the car was impounded.  The 9th reversed the denial of the Fourth Amendment motion, holding that there was no probable cause to stop the defendant after leaving the stash house.  The conclusion that it was a house of ill-repute was a mere conclusion; no facts were given.  As for taking the long way home, there could be many innocent reasons.  Thus, leaving the house, with a white box, is not enough.  As for the stop, the problem with that comes from the police failing to impound the car after the arrest.  They impounded first, which violates the California procedure.  The police also acted pretextually.  Lastly, the car posed no danger.  Dissenting, Ikuta argues that the simple rule, that all police know, that a car can be impounded incident to arrest, has been smudged with this opinion.  To her, and the police, the car did pose a threat, parked on the side of a four-lane busy street, miles from the defendant's home, and without a passenger to drive it home.  Moreover, the arrest was lawful, given the lack of license at the time.  The police impounded incident to arrest; the arrest does not have to come first.

Congratulations to Michael Tanaka of the FPD Office, Central District of  Calif (LA).

Wednesday, May 16, 2012

U.S. v. Zhou, No. 10-50231 (5-10-12)(M. Smith with Kleinfeld and Sammartino, D.J.)
An infinite number of law clerks, conducting an infinite number of Westlaw searches, eventually would connect the Second Amendment, Leo Tolstoy and James Taylor in a paragraph search, but the odds are that the wait would be long.  Better would be to look up this opinion, where the amendment, author, and singer are used to signify the importance of "and."  And what is the Second Amendment, "War and Peace", and "Fire and Rain" doing?  Is this an opinion about firearms and intellectual property?  Nope.  The 9th deals with a HIPPA violation, and the knowledge required.  42 U.S.C. 1320(d) concerns violating access to a patient's records.  The misdemeanor offense requires that the information be obtained "knowingly and in violation of this part...."  The defendant was a health research assistant, who was let go, and subsequently accessed patient records.  He was charged.  He moved to dismiss the charge because it did not allege that the defendant knew that the statute prohibited him from obtaining health information.  The 9th held that the statute did not require specific intent; rather, the "knowingly" requirement referred to the fact of obtaining information, and the "and" then meant that such obtaining violated HIPPA.  The 9th goes through the statute, the language, and the precedent concerning "knowingly" followed by an "and".  The examples used on p. 5045 show the value of "and" (i.e. "keep bear arms," "War Peace" and "Fire Rain.").  Yes, a strange trio-query:  did each member of the panel pick one, or did the clerks weigh in?  In any event, why a Russian author?  And why does the opinion say that Taylor singing "Fire and Rain" without the "and" would have "confusingly crooned" the song?  Crooned?  Really?  Still, he's got a friend in the 9th, which shows how how sweet it is to be cited by them.

U.S. v. Vallee, No. 11-30131 (5-10-12)(Callahan with Hug and D. Nelson).
Does a judge have to sign a summons for a SR violation?  "No," said the 9th, because the court read and signed the petition, and ordered a summons be issued.   Here the defendant was oh-so-close to finishing out his SR term.  He was in the final month when he was arrested for drunk driving.  The order was issued four days before his term was to expire.  The defendant did not show for the hearing, and was arrested later, after his SR expired.  It was tolled, even though the court did not sign the summons, because the court did sign the petition and ordered the summons be issued.  The Fed. R. Crim. P. do not specifically state who must sign a SR warrant.  Rule 4 states that judges must sign summons on complaints; Rule 9 states that a clerk must sign summons on indictments.  Since Rule 9 allows for summons to be signed in some instances by clerks, it can be assumed that Congress, by requiring a court to sign a SR petition, does not require a judge's signature for a SR violation summons or warrant.  The 7th Cir. takes a similar approach.

Thomas v. Chappell, No. 09-99024 (5-10-12)(Graber with Bea; dissent by O'Scannlain).
"Bo did it!"  At least that is what petitioner claimed when prosecuted for two murders that occurred in 1985 in a homeless encampment near San Francisco bay.  The petitioner was last seen with the victims, had been traveling with them, had partied with them, and had a high powered rifle that matched the bullet wounds.  He also made some strange comments, and asked a friend to hold a rifle cleaning kit for him.  But, there was no motive, no direct witness evidence, the petitioner had reported the rifle stolen, and there was evidence that someone else (Bo) did it.  The problem was that defense counsel failed to find the witnesses that placed Bo at the scene, and having him make some comments that could be construed as guilty knowledge.  The state supreme court had found counsel ineffective, but held no prejudice.  The district court found prejudice and granted the writ.  The 9th affirmed, also holding that prejudice existed.  It was a close question at trial without the witnesses (5-day jury deliberation) and the 9th concluded that the state court constitutionally erred in not finding prejudice.  Dissenting, O'Scanlain argued that the majority made the case closer than it was, and that the evidence supported petitioner's guilt.

U.S. v. Hieng, No. 09-10401 (5-11-12)(Wallace with Bybee; concurrence by Berzon).
This weekend, if you are pulling weeds from your garden, reflect that you are engaged in a present sense impression.  How?  Well, according to the 9th, yanking up marijuana plants, and keeping a mental tally, is a present sense impression, because that is how we tick off things (cf one opinion, two lattes, three strikes?).  But wait, I am getting ahead of the opinion.  This case deals with marijuana cultivation of over 1,000 plants.  It also seemingly has a 1,001 evidence issues.  The defendant, when confronted, sputtered that he did not know the plants were growing in the vineyard (grapes of wrath they were not) because he was just a renter who spent nights on the property (it got dark out there).  He also gave some other statements that could be used against him (small plants do not smell).  He turned down a deal, after a proffer meeting, and went to trial.  Upon conviction, he got 10 years.  On appeal, he raised some interesting evidentiary and confrontation issues.  Back to the plants, and present sense impression, where he argued that the agent's testimony as to the number of plants (for the mandatory minimum) was hearsay.  The testimony was that the agents yanked or cut the plants, walking the rows, and kept a mental tally, which the agents reported to the agent in charge, who tallied them up, and wrote it down.  To come into evidence, the number of plants yanked and tallied had to meet the evidentiary exceptions.  Like some sort of legal "inception," the first level was the present sense impression  (lets see, one plant, two plants, three plants, etc) and then when given to the agent, it became his recorded present sense impression of their present sense impressions made while fresh in his mind.  His report was a recorded recollection (5082).  Berzon, in her concurrence, takes issue with this, fearing that the present sense impression was not so present, as one had to remember the count, and there was a period of time when "thought" entered into it (how many did I yank?  and why does it matter?).  She believes that the majority is stretching the exception, and points out that the parties nor the court thought it applied.  She would let it in under the reliability exception of FRE 807, excusing lack of pretrial notice because of the notice given in trial.  Expect to see this case cited whenever agents have numbers at stake.

Another interesting issue is the interplay between Crawford and evidence when it comes to interpreters.  In the matter of a defense statement, must the interpreter be available for confrontation?  After all, the defendant is there and it is his statement. The 9th, under the pre-Crawford Nazemian precedent, considers an interpreter a language conduit, and need not be subject to cross examination, unless the issue of factual inaccuracies come up, and then the interpreter is a declarent.  The majority carefully parses the issue, under a plain error review, and resolves that Nazemian remains binding, for now.  Berzon concurs in the admission, under plain error review, and because the interpreter was in court and could have been called.  However, Berzon cautions that an act of translation is an art, and much less rigorous than a lab report, such as in Bullcoming.  She believes this should resolved en banc, with, it seems, the defendant having the right to confront the interpreter.

The issues keep on coming in this case.  The next concerns the use of the defendant's proffer statements to impeach him.  The defendant did not object at trial, but argues now that the court sua sponte should have asked if he had waived his rights under Fed. R. Crim. P.  11(f) and  FRE 410.  The government did not have a written plea or proffer letter, but argued that in such a setting, the defendant would have waived as a condition.  The 9th lets it in, because that is the practice of getting such waivers, and there was no objection, and the court should not have a duty to sua sponte inquiry.  Still, a written proffer is the better practice.

Sexton v. Cozner, No. 10-35055 (5-13-12) (Tallman with Tashima and Ikuta).
The 9th affirms the denial of petitioner's claims.  The petitioner plead to two counts of intentional murder, rather than aggravated murder, for which he received two terms, running consecutive, of at least 25 years each (a total of 50).  The COA allowed petitioner to argue that counsel committed IAC in his plea and sentence.  The 9th held that counsel was not ineffective in his advice regarding the plea, and the plea colloquy established a knowing plea.  The petitioner knew the sentences could be run consecutive or concurrently.  Counsel's argument at sentencing focusing on prior childhood abuse at the hands of a relative was strategic, even if it upset the family.  The 9th also had an opportunity to consider the recent Martinez case concerning IAC of PCR counsel.  The 9th broadened the COA to include a claim of IAC against PCR counsel, where petitioner asked for a limited remand to establish such ineffectiveness.  The 9th denied the request, although admitting that in other instances, if the record is bare as to the actions of PCR counsel, a remand could be warranted.  Here, PCR counsel could not be considered ineffective for failing to raise an IAC claim against trial counsel, given that the 9th found that any such claim would be meritless.

The issuance of any opinion on a Sunday is unusual.  The issuance of any non-capital, or non-emergency opinion, is even more so.  Yet, strangely, this non-capital non-emergency opinion was filed Sunday.  The fact that it was filed this past Sunday, May 13th, should be noted given the circumstances of petitioner's offenses.  The petitioner, when he was 17, murdered his mother and father.  Sunday was Mother's Day.  A strange macabre coincidence?

Lopez v. Brewer, No. 12-16084 (5-15-12) (McKeown with Rawlison, concurrence and dissent by Berzon).
Disclosure:  This is an Arizona FPD-CHU case.
Once again, Arizona is mounting an execution under authority that awards total discretion to the Director of Corrections in how it is administered.  The Director changes the protocol from execution to execution, and as such, courts reviewing the state's methods are "on a rolling ship."  The 9th faced another challenge to the protocol, and expresses, again, great frustration, and even anger, at the state's claims to be trusted that no harm will occur, that everything will go fine.  In the context of whether a preliminary injunction should be granted, the 9th finds a lack of a serious question in terms of success on the merits.  The 9th also affirms the denial of the 8th Amendment challenge as to pain from the placement of the IVs (femoral cuts), and the equal protection challenge as to the altering protocols.  The 9th does grant limited relief in requiring the state to provide access to counsel up to 9:00 A.M. (the execution begins at 10 A.M.).  Dissenting, Berzon excoriates the state for its failures of proof, its lack of transparency, its secretive "in my discretion" answer to how things will be done, and for its stonewalling.  Berzon argues that a violation of due process occurs.  As she ends her dissent:
Executing someone convicted of a capital crime is a grim endeavor.  Reviewing the details of impending executions to assure against unconstitutional executions is grim as well, a task judges would rather avoid. Yet, while we as judges cannot and should not micromanage executions, we do have an obligation to stand as a last bulwark against excessively painful administrations of the death penalty. To do that, we need to be presented with the relevant facts, gathered in some feasible fashion. As matters now stand, Arizona has made the gathering of such facts by condemned prisoners so difficult that meaningful judicial consideration at a relevant time is not possible. By doing so, Arizona has denied Lopez, and others awaiting execution in Arizona, due process of law. I would stay Lopez’s execution until this denial of due process is corrected by one or more of the means I have indicated.

Sunday, May 13, 2012

Case o' The Week: Ward[ing] off BOP Restitution Schedules - Ward and Restitution Orders

At the max rate of $1.15 an hour, it will take petitioner Ward twelve years to  work off his restitution order while employed by Unicor in federal prison, if every dime went to the victims.

(Then he can start in on his special assessment).

In an interesting decision on restitution, the Ninth tackles the requirements of restitution orders, and pushes back on the delegation of these orders to the Bureau of Prisons. Ward v. Chavez, 2012 WL 1592171 (9th Cir. May 8, 2012), decision available here.

Players: Decision by Sr. District Judge Rakoff, joined by Judge Milan Smith. Dissent by Judge Wallace.

Facts: Ward was sentenced to 300 months for armed bank robbery convictions. Id. The district court ordered Ward to pay a $1,000 Crime Victim Fund assessment, and over $27,000 in restitution to the crime victims. Id. These two obligations were ordered due “immediately.” Id. Ward went to federal prison and voluntarily went to work for Unicor. Id. The BOP deducted portions of his Unicor payments and applied these withholdings to his restitution obligation. Id. Ward filed a series of habeas actions challenging this withholding. Id. at *1-*2. The district court found that the original sentencing judge had not impermissibly delegated its responsibility to set a restitution schedule, because it had not directed the BOP to set a schedule, and because Ward was voluntarily working. Id. at *2. Ward appealed. Id.

Issue(s): “The issue in this case is whether, under the Mandatory Victims Restitution Act of 1996 (“MVRA”), a district court impermissibly delegates its obligation to set a restitution payment schedule when it orders ‘immediate payment’ with the expectation that the Bureau of Prisons (“BOP”) will work out a payment schedule with the prisoner . . . .” Id. at *1. “Since [previous authority] forecloses Ward’s argument that he is being ‘forced’ to participate in the voluntary [BOP restitution program], the issue in this case thus turns on whether by ordering ‘immediate’ payment of restitution, the district court failed in effect to set a restitution repayment schedule and instead delegated its statutory duty to the BOP.” Id.

Held:We hold that where the sentencing court has failed to consider whether the defendant has the financial resources to pay restitution immediately, ordering inmate payment impermissibly delegates to the BOP the court’s obligation to set a payment schedule.Id.

Of Note: With good time, Ward will serve over twenty-one years. The odds of any victim seeing any significant restitution payment seems exceedingly small. That doesn’t prevent, however, a lengthy dispute between two senior judges: Senior District Judge Rakoff of the SD NY (author of the majority decision), and Senior Ninth Circuit Judge Wallace. See id. at *9 (Wallace, J., dissenting). 

Judge Wallace wonders why the Ninth is considering Ward’s beef at all, when it wasn’t raised on direct appeal. See id. When the majority counters that the government waived the waiver argument by not raising it, Judge Wallace finds it “ironic, to say the least.” Id. at *11 & n.1. Ward is a good case for trial attorneys on restitution orders, but may also be of surprising interest to habeas folks looking to level “waiver” against the government’s claim of procedural default.

How to Use: To our discredit, restitution is usually the last thing on defense counsel’s minds when representing indigent inmates facing decades of custodial time. Seems the Ninth is, of late, reminding all below that restitution matters, and sending cases back down to get it right. In just the last year, in Dann, 652 F.3d 1160 (9th Cir 2011), in Yeung, 672 F.3d 594 (9th Cir. 2012), and in Ward the Ninth has reversed restitution orders that didn’t follow the requirements of the Mandatory Victims’ Restitution Act. Read this trilogy of cases for good explanations of this developing area of Ninth Circuit law.
For Further Reading: Judge James Browning passed away last week: a tremendous loss to the Ninth Circuit, and to those who care about the defense of indigent clients. For a moving tribute to a remarkable jurist, see the musings of former law clerk Bobby Ahdieh here

How central was Judge Browning to a memorable era of American history? Literally front and center: you'll find him as a young man, front and center of this photograph of the Kennedy inauguration.

Unicor logo from

Image of (young) Judge James Browning from

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

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Thursday, May 10, 2012

GAO Shows BOP How To Save Millions By Implementing Ameliorative Sentencing Statutes

Two recent reports provide a survey of sentencing statutes that the Bureau of Prisons (BOP) underutilizes, costing taxpayers millions and contributing to America's world leadership in incarceration rates. In February, the Government Accountability Office (GAO) issued a study on the Bureau of Prisons entitled Eligibility and Capacity Impact Use of Flexibilities to Reduce Inmates’ Time in Prison. The GAO identified a number of statutes that, if used to their full extent, could save huge amounts of money. The GAO's experts provided the research and data that support federal defender concerns regarding underutilization of ameliorative sentencing statutes previously expressed to the Sentencing Commission (here) and to the House of Representatives' subcommittee on crime (here). The GAO report analyzed the facts that demonstrate the systematic failure to make full use of congressionally approved sentencing programs.

The second report is from the federal defenders in which we respond to the GAO report with observations and recommendations based on our BOP experiences: GAO Report Reveals Multiple Ways To End The Waste Of Millions On Unnecessary Overincarceration. The detailed response begins with this summary:

“The Government Accountability Office (GAO) has performed an important service in its study on the Bureau of Prisons’ ability to reduce incarceration costs. The report can be used as a starting point for identifying ways to reduce prison over-crowding, reduce the risk of future recidivism, and save millions of taxpayer dollars every year. The BOP’s under-utilization of available programs that would reduce over-incarceration and future recidivism falls into several general categories.

“First, the GAO identified three statutory programs that, if fully implemented, would save taxpayer dollars that are now being wasted on unnecessary incarceration:

*  The BOP underutilizes the residential drug abuse program (RDAP) incentive for nonviolent offenders. If inmates had received the full 12-month reduction from 2009 to 2011, the BOP would have saved up to $144 million. Much more would be saved if all statutorily eligible prisoners were allowed to participate.

*  The BOP underutilizes available community corrections so that inmates serve an average of only 4 months of the available 12 months authorized by the Second Chance Act. Just by increasing home confinement by three months, the BOP could save up to $111.4 million each year.

*  The BOP underutilizes available sentence modification authority for “extraordinary and compelling reasons” depriving sentencing judges of the opportunity to reduce over-incarceration of deserving prisoners whose continued imprisonment involves some of the highest prison costs.

“Second, the GAO confirmed that amending the good time credit statute to require that inmates serve no more than 85% of the sentence would better calibrate actual time served with the assumptions underlying the sentencing guidelines consulted at sentencing. Both the Department of Justice and the BOP favor the amendment. After the release of about 3,900 inmates in the first fiscal year, the BOP would continue to save about $40 million a year once the amendment was enacted.

“Third, the GAO identifies cost savings that the BOP could realize simply by using available rules for executing and calculating sentences. For example, the BOP unilaterally abolished the shock incarceration program, spending unnecessary millions by replacing sentence reductions and increased home detention with prison time for nonviolent offenders with minimal criminal history. The BOP also fails to treat defendants’
time in immigration custody as “official detention,” an unnecessary policy that increases custody costs by creating dead time. The BOP should act immediately to end these and other unnecessary and wasteful policies.”

The hope from the GAO report and the federal defender response is that the people administering sentences will reassess policies based on costs and benefits, rejecting reflexive biases in favor of over-incarceration. The BOP has a new director who will be making decisions in a context that accentuates the need for frugality and safety in penal spending. The recommendations for full implementation of ameliorative statutes should provide a happy marriage between fiscal prudence and avoidance of greater incarceration rates than necessary to accomplish the purposes of sentencing. And in the meantime, the GAO report and the federal defender response provide defense advocates with data and other information to support the efforts on behalf of our clients described in The Defender’s Guide To Sentencing And Habeas Advocacy Regarding Bureau Of Prisons Issues.

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

Wednesday, May 09, 2012

Ward v. Chavez, No. 09-17016 (5-8-12)(Rakoff, Sr. D.J. SDNY, with M. Smith; Wallace dissenting).
This concerns a petitioner paying for his crimes...actually paying under a restitution order.  Here, the district court ordered the defendant to make restitution "immediately" but did not consider his ability to pay during his lengthy sentence, nor set up a payment schedule.  The court left it to the BOP.  This is an improper delegation.  The petitioner, who was employed under the BOP, argued that the BOP could not just set what was fair, or what it considered fair.  This is a core judicial function.  The 9th agreed, reversed, and remanded.  The 9th followed the Gunning and Lemoine  precedents in requiring the court to set an amount after considering the ability to pay.  The 9th, furthermore, found that the petitioner did not have to exhaust administrative remedies after the first denial by the warden, because to do so would have been futile under 2241.  Dissenting, Wallace argues that the petitioner waived this argument.  The petitioner should have raised this on appeal.  Even now, the proper action would be for the petitioner to pay what he wanted, and if he failed to pay, for the government to move for sanctions.

Monday, May 07, 2012

Crosby v. Schwartz, No. 10-17726 (5-4-12) (M. Smith with McKeown; Noonan concurring and dissenting).
AEDPA deference again causes the 9th to swallow hard and affirm a denial of a petition.  The case arises from a California prosecution for failure to register as a sex offender.  The petitioner waived his right to a jury trial, and then tried to withdrawal his waiver, all for naught.  His sentence after conviction was 26 years to life.  The 9th deferred to the state courts' findings that his colloquy, although short (really short) was adequate, and that since there was no Supreme Court case on withdrawal of a waiver of a jury, the state court again was not unreasonable.  As for the 26 to life for failure to register, the 9th wrings its hands over proportionality but affirms.  Noonan, following a trend of his, wonders whether the sentence is disproportionate, given that the offense itself had only a three year max (absent the three strikes).  His dissent is worth reading, starting off with a creative  imagined conversation between two lawyers.

Nedds v. Calderon, No. 08-56520 (5-4-12) (Pregerson with Fisher and Berzon).  The district court dismissed petitioner's habeas as untimely.  The petitioner appealed, arguing that equitable tolling should apply and that his petition be considered timely.  The 9th agrees.  The petitioner relied on existing 9th Cir. precedent in delaying his federal habeas while he worked his way through the state court.  When he did file his petition, it would have been timely under precedent.  The Supremes subsequently decided that if the time it took to file a state habeas is deemed unreasonable, then the federal statute is not tolled.  Petitioner acted in conformance with the 9th's precedent, moved expeditiously when the Supremes ruled, and should be entitled to equitable tolling.  The case is remanded for a decision on the merits.

Congratulations to Michael Tanaka of the FPD Calif. Central Office (Los Angeles).

Sunday, May 06, 2012

Case o' The Week: Ninth Not Lax on Gun Stat Max - Dorsey and 924(c) Charges

Attempt to murder a witness to prevent their testimony, and you can get up to thirty years in custody. 18 USC §1512(2)(A), (3)(B)(i).

If you discharge a gun in furtherance of a violent felony, however, (and that discharge happens to intimidate a witness), what’s the stat max?


United States v. Dorsey, 2012 WL 1474689 (9th Cir. Apr. 30, 2012), decision available here.
Players: Decision by Judge Gould.

Facts: Dorsey led a car theft ring that caught the eye of the feds. Id. at *1. When Dorsey learned that a co-conspirator was scheduled to testify before the grand jury, he made statements suggesting that he was -- displeased. Id. Just before the co-conspirator’s scheduled testimony, shots fired into her apartment hit her and her older son. Id. at *2. Minutes later Dorsey called police and reported that he was far away from the shooting: he told officers that he had seen a suspect that the police were hunting. Id. at *2. Unfortunately for Dorsey, cell data revealed that at the time of the shooting Dorsey’s cell phone had accessed a tower immediately behind where the witness was shot. Id. Dorsey was charged with theft and chop-shop crimes, and a § 924(c)(1)(A) count: discharging a gun in relation to a crime of violence. Id. He pleaded guilty to everything but the § 924(c) count and went to trial on that charge. Id. at *3. Dorsey was convicted and received an eighteen-year consecutive sentence on the § 924(c) count. Id. at *4.   

Issue(s): Dorsey's final challenge is to his eighteen year sentence on Count 22. In sentencing Dorsey on this count, the district court held that the statutory sentencing range for Dorsey's 18 U.S.C. § 924(c)(1)(A)  conviction was ten years to life. Dorsey contends that the district court erred because the statutory maximum sentence under § 924(c)(1)(A) is the mandatory minimum sentence of ten years.” Id. at *9.

Held:Because Congress has made clear that § 924(c)(1)(A) offenses are to be punished severely, the rule of lenity is not properly applied here. We hold that the maximum sentence for a § 924(c)(1)(A) conviction is life imprisonment. Because the sentencing range on Dorsey's § 924(c)(1)(A) conviction was ten years to life, the district permissibly sentenced him to an eighteen year term of imprisonment on Count 22.Id. at *11-*12.

Of Note: Dorsey adds another reason to hate § 924(c) charges. You can be convicted of a § 924(c) without being convicted of the underlying count. Section 924(c)'s stack, so you can quickly be exposed to absurdly high mandatory minimum consecutive sentences with a handful of counts. Section 924(c)’s can also tie drug and gun charges together to defeat defense severance motions (when the client, for example, is charged with felon-in-possession and drugs and should otherwise get a severance). 

For an interesting piece on just how dangerous these charges are – and suggestions on how to defend against them – see AFPD John Paul Reichmuth’s great outline here.
How to Use: A life statutory maximum for a § 924(c) offense is disappointing, but isn’t terribly surprising. Three circuits have so held or have stated as dicta, as well as dicta in Supreme Court dissents. Id. at *10-*11.  

Dorsey is interesting, though, for its open embrace and (partial) reliance on dicta. As Judge Gould explains, “we think it appropriate to give some weight to the dicta of our own and other circuits suggesting that § 924(c)(1)(A) has life imprisonment as a maximum.” Id. at *11. 

This is uncommon language on dicta, and is a handy quote for future defense briefs where dicta is trending a more favorable way.  
For Further Reading: As Judge Gould correctly observes, “Technology was fatal to Dorsey’s alibi because he used a cell phone that showed his proximity to the scene of the shooting, not to where he said he was when he called.” Id. at *3.

If you haven’t yet had a case fall apart because of cell phone records, Dorsey sounds a warning bell. And, for better or worse, the Supreme Court’s Jones case did little to clarify Fourth Amendment protections for the tracking that goes on with cell phone technology. Our brainy friends at the Electronic Frontier Foundation have the web’s best collection of information on cell phone tracking: start here to learn of DOJ’s latest remarkable stance on the privacy issue.

   Image of the grand jury room from (and yes, we realize it is a California grand jury picture and that this is a federal case . . . .)
  Image of cell tower from

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


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