Sunday, September 30, 2012

Case o' The Week: Ninth a Tough Venue Venue - Lukashov, Jury Verdicts, and Venue

Professor Glanville Williams
“It used to be said that hard cases make bad law - a proposition that our less pedantic age regards as doubtful. What is certain is that cases in which the moral indignation of the judge is aroused frequently make bad law.” 

  Glanville Williams, The Sanctity of Life and the Criminal Law, 105 (1957).

  Professor Williams knew of what he spoke. United States v. Lukashov, 2012 WL 4075751 (9th Cir. Sept. 18, 2012), decision available here.

Players: Decision by Judge Gould, joined by Judges Schroeder and Alarcón.

Facts: Lukashov was a trucker. Id. at 1. At his girlfriend’s request, he took her 8-year old daughter with him on a trip from Oregon to various states, and back. Id. Lukashov sexually abused the girl during the trip. Id. He was charged with aggravated sexual abuse, travel with intent to engage in illicit sexual, and transportation with intent to engage in criminal sexual. Id. at *2. 

Over defense objection, the district court gave a venue instruction with all of the government’s venue theories. Id. The jury found Lukashov guilty of the agg sex abuse count, not guilty on the “travel” count, and could not reach a verdict on the “transportation” count. In a special verdict the jury explained that the government had not proved that the offense began and ended in Oregon. Id. at *3. 

The district court rejected defense post-trial challenges to venue, finding as a matter of law that venue had been established. Id. at *5. 

Lukashov was sentenced to 30 years. Id.

Issue(s): “[T]the unusual circumstances of this case, where the district court first gave an instruction on venue and then, after the jury's determination of guilt beyond a reasonable doubt in substance, decided the venue question of when the crime was completed as a matter of law, require us to take a fresh look at the governing principles. We have found no prior precedent holding that the evidence in a case permitted the trial court, as the district court did here, to take the venue issue from the jury and determine it as a matter of law.” Id. at *10.

Held: “[W]e formulate the following rule to be applied: Where a rational jury could not fail to conclude that a preponderance of the evidence establishes venue, then a court is justified in determining venue as a matter of law.” Id

“The district court correctly perceived that once the jury found beyond a reasonable doubt that Lukashov had sexually abused T.F. on the trip to New York and back to Portland, the government had ‘necessarily’ proved venue by a preponderance of the evidence because the offense continued into and was completed in Oregon as a matter of law. No rational jury could have failed to so conclude. We hold that venue was proper under the first paragraph of § 3237(a) . . . .” Id. at *12.

Of Note: Stand back a bit from the details of this case, and you’ll find a troubling new Ninth rule. It is undisputed that the jury must decide venue by a preponderance of evidence. Here, the jury made a special finding that venue in Oregon was not proved. Thus, the venue question wasn’t just taken from the jury by the Ninth – it was decided despite the jury. 

The Ninth’s new rule – converting this issue to a question of law for the judge – seems directly at odds with the post-Apprendi emphasis on the ascendant power of the jury. As described below, this rule should be treated as a very limited holding. (Read the oddly-detailed description of the sexual abuse at the outset of the case, and it also fair to surmise that grim facts are coloring the venue analysis).

How to Use: Lukashov does not stand for the broad proposition that criminal venue is a question of law for the judge. Instead, the case is properly read as a very limited holding on highly unusual facts. Closely read, Lukashov allows a judge to deny a post-verdict challenge when bungled jury instructions produce a venue verdict inconsistent with facts necessarily proved for the substantive offenses. We respectfully view Lukashov as already treading thin constitutional ice – expand its venue holding at all, and it crashes through.
For Further Reading: For a useful overview of the history and law of federal criminal venue, see a description written for Congress: Charles Doyle, Venue: A Legal Analysis of Where a Crime May Be Tried, available here

Image of Professor Glanville Williams from

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

Labels: ,

Sunday, September 23, 2012

Case o' The Week: Ninth Avoids Canadian Confrontation, Anekwu and Confrontation Clause

Avoid Confrontation and Canadians, advises James Howlett.

The Ninth concurs. United States v. Anekwu, 2012 WL 4125861 (9th Cir. Sept. 20, 2012), decision available here.

Players: Decision by Judge N.R. Smith. Hard-fought appeal by CD Cal AFPD Alexandra W. Yates.

Facts: Anekwu was extradited from Canada and prosecuted for fraud. Id. at *1. At trial, the government sought to introduce foreign business and public records from Canada, linked to Anekwu. Id.; see 18 USC § 3505, FRE 803, 902. The government offered no Canadian record-keepers as witnesses, instead relying on signed “certifications.” Id. at *2. The records were admitted over Anekwu’s hearsay (but not Confrontation Clause) objection, and he was convicted. Id. at *3, *4.

Issue(s): “The primary question raised on appeal is whether the district court committed plain error by admitting certificates of authentification for foreign public and business records by means of affidavit in violation of the Confrontation Clause.” Id. at *1. “Whether certifications of business records violate the Confrontation Clause is an issue of first impression for this Court.” Id. at *5.

Held:We cannot conclude that the district court plainly erred in admitting certificates of authentification for foreign public and business records into evidence." Id. at *3. “Following the reasoning of [the Tenth Circuit’s decision] in Yeley-Davis, the certificates authenticated otherwise admissible records . . . . If so, then the admission of the authenticating certificates for the mailbox applications and bank records would not have violated the Confrontation Clause. Thus, we cannot conclude that the district court plainly erred by admitting the certificates for the foreign business records.Id. at *6.

Of Note: Like Apprendi, feels like the Supreme’s great 2004 Crawford decision is suffering the death of a thousand cuts. In Anekwu, Judge N.R. Smith distinguishes the Canadian records at issue here from the Supreme Court’s Confrontation cases in Melendez-Diaz and Bullcoming. Id. at *5-*6. The result is an unfortunate one-two punch: for the first time, the Ninth holds that certifications of business records are not “testimonial” and therefore don’t trigger the Confrontation Clause bar. Id. at *5. Immediately expanding its new rule, the Court then concludes that certifications of foreign business records fall within the same reasoning and are admissible if compliant with 18 USC § 3505(a)(1). Id. at *5-*6. 

It is a disappointing decision; the Ninth seems to adopt the Tenth Circuit’s reasoning (Yeley-Davis) without really wrestling with testimonial aspects of this type of evidence. While Anekwu is another unfortunate chink in our Confrontation Clause armor, remember that the Supreme Court has not yet spoken on this unsettled area of law: preserve objections.

How to Use: Raise a Confrontation Clause objection at trial, get de novo review. Id. at *3. Raise only a hearsay objection at trial, and you’ll be saddled with the nearly-insurmountable bar of plain error in the Ninth when making your constitutional argument. Id. In this case, “Anekwu failed to object to the admission of the foreign records under the Confrontation Clause. Rather, Anekwu objected to the admission of the foreign records on hearsay grounds.” Id. The result? “[P]lain error review of Anekwu’s Confrontation Clause claim is appropriate.” Id. at *3.  

Anekwu again illustrates that handy mantra: constitutionalize claimsIf you utter the words, “hearsay” in a trial objection, always throw in “and violates the defendant’s Sixth Amendment Confrontation Clause rights.” That little addition can make all the difference on appellate review.
For Further Reading: Lurking in the shadows is a huge evidentiary issue potentially impacted by Anekwu: the “testimonial” nature of digital evidence. For an interesting piece on this issue, see Deborah L. Meyer, Melendez-Diaz v. Massachusetts: What the Expanded Confrontation Clause Ruling Means for Computer Forensics and Electronic Discovery, 28 Temp. J. Sci. Tech. & Envtl. L 243 (2009).

Image of Wolverine from

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


Labels: , , ,

Thursday, September 20, 2012

U.S. v. Anekwu, No. 10-50328 (09-20-12) (N. Smith with Nelson and O'Scannlain).
This is an interesting Confrontation Clause decision.  In it, the 9th held that it was not plain error for the court to admit certifications of authenticity for foreign public and business records by affidavit and that it was not a confrontation clause violation.  The defendant here was charged with running a fraud scheme that preyed upon the elderly.  The victim would be informed he or she had won a lottery in Canada and needed to only send in some tax funds to receive it.  The business was located in Canada.  At trial, the government introduced certificates of authenticity by Canadian officials for mailboxes and custodians for bank records.  The defendant objected in limine and at trial based upon reliability.  The defendant was convicted of 16 counts of mail fraud. The 9th construed the objection as only being for hearsay and not confrontation, and so it was plain error review.  Under this standard, the 9th noted that the Supreme Court had not directly dealt with this issue.  There was language in Melendez that indicated officials preparing authenticity certificates might not be preparing documents or materials for litigation.  This differed from certificates that attested to the results of tests run expressly for litigation.  The 9th had so held in U.S. v. Weiland, 420 F.3d 1062 (9th Cir. 2005), which found that domestic public records are not testimonial.  The reasoning applied here, and was not abrogated by Melendez or Bullcoming.  Under plain error review, the 9th found no confrontation violation as the records were public or business, and the certification only went to whether they were what they were.  The 9th also dealt with a variety of other evidentiary and constitutional issues, under plain error, that went to jury void dire and the defendant's Nigerian background, chart summaries, argument, and jury instructions.

Tuesday, September 18, 2012

U.S. v. Lukashov, No. 10-30348 (09-18-12) (Gould with Schroeder and Alarcon).
The 9th affirms the conviction of the defendant for aggravated sexual abuse.  He was a long-distance truck driver, and on one of his multi-state hauls, he took the young child of his girlfriend.  The child claimed she was sexually abused during the trip.  The defendant objected to the use of child abuse expert, objected to venue, argued for insufficiency of evidence and argued that the court should let him put in 404(b) evidence that the girlfriend had made false accusations in the past (the court had allowed in opinion or reputation evidence on her truthfulness).  The jury convicted on one count of aggravated sex abuse, but returned a verdict that acts did not take place in the district (Oregon) but that transportation occurred from and across Oregon.  On appeal, the 9th found no error with the evidentiary issues, and found there was sufficient evidence.  The venue issue, though, caused the 9th pause.  The opinion goes on at great length about the need to find venue by a preponderance of evidence (not beyond a reasonable doubt) and that the sufficiency of evidence was a question of law.  Given the jury's verdict here, the 9th fashioned the following rule:  "Where a rational jury could not fail to conclude that a preponderance of the evidence establishes venue, then a court is justified in determining venue as a matter of law."  The court here was justified in so finding.

Rogovich v. Ryan, No. 08-99015 (09-18-12) (Schroeder with O'Scannlain and Graber)
(Note:  This is an Az FPD case)
The 9th affirms the denial of a capital habeas.  Under AEDPA deference, the 9th concluded that there was not IAC in trial counsel not attacking an aggravator for multiple victims, and that appellate counsel was not ineffective.  At trial, defense counsel had raised an insanity defense.  On that issue, in habeas, petitioner argued that his consent to such a defense should have been placed on the record.  On this issue, the 9th concluded that there was no clearly established federal law that required such consent by the defendant.

Monday, September 17, 2012

U.S. v. Mattix, No. 12-30012 (09-17-12) (Per curiam with B. Fletcher, Pregerson and Marshall, Sr.DJ Calif Central).
Exactly when did SORNA become retroactive?  In U.S. v. Valverde, 628 F.3d 1159 (9th Cir, 2010), the 9th joined the 6th Circuit in holding that AG's interim rule failed to comply with the APA and thus failed to make SORNA retroactive.  That panel then went on to state that SORNA became retroactive on August 1, 2008, under the SMART Guidelines implementing SORNA.  The defendant here, charged with violating SORNA, argues that the August 1st retroactive date was dicta, and that the 9th only had to find that APA was violated.  This panel reaffirms Valverde, and the date of August 1st.  It states that the Valverde panel faced the issue head on, selected the date, and made it clear.  The panel states that Valverde is binding.

Sunday, September 16, 2012

Case o' The Week: Ninth Skeptical of Alien Encounter - Leal-Del Carmen, Mat Wits, and Discovery

"The most famous definition of 'chutzpah' is, of course, itself law-themed: chutzpah is when a man kills both his parents and begs the court for mercy because he’s an orphan.

  But there’s another legal chutzpah story. A man goes to a lawyer and asks: 'How much do you charge for legal advice?'

  'A thousand dollars for three questions.'

 'Wow! Isn’t that kind of expensive?'

 'Yes, it is. What’s your third question?'


        Chief Judge Alex Kozinski and Eugene Volokh, Lawsuit, Shmawsuit, 103 Yale Law Journal 463 (1993), available here.  

   The federal government of the United States has thoughtfully provided these authors with a third example of this useful term. United States v. Leal-Del Carmen, 2012 WL 4040253 (9th Cir. Set. 14, 2012), decision available here.

Players: Decision by CJ Kozinski, joined by Judges Reinhardt and W. Fletcher. Big victory for San Diego Ass’t Defender Harini Raghupathi.  

Facts: Leal-Del Carmen was one of twelve undocumented aliens found hiding near the border. Id. at *1. (At least) four aliens were interviewed; three identified Leal-Del Carmen as the smuggler. Id. The fourth alien told agents – three times – that Leal Del-Carmen had not given orders to the group. Id. Before Leal Del-Carmen was appointed counsel this exonerating witness was deported. The three inculpatory alien witnesses were kept in the U.S.. Id. 

The district court refused to dismiss the indictment, refused to admit the video of the exculpatory witness’s statement, and refused to give a missing witness instruction. Id. 

Leal-Del Carmen was charged with alien smuggling, and the jury deliberated over two days before delivering a split verdict. Id. at *2.    

Issue(s): “May the government deport an illegal alien who can provide exculpatory evidence for a criminal defendant before counsel for that defendant has ever been appointed? We believe the answer is self-evident, as the government recognized in an earlier case where it moved to vacate a conviction after it deported witnesses whose testimony would have exculpated defendant.” Id. at *1.

Held: “The government’s wrongful deportation of a witness with exculpatory evidence, coupled with the district court’s evidentiary errors, deprived Leal Del-Carmen of a fair trial and his constitutional right to present a defense. This right includes, at a minimum, the right to put before a jury evidence that might influence the determination of guilt. Because we’ve found a violation of the right to present a defense, we must reverse the guilty verdict unless the government convinces us the error was harmless beyond a reasonable doubt. We’re not convinced.” Id. at *8 (internal citation and quotations omitted).

Of Note: The Chief’s palpable frustration stems from settled law on the removal of exculpatory material witnesses. Id. at *1. So sharp is this frustration that Chief Judge Kozinski characterizes a government argument as “close to the classic definition of chutzpah.” Id. at *7.

Beyond the sheer enjoyment of a good Kozinski opinion, however, the case is worth a close read for important holdings on discovery. That great 2010 Stever opinion figures prominently in the CJ’s analysis -- Leal-Del Carmen joins Stever in the Ninth’s line of admirable law on the Sixth Amendment right to present a defense. See generally here.

How to Use: Do you think it odd that the border agents interviewed only four of these alien witnesses – but (allegedly) not the eight others in the group? The Ninth does too. Id. at *1 n.3 (“We find it suspicious that the government would interview some of the witnesses but not the others.”) 

Happily, the government is now ordered to give all statements of all witnesses, or sworn declarations from the agents explaining what really happened, and declarations describing what interview notes or recordings have been discarded or destroyed. Id. The orders of footnote three are a welcome template for attacks on cherry-picked interviews -- a template that would convert nicely to a proposed order in district court.  
For Further Reading: The progressive Fourth Circuit (?!?) is ahead of the Ninth in the correct interpretation of the important “acceptance of responsibility” guideline, USSG § 3E1.1. The Ninth has unfortunately held that the government can withhold the third point (designed to protect trial resources) if a defendant pleads guilty and preserves an appeal

We’re on the wrong side of a 2-1 circuit split, but three jurists have just invited a petition for rehearing en banc. United States v. Vanegas-Ortiz No. 12-10135 (9th Cir. Sept. 7, 2012) (mem.), available here

OBJECT when a client pleads to preserve an appeal and is denied a reduction of the third offense level for acceptance. For a history of this issue in the Ninth, see collection of blogs here

Poster of Churchill from

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


Labels: , , , , ,