Thursday, January 31, 2013

U.S. v. Doe, No. 11-10067 (1-31-13)(Smith (DJ DRI) with Fernandez and Berzon)
This is an interesting opinion, explaining Dixon v. U.S., 548 US 1 (2006) which concerns the burden of proof in an affirmative defense case, and extending it to the public authority defense, and by inference to other affirmative defenses. The 9th upholds the district court's denial of the defense argument that the government, not the defendant, bears the burden of proof beyond a reasonable doubt. The 9th, however, vacates the conviction and remands to see if discovery requests, focused on FBI meetings with the defendant concerning drug cases, yielded any information. The district court had denied the request as "over-broad," which it was not, given the proffered defense. If the error is deemed harmless, then the conviction is reinstated. The remand also covers whether any information would be Brady.  Finally, regarding sentencing, the 9th vacates and remands for a slew of procedural errors: miscalculation of the guidelines, failure to rule on objections, and not giving the parties an opportunity to advocate for a sentence. The court's error was plain.

Returning to the affirmative defense, the 9th explains that Dixon relates to whether an affirmative defense negates an element of the offense, or whether the defendant committed the offense knowingly, but has an explanation.  In Dixon, the defense was duress over the purchase of a firearm. Here, with a public authority defense, the defendant argued that he acted to set up a drug sale so he could act as an informant. He did so because he believed the government (FBI) wanted him too. He was apparently wrong. At trial, he argued the gov't bore the burden. The 9th held he did. His actions were knowingly, and he knew he was committing an offense, although he believed he had reasons. The 9th explains the cases at length and provides a good overview. This case is the starting point for further affirmative defense analyses.

Congratulations to AFPD Carolyn Wiggin, FPD ED Calif (Sacramento).
U.S. v. Jesus-Casteneda, No. 11-10397 (1-30-13)(Bea with Wallace and Restani)
The drama that is trial is driven home when a witness appears in disguise. Does it violate the Confrontation Clause? The 9th holds that it does not, affirming a drug conviction. The witness in this case was a CI. Deep undercover in the Sinaloa Cartel, he testified as to defendant's actions wearing a wig and a fake mustache. He did so because the government stated that he was at risk. The defense objected, arguing that the court could be sealed, and the witness protected by other means. The district court said this was not a "close question." The 9th pondered the disguise, and the need under the Confrontation Clause to assess credibility. The 9th concluded that confrontation was not violated because (1) the gov't showed that it had a state interest (safety); and (2) the witness was (a) physically present; (b) under oath; (c) cross examined; and (4) the jury could hear his voice, see his eyes, and observe his body and partial face. The 9th acknowledged that there might be a due process violation given the impression conveyed that the defendant was dangerous. The 9th sidestepped ruling on due process issue because, even if there was error, it was harmless beyond a reasonable doubt.

Saturday, January 26, 2013

Case o' The Week: Crazy Talk (or Silence?) - Dreyer, Competency, and Allocution at Sentencing

 “In attempting to comply with this misguided decision, district courts are left to navigate the shoals of Scylla and Charybdis.” United States v. Dreyer, 2013 65430 (9th Cir. Jan. 7, 2013) (ord. denying rh’g en banc) (Tallman, J., dissenting), order and superseding opinion available here.

Or, to put it differently, the Ninth’s new competency case presents opportunities for the defense.

Players: Dissent from order denying rehearing en banc by Judge Tallman, joined by CJ Kozinski and Judges O’Scannlain, Bybee, Callahan, Bea, Ikuta, and N.R. Smith.
Facts: Defendant Joel Dreyer suffered from diagnosed mental illnesses. Id. at *5 (superseding opinion). Because of the effect of this dementia on his behavior, Dreyer did not allocate at sentencing. Id. Without a competency hearing at sentencing, the district court proceeded – and the defense did not object. Id. 

In an opinion issued August 21, 2012, Judge Reinhardt wrote that the failure to order a competency hearing sua sponte was plain error. 693 F.3d 803, 813. Judge Wardlaw joined Judge Reinhardt, and Judge Callahan dissented. A Ninth Circuit judge sought rehearing en banc. 2013 WL 65430, *1 (ord).

Issue(s): Rehearing en banc?

Held: “The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration.” Id. at *1.

Of Note: In August, we touted Dreyer and commended as a must-read for anyone representing mentally ill clients. See blog post here

The Dissenting Eight from the order denying rehearing agree with us (or at least, agree that Dreyer is a seminal decision). In his dissent from the order denying rehearing en banc, Judge Tallman complains that the opinion “adds to the existing standard of legal competence by requiring that the defendant be able to speak persuasively on his own behalf at sentencing.” Id. at *4. He explains that a district court “may rationally conclude that it must sua sponte order a hearing when any number of impairments are identified.” Id. at *4. Judge Tallman worries that the case will “wreak havoc on sentencing proceedings.” Id. at *1. In other words, defense opportunities await.

How to Use: Dreyer requires some thought. There are times where the greatest service an attorney can render his or her client is to convince them to stay mum at sentencing – indeed, that may have been the case in Dreyer. If a client has a diagnosed mental illness, that strategy of silence may prompt a district judge into ordering a sua sponte competency evaluation (often by a hostile BOP shrink fond of “anti-social personality disorder” diagnoses). 

Remember that a defendant has the Fifth Amendment right to remain silent at sentencing, and can’t be punished for asserting that right. Mitchell v. United States, 526 U.S. 314, 330 (1999) (“By holding petitioner's silence against her in determining the facts of the offense at the sentencing hearing, the District Court imposed an impermissible burden on the exercise of the constitutional right against compelled self-incrimination.”) Dreyer is certainly a defense win and is intended to protect the mentally ill, but will it occasionally run afoul of Mitchell by forcing our lovable loony clients to choose between a disastrous sentencing allocution or being forced to speak to a BOP shrink? Interesting litigation in our future.
For Further Reading: What is the base offense level in the Sentencing Guidelines for unlawfully hacking a government web page?

 Don’t bother looking for the answer on the Sentencing Commission’s web page – it was just hacked by Anonymous and then taken down by the Feds. See CNET article here.  

Fresco of the shoals of Scylla and Charybdis from
Screenshot of the hacked USSG web page from


Steven Kalar, Federal Defender N.D. Cal FPD. Website at


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Friday, January 25, 2013

U.S. v. Vidal-Mendoza, No. 11-30127 (01-15-13) (Ikuta with Tashima and Tallman)
A change in law does not help this 1326 defendant.  The defendant's 1326 charge was dismissed because the district court found that in the immigration proceeding the Immigratoin Judge erroneously informed the defendant that his Oregon stat rape conviction was an aggravated felony and barred him from relief.  The law subsequently held that the stat rape was not an aggravated felony.  The 9th reversed the district court.  The IJ had a responsibility to inform the defendant, at the time, if he had a basis for relief.  However, at that time, the defendant did not.  The IJ could not be expected to look ahead; the IJ informed the defendant of the lay of the land as it was.  That comports with due process.

U.S. v. Gallegos-Galindo, No. 12-10000 (01-17-13) (Sack with Gould and M. Smith)
In a 1326 sentencing appeal, the defendant argued that a Washington state third-degree rape conviction was not a crime of violence, warranting a +16 level enhancement.  He argued that the conviction was not a forcible sex offense under 2L1.2.  The Guidelines were amended in 2008 to include as forcible sex any sex act involving absence of the victim's consent.  Under a modified categorical approach, this offense was a forcible act, because the factual basis of the plea stated it was without the consent of the victim.  The 9th does not reach out to say whether the state offense is a categorical crime of violence, because it did not need to.

U.S. v. Zepeda, No. 10-10131 (01-18-13) (Paez with Fernandez; dissent by Watford)
This is a Indian jurisdiction case, and specifically the requirement that the government prove that the defendant is an Indian for Major Crimes Act jurisdiction.  In this case, the government and the defendant stipulated to the introduction of the Certificate of Enrollment of the defendant in an Indian tribe.  However, the government introduced NO EVIDENCE that the tribe is federally recognized.  As such, a jury could not find that the defendant had the bloodline back to a federally recognized tribe.  The 9th also held this is a question of fact, not law, and the court could no so decide.  Finally, the court could not take judicial notice.  In dissent, Watford argues that as a matter of law, the tribes to which the defendant was enrolled were federally recognized.  Any error was harmless.

This is a significant case when it comes to "Indian status" as the 9th requires the tie to federal recognzied tribes, and that it is a question for the jury.

Hurles v. Ryan, No. 08-99032 (01-18-13) (Nelson with Pregerson; dissent by Ikuta)
The 9th remanded on the issue of judicial bias in the state trial court.  The state trial court had denied a recusal motion, and then filed a brief in the interlocutory appeal defending her position and commenting on the evidence.  The trial judge then went on to preside over the capital trial that imposed death.  An evidentiary hearing is warranted to develop the record on this issue.  The dissent by Ikuta looks to AEDPA and argues that the decisions by the state courts were not contrary to federal law.  The 9th affirmed the denial of the numerous IAC claims related to trial and sentencing.

Thompson v. Runnels, No. 08-16186 (01-24-13) (Ikuta; concurrence by Goodwin; dissent by Berzon)
Petitioner argues that his confession regarding the murder of his girlfriend should be suppressed under Missouri v. Siebert, 542 US 60 (2004).  No, holds the 9th, because the state of the law at the time the state court decided the case was Oregon v. Elstad, 470 US 298 (1985).  The 9th takes a step back from the Siebert two-step, and pivots to look backwards at the reasonableness of the decision under the law at the time under AEDPA.  The opinion finds it was reasonable.  Dissenting, Berzon argues that the petitioner should be allowed to raise issues, that the application of Miranda in this instance was an open question, and that the Supreme Court had evolved its Miranda jurisprudence and so not applying Siebert was a violation of established law. Goodwin, concurring, recognizes the confusion, and commends both the opinion and dissent.  A strict adherence to AEDPA has him siding with the affirmance of the denial of the petition.

Monday, January 21, 2013

Case o' The Week: Not an "Offense" to Violate Supervised Release in the Ninth - Jensen and Sec. 3146

The Hon. Susan Graber

If your client violates supervised release, is given prison time, and fails to surrender to serve the sentence imposed for the violation of supervised release, for what “offense” has he failed to appear?

(Careful - trick question). 

United States v. Jensen, 2013 WL 174387 (9th Cir. Jan. 14, 2013), decision available here.

Players: Decision by Judge Graber (above left), joined by Judges Wallace and Berzon. Hard-fought appeal by D. Nev. AFPD Brenda Weksler.

Facts: Jensen was convicted of unlawful possession of a mail key in violation of 18 USC § 1704. Id. at *1. He was sentenced to three years of supervised release following a custodial term. Id.

Soon after his release from prison Jensen violated supervised release. The district court revoked and sentenced him to 14 months in custody. Id. Jensen was ordered to self-surrender.

He didn’t.

Jensen was caught and pleaded guilty to failure to appear in violation of 18 USC § 3146. Id. The failure-to-appear statute, § 3146(b), has no fixed stat max: the maximum sentence is tied to the “offense” for which the defendant didn’t appear. Id. at *2. Jensen argued that the stat max was for the supervised release violation “offense” (with a two-year stat max). Id. The district court disagreed, and held the “offense” was the mail theft crime, which (under § 3146(b)) produces a stat max of five years for failure-to-surrender. Id. at *1. Jensen was sentenced to 27 months for the § 3146, failure-to-surrender crime. Id. at *1.

Issue(s): “The dispute in this case is which ‘offense’ is relevant: Defendant’s criminal offense or his violation of supervised release. If the mail-key offense is the measuring stick for purposes of § 3146(b)(1)(A), then subsection (ii) applies, and the statutory maximum for failure to appear is five years. By contrast, if his violation of supervised release is the relevant underlying offense for purposes of § 3146(b)(1)(A), then subsection (iii) applies, and the statutory maximum for failure to appear is two years.” Id. at *2.   

Held: “We have no trouble concluding that Defendant’s release was ‘in connection with’ the original criminal charge. Id. at *3. . . . We agree with the First, Sixth, and Seventh Circuits that the text clearly answers the interpretation question presented . . . . Nothing in the text of § 3146(b) or elsewhere suggests that Congress clearly intended that a violation of supervised release constitutes an ‘offense’ for purposes of § 3146; indeed, Congress used words that foreclose that possibility.” Id. at *4.

Of Note: 18 USC § 3146 is a weird statute. The way it is written, the statutory maximum of the underlying offense is a fact that increases the statutory maximum of the Section 3146 (failure to appear) crime. 

Facts necessary to increase a statutory maximum? That’s Apprendiville –indeed, the Ninth has held that it is Apprendi error when the government fails to prove that the defendant failed to surrender on a felony, rather than a misdemeanor. United States v. Locklin, 530 F.3d 908, 912 (9th Cir. 2008). 

Given Judge Graber’s new rule in Jensen, mustn’t the government allege and prove the specific type of offense that gives rise to the failure-to-appear beef? Or, at minimum, plead and prove the statutory maximum of that underlying offense? See 18 USC § 3145(b)(1)(A)(i)-(iv)? Apprendi mischief to be made, thanks to the new Jensen rule.

How to Use: Remember Jensen when advising clients who are permitted to self-surrender to on violations. Of course, it is always prudent to surrender when ordered to do so -- but beware Jensen significantly raises the stat-max stakes when a self-surrendering defendant loses his way to the clink.                                                   

For Further Reading: “The case of Alleyne v. United States . . . is a potentially historic dispute over the modern phenomenon of “mandatory minimum” sentences, and the roles of judges and juries in imposing such sentences.” So says SCOTUS blog contributor Lyle Denniston, For his thoughtful summary of the recent sharp argument on this (potentially) seminal case, visit his article here (“It … appeared that there was a fairly solid nucleus of Justices willing at least to seriously re-think the Harris precedent.) 

Ima ge of  the Honorable Susan P. Graber from

Steven Kalar, Federal Public Defender N.D. Cal. FPD. Website at


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Tuesday, January 15, 2013

U.S. v. Hardeman, No. 11-10540 (01-14-13) (Graber with Alarcon and Berzon)
Defendant was a convicted California sex offender. This is NOT a SORNA case, but rather whether enhancing a sentence if the defendant commits certain sex crimes against a minor while under a state duty to register as a sex offender is an ex post facto violation.  The district court held it was.  The 9th reversed.  The 9th held the enhanced sentence was akin to a recidivist statute, and went to a defendant's status and obligations when he commits a present offense.

U.S. v. Jensen, No. 11-10472 (01-14-13) (Graber with Wallace and Berzon)
Defendant was revoked from SR and ordered to surrender.  He did not.  Subsequently, he was charged with failure to surrender.  The maximum sentence for the violation varies depending on the length of the underlying offense.  Here, was it the original sentence that lead to SR (theft of mail key) which was 10 years or the SR violation (two years).  No surprise: the 9th went with the underlying offense, which is what sister circuits also did.

Monday, January 14, 2013

U.S. v. Juan, No. 11-10539 (01-07-13) (M. Smith with Sack and Gould)
Note: This is an Ariz FPD case
This case deals with whether the government can bully its own witness into recanting testimony by threatening perjury.  The 9th holds that there is a due process concern, but no evidence exists here that the witness was told of the threats and so the conviction is affirmed.  The victim and spouse in this domestic assault case testified in the prosecutor's case that her injuries were indeed accidental.  She accidentally fell in avoiding defendant's vehicle.  The prosecutor asked for a break, and a lengthy discussion ensued, with the threats of perjury against the witness being raised.  The court appointed counsel for the witness.  The next day, the witness changed her story, and said that she was indeed assaulted by being run over.  The jury convicted.  The 9th stated that the prosecutor could not bully or threaten a defense witness with perjury in an attempt to drive the witness from the stand.  See Webb v. Texas, 409 U.S. 95 (1972).  This due process concern has been raised in regard to defense witnesses.  It also applies to prosecutor witnesses, because it distorts the truth seeking process and limits the right to present a defense.  Although the 9th concludes Webb applies to all witnesses, there must be a tie with causation.  The witness must know of the threat.  Here, though, there was no evidence of the witness being informed of the threat.

Cunningham v. Wong, No. 09-99008 (01-08-13) (Tallman with Gould; partial dissent by Pregerson)
The 9th affirms a denial of a capital habeas.  The 9th found that the prosecutor did not engage in misconduct and that the defense had been given the salient facts of Brady material.  There was not IAC in trial nor sentencing.  There was no Miranda violation because the statement was not actually a confession.  Pregerson, dissenting, argues that IAC occurred at sentencing in the failure to call an expert to tie a nexus between the petitioner's horrific childhood abuse, his inability to conform his behavior to social norms, and the present felony murder crime.

U.S. v. Olsen, No. 10-36063 (01-08-13) (Friedman with Schroeder and Gould)
He was a mad scientist.  The government forensic scientist, that is, and he was fired soon after the conviction. The internal investigation was ongoing during the trial.  Did it matter in this prosecution for ricin?  No, because this information was not material to Brady.  The evidence was overwhelming the petitioner intended to use ricin as a weapon, and he did contest that he produced and possessed ricin.

U.S. v. J.J., No. 12-30206 (01-09-13) (Gould, M. Smith, and Duffy, DJ SDNY)
A juvenile's mind is developing, still forming, different from an adult's.  This difference is recognized in capital jurisprudence, in life sentences, and of course in juvenile proceedings.  So, in transferring a juvenile to adult status, would a psychological evaluation be a prerequisite to approving a transfer motion?  "No," holds the 9th, joining other circuits in saying that a court has broad discretion.  Here, facing a second degree murder and firearm charge, the 17 year old opposed the compulsion of a psychological exam.  The court did not compel the exam, and went on to consider testimony of lay witnesses, notably police, pretrial and probation officers, who all thought the juvenile was mature and appropriate and understood what was occurring.  The court also took testimony from BOP on programs available.  These witnesses provided enough information for the court to to make a decision about intellectual development.  Moreover, 5032 of the Juvenile Act does not require a psychological test.  The Act focuses on the age, the type of offense, and the "interests of justice," which requires factors such as social and background circumstances, psychological maturity and intellectual development, adjustment to programs and so forth.  As the 9th stressed, it falls within the discretion of the court.

Babb v. Lozowsky, No. 11-16784 (01-11-13) (Murguia with Tashima and Clifton)
The 9th reversed a granting of a Nevada habeas petition.  The 9th found that the state court unreasonably interpreted federal law in not applying a narrowing definition of first degree murder, but held the error was harmless because the jury in all likelihood convicted on a valid felony murder charge.

Sunday, January 13, 2013

Case o' The Week: He Lost, We Juan -- Juan, Due Process, and Perjury Threats

When disgruntled AUSAs threatens defense witnesses with perjury, it is a due process violation. 

But when AUSAs threatens their own witnesses with perjury -- to make testimony fit the government's story -- it is just effective “witness preparation,” right?

Wrong, wrong, most happily, wrong. United States v. Jarvis Martin Juan, 2013 WL 57894 (9th Cir. Jan. 7, 2013), decision available here.

Players: Important Defense (though not defendant) win for D. Az. AFPD Dan Kaplan. Decision by Judge M. Smith, in an important opinion that provides two new and welcome rules of first impression.

Facts: Juan and his wife celebrated her birthday on an Indian reservation, with malt liquor, whiskey, and cocaine. Id. at *1. When the celebration soured Juan punched his wife, kicked her, and ran over her with an SUV. Id. Juan was charged federally with assault offenses. Id. 

At trial, the wife was called by the government, refused to cooperate, and her testimony was compelled. Id. She then testified and exonerated Juan. Id. In an extended sidebar where the wife was not present, the AUSA mused of perjury charges for the wife and suggested that she be appointed counsel. Id. 

The district court appointed counsel who consulted with the wife – the next day, she returned to trial, inculpated Juan, and he was convicted. Id. at *2. 

(Note: the Supremes have prohibited the government from substantially interfering with the testimony of a defense witness. Id. (citing Webb v. Texas, 409 U.S. 95 (1972)).
Hon. Milan Smith

Issue(s): “[W]hether the government’s substantial interference with the testimony of its own witness can ever violate a defendant’s due-process rights. To our knowledge, no court applying Webb has ever extended its principles to prosecution witnesses. Similarly, no court applying Webb has ever extended it to situations, like this one, where the allegedly threatened witness continued to testify after the alleged threat. Instead, the prototypical Webb challenge involves conduct so threatening as to effectively drive [the] witness off the stand . . . . Despite this dearth of precedent, Juan persuasively argues that Webb and its progeny should apply to all witnesses.” Id. at *3 (emphasis in original) (citations omitted).

Held: “Regardless of whose witness is interfered with, the constitutional harm to the defendant is the same – the inability to mount a fair and complete defense. We see no reason to doubt that the government’s substantial interference with the testimony of its own witnesses can violate the Due Process Clause. It also seems clear that the substantial and wrongful interference with a prosecution or defense witness that does not ‘drive the witness off the stand’ but instead leads the witness to materially change his or her prior trial testimony can, in certain circumstances, violate due process.” Id. at *3.

Of Note: Juan, sadly, didn’t win because he couldn’t show that the perjury threat was actually conveyed to the witness-wife. Id. (Though it is safe to assume that any competent attorney appointed to the wife would have immediately spoken with the AUSA, and – persuasively – conveyed all “dangers” (i.e. perjury threats) to the client as she evaluated her testimony). 

Nonetheless, Juan’s loss is still two big wins for the Defense. Here’s two great new rules from this important opinion:

1. It violates due process for the government to threaten its own witnesses to get the testimony it wants, and

2. The government can trigger this violation even if the witness ultimately testifies.

How to Use: Can the government hide its threats to witnesses by conveying them through the witnesses’ counsel? Safe bet that’s what happened here – anyone who has represented a snitch has had (and conveyed) that “cautionary” chat with a “concerned” AUSA. Is that little talk Giglio impeachment information that must be disclosed by the AUSA, trumping any attorney-client privilege for the witness? Juan invites discovery litigation for counsel confronted with a witness whose testimony has – “evolved” – after counsel was appointed.                       

For Further Reading: The Sixth Amendment requires that any fact that triggers a mandatory-minimum sentence must be alleged in an indictment and proved beyond a reasonable doubt to a jury. 

So say we – will the Supremes agree? For a thoughtful preview of January 14th’s Alleyne argument, see SCOTUS blog here

 Preserve the issue! We’re just one vote shy of kissing Harris goodbye.

“Perjury” highlight image from Image of the Honorable Judge Milan Smith from

Steven Kalar, Federal Public Defender N.D. Cal. FPD. Website at


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