Saturday, February 23, 2013

Case o' The Week: Noonan's Not ImPreston - Preston and Coerced Confessions

Does law enforcement like the new Preston decision, tolerating a confession obtained from a retarded 18-year old, with no Miranda warnings? 

  Hard to say (though a business that teaches cops to interrogate includes the order denying suppression on their webpage).
  United States v. Preston, 2013 WL 431951 (9th Cir. Feb. 5, 2013), decision available here.

The Honorable John T. Noonan
Players: Decision by Sr. Judge Farris, joined by Judge Bybee. Compelling dissent by Judge Noonan.

Facts: An eight year old boy entered the home of his neighbor and relative, 18-year old Preston. Id. at *1. Preston is mildly mentally retarded, with an IQ of 65. Id. at *6. The government’s account is that Preston put on a condom, had anal intercourse with the boy, and ejaculated. Id. The boy, crying, reported this to relatives and was taken to the hospital. Id.  

Although the boy complained of pain, a forensic exam revealed no physical evidence of a sexual assault. Id. at *2. “The government does not argue that there exists DNA evidence of sexual contact between the child and Preston.” Id. at *15 (Noonan, J., dissenting). 

The boy told a forensic examiner a convoluted story of clearly-fabricated events that were intertwined with the assault, involving monster trucks and throwing knives. Id. at *1. 

Agents later approached Preston at his home and interviewed him for forty minutes, without Miranda warnings. Id. at *2, *6. The agents lied, falsely assured Preston the interview was confidential, repeatedly mixed-up the actual date of the alleged assault, pressed him with rounds of leading questions, wrote out his statement, and ultimately got him to sign a confession. Id. at *2-*3. While being interrogated Preston explained that he had short-term memory loss, a tumor in his head, and had been kicked out of school because of his behavior. Id. at *3. When an agent asked if he was “disabled,” Preston didn’t know what the word meant. Id

The case was tried in a bench trial, the confession was admitted over defense objection, and Preston was convicted of aggravated sexual assault. Id. at *6.

Issue(s): “Preston . . . argues that his confession was involuntary and thus improperly admitted at trial.” Id. at *1. “Preston contends that a finding of involuntariness is irrefutable in light of his characteristics, specifically his diminished mental capacity.” Id. at *6 (internal quotations omitted).

Held: “The personal characteristics of the defendant are constitutionally irrelevant absent proof of coercion . . . . Preston's diminished mental capacity does not so heavily influence the totality of circumstances test that a finding of involuntariness is appropriate.” Id. (internal quotations and citation omitted).

Of Note: Judge Noonan forcefully and persuasively takes the majority to task for upholding a conviction based solely on the “coerced” and “involuntary” confession of a retarded 18-year old. Id. at *15 (Noonan, J, dissenting). Of particular concern is the majority’s apparent new rule that the coercion of a mentally-impaired person depends on the length of the interrogation. Id. at *17.

Preston deserves a second look by the en banc court – both for its tolerance of a most-troubling conviction, and for its new reading of the coercion inquiry that is “unsubstantiated” by case law. Id. at *17.

How to Use: As unwelcome as the primary holdings are in Preston, the opinion does offer useful discussions of supervised release. The Court reverses and remands because of conditions imposed on the lifetime term of supervised release. Id. at *13-*14. If you’re fighting a penile plethsymograph condition, a prohibition of “sexually orientated” materials, or a prohibition of being in “the company” of another (here children, but same rationale applies to gangs), read Preston – yet another Ninth case questioning Probation’s fixation on impossible or unfair conditions of supervision.
For Further Reading: Have a sex case? Grab this great primer: “The Fine Print and Convicted Sex Offenders: Strategies for Avoiding Restrictive Conditions of Supervised Release,” by R&W Attorney Jennifer Gilg, available here.

Image of the Honorable Judge John T. Noonan from

Steven Kalar, Federal Public Defender Northern District of California. Refreshed web page available at


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Sunday, February 17, 2013

Case o' The Week: Two Sizes Too Small -- May, Relevant Conduct, and "Foreseeable Pecuniary Harm"

All the Whos in Whoville forgave the Grinch for stealing their Christmas presents, and celebrated the season with a feast of Roast Beast in a rosy glow of forgiveness and reconciliation.

Fortunately for the Grinch, Whoville lies outside of the jurisdiction of the United States Sentencing Commission. United States v. May, 2013 WL 503338 (9th Cir. Feb. 12, 2013), decision available here.

Players: Decision by visiting DJ Quist, joined by Judges Fletcher and Fisher. Hard fought appeal by W.D. Wa. AFPD Linda Sullivan and Research & Writing Attorney Alan Zarky.

Facts: Jason and Jolynn May pled guilty to receipt of stolen mail, and to stealing mail on December 24. Id. at *1 (emphasis added). At least four times in December, the couple had stolen mail packages from Vancouver homes. Id. They were arrested on Christmas Eve with stolen mail in their car and apartment. Id. 

Beginning on the 20th, the local Post Office changed its delivery policy to require signatures for delivery, or customer pick-up at the post office. Id. This policy remained in effect until December 24. 

At sentencing, the district court increased the guideline range by eight offense levels, for loss of roughly $68,000 in post office expenses associated with the new delivery policy. Id. at *2. [There was only $2,104 in customer mail loss]. Id..

Issue(s): “[T]he Mays argue that the district court erred by including these expenses as loss, for purposes of both sentencing and restitution . . . .” Id. at *1. “The question [for relevant conduct]. . . is whether it was reasonably foreseeable that USPS would react to their thefts by switching its parcel delivery policy to customer pick-up to ensure that its customers received their parcels.” Id. at *3.  

Held: “The district court was not clearly erroneous in concluding that the expense the USPS incurred was a reasonably foreseeable pecuniary harm resulting from the Mays’ actions. This is not a case of an isolated mail theft. Instead, each of the Mays’ excursions involved numerous and widespread thefts, and each new excursion increased the likelihood that the USPS would take some action to respond to the surging ‘tidal wave’ of customer complaints – perhaps by temporarily changing its parcel delivery procedure for the duration of the busy holiday delivery season or until the perpetrators were caught.” Id. at *3.

Of Note: The disappointment from the relevant conduct holding in this case is offset – somewhat – by a good restitution holding. The Ninth rejects restitution for the Post Office because its expenses “did not result from the conduct underlying an offense of conviction.” Id. at *3-*4. 

Sound at odds with the relevant conduct holding above? The different outcomes for the sentencing and restitution challenges are a reminder that “loss” for relevant conduct, and “loss” for restitution, require two very different analyses. For restitution, you look at the specific conduct that is the basis for the conviction. Here, the defendants pled to a single count of stealing mail on the December 24th. Although the Post Office started its new delivery policy on the 20th because of the defendants’ earlier mail mischief, the pair didn’t plead guilty to the earlier mail thefts. Hence the Mays couldn’t owe restitution for a postal policy began the 20th, when their crime of conviction took place on the 24th. Id. at *4.

May nicely illustrates a rich irony of federal sentencing: great precision is demanded for restitution, where money is involved, but we tolerate “close enough” for relevant conduct (when the length of a custodial term is at stake).

How to Use: May tolerates an unwelcome expansion of relevant conduct. The root of this problem is an ’01 amendment to USSG § 2B1.1 – defining loss as the “reasonably foreseeable pecuniary harm that resulted from the offense.” Id. at *3 n.3. Seven years later, the Ninth embraced this expansion in its frustrating Warr decision. See blog entry here.

May builds on the amendment and Warr and tolerates a whopping eight offense-level increase for four days of temporary postal policy. Unfortunately, May is a must-read to understand the potential dangers of unforeseen “foreseeable” guideline loss.
For Further Reading: Much of the injustice of the guidelines arises from their hated relevant conduct principles. For a valuable deconstruction of the relevant conduct guideline, see the article by Amy Baron-Evans and Jennifer Niles Coffin, available here.  

Image of the Grinch from

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


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Wednesday, February 13, 2013

U.S. v. Jolynn May and Jason May, No. 12-30016 and 12-30021 (2-12-13) (Quist with Fletcher and Fisher)
Neither rain nor snow etc. may stop the mail (although Saturdays might), but thefts of parcels left on porches certainly prevents it from getting through to the addressee. This was especially galling at Christmas time, when the thefts took place. The Postal Service, beset with a wave of such thefts, had to alter its delivery methods so that parcels were only delivered to addressees in person. The rest were returned to post office. This added additional costs. Eventually the defendant was caught and plead guilty. On appeal, the argument was that the costs of such a change in delivery policy should not have been added to relevant conduct and should not have been the basis for restitution. The 9th affirmed the relevant conduct, holding that the receipt of stolen mail, charged in count one, prior to the delivery change, could be added to theft of mail in count 2, which was after the change. The 9th ducked the issue of whether permanent crime prevention costs could be added to relevant conduct, saying that here it was proper because the change was directly related to the defendant's crime spree. The 9th did vacate the restitution order for close to $70,000 because the mail theft to which he plead guilty occurred after the change.

Congratulations to Linda Sullivan and Alan Zarky of the FPD Office (Tacoma) of the Western District of Washington

Sunday, February 10, 2013

Case o' The Week: An Unappetizing Petri Dish -- Petri, Rule 32, and Sentencing Objections

Six years ago, we complained of the Ninth’s decision in United States v. Saeteurn, 504 F.3d 1175 (9th Cir. 2007); see blog entry here. In Saeteurn, the Court held that there was no need to resolve disputed facts in a PSR, when those facts don’t actually affect the term of imprisonment imposed. Put differently, Saeteurn allowed the district court and the government to dodge meaningful appellate review, even when the defense squarely alleged factual errors at sentencing.

In the wise words of Yogi Berra, déjà vu all over again. United States v. Dan Petri, 2013 U.S. App. LEXIS 2714 (9th Cir. Feb. 8, 2013), decision available here.

Players: Decision by Judge Tallman, joined by Judges Schroeder and McKeown. Hard-fought appeal by D. Wa. AFPD Michael Filopovic and R&W Attorney Alan Zarky.

Facts: With two co-D’s, Petri worked an ATM card-skimming scheme that netted over $200k. Id. at *2. Petri pleaded guilty, and Probation balked at a minor role reduction. Id. at *3. In a sentencing memo, Petri’s counsel explained that the (at-large) “Sorin” was the real heavy, that Petri was coerced to participate in the scheme, and that Petri received less than $20k of the proceeds. Id. The district court denied minor role, didn’t really rule on the “Sorin” facts, but took Petri’s arguments “into account” and varied downwards under §3553(a) to impose a below-guideline sentence. Id. at *6. Petri appealed. Id.

Issue(s): “A full decade after an amendment to Rule 32 . . . we are asked for the first time to determine whether the amendment represented a vast expansion of the district court’s fact-finding responsibilities at sentencing. The defendant . . . insists that Rule 32(i)(3)(B) extends the district court’s fact-finding responsibility to all matters controverted, no matter how they are presented, throughout the entire sentencing phase.” Id. at *1.

Held:The rule’s context and history . . . demonstrate an intent to narrow the rule’s scope to only those factual objections to the presentence report that have the potential to affect the sentence. Because we cannot square this strong evidence of legislative purpose with the defendant’s broad interpretation, we affirm.” Id at *2. “Because Rule 32(i)(3)(B) pertains only to unresolved objections to the presentence report, the district court had no responsibility to address either of the arguments raised during sentencing.” Id. at *17 (emphasis added).

Of Note: “Petri’s argument,” Judge Tallman opines, “is a valiant attempt at grammatical dissection.” Id. at *9. At issue is a 2002 amendment to Rule 32. The real issue is whether, under the amended rule, the district court has to decide “other controverted matter[s]” – that is, decide any issue disputed at sentencing, even if the disputed fact isn’t in the PSR. Id. at *9. “Rule 32,” the panel holds, “does not extend so far.” Id. Because Petri objected only to the PSR’s refusal to give a minor role reduction, “but did not allege a factual inaccuracy in the presentence report,” Rule 32’s requirement that factual objections be resolved wasn’t triggered. Id. at *18.

How to Use: Read Petri with a practitioner’s eye and you’ll quickly see the unwritten back story. At sentencing Petri’s counsel explained how Petri was the victim of an armed and at-large Svengali, who manipulated and coerced this low-level schmo as part of a larger skimming scheme. Id. at *4. Notably, there was no evidence submitted in support of this version of events, no declaration from Petri himself, and no demand that these defense facts be put in the PSR – and thus little risk of obstruction or loss of acceptance if the facts didn’t pan out. (A familiar and prudent defense strategy). 

There’s a sure way to circumvent Petri and make a district court rule on objections – throw down and insist that the defense facts be included in the PSR. (Of course, you’ll risk obstruction and loss-of-acceptance). Petri well-illustrates a profoundly unfair dis-symmetry. If the government’s version of events is rejected, the AUSA just loses the enhancement. If our version of facts is rejected, we risk five more offense levels with the loss of acceptance and an obstruction bump. Saddling only one party with this huge litigation disincentive is a lousy way of getting to the truth of the matter.
For Further Reading: For a compelling explanation of how the Guidelines’ procedural dis-symmetry is unfair to the defense and frustrates the pursuit of truth at sentencing, see Margareth Etienne, Parity, Disparity, and Adversariality: First Principles of Sentencing, 58 Stan. L. Rev. 309, 318 (Oct. 2005), available here.

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


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