Sunday, December 29, 2013

Case o' The Week: Greater than the Sum of Its Parts -- Valdes-Vega and Arvizu "Totality" Analysis for Fourth Searches

Zero plus zero = ?

A: Reasonable suspicion for a stop.

United States v. Valdes-Vega, 2013 WL 67688095 (9th Cir. Dec. 24, 2013) (en banc), decision available here.

Players: Decision by Judge Gould, dissents by Judges Pregerson and Reinhardt (both) joined by Judge Thomas.

Facts: Seventy miles north of the Mexican border, near Temecula, California, agents saw Valdes-Vega driving faster than the flow of traffic, and change lanes without signaling. Id. at *1. Valdes-Vega slowed to seventy as he went through the checkpoint. Id. He didn’t make eye contact with the border patrol officer, and the agent noticed the truck had Baja plates, was older, and clean. Id. The agent turned on his lights, and thought that Valdes-Vega took longer than normal to stop. Id. A consent search produced eight kilos of cocaine. Id. 
  The district court denied a suppression motion, and a three-judge panel reversed. See blog post here. 
  The case went en banc.

Issue(s): “We must decide whether border patrol agents permissibly stopped a vehicle on a highway linked to the border . . .  . The United States Supreme Court has held that a roving border patrol can stop a vehicle for a brief investigatory stop based on an articulable reasonable suspicion of criminal activity. We must here decide whether border patrol officers' stated reasons for stopping a vehicle were sufficient to permit the stop without offending the Fourth Amendment's prohibition on unreasonable seizures. ” Id. at *1.

Held: “We hold that the facts and inferences articulated by the border patrol agents established reasonable suspicion that criminal activity was afoot, justifying the stop. We affirm the district court's denial of the motion to suppress the evidence of cocaine found as a result of the stop.” Id.

Of Note: The fight in this decision is the scope of Arvizu: a Supreme Court decision that allows a combination of innocent facts to – in their totality – rise to reasonable suspicion for a search. Id. at *3. Judge Gould writes that this Supreme Court precedent overrules previous Ninth authority holding that some facts are not per se probative, or per se minimally probative. Id. at *3. This amorphous “totality of circumstances” approach is then “filtered through the lens of the agents’ training and experience.” Id. 
  Isn’t this “zero plus zero equals more than zero?” – a bunch of innocent facts, crammed together, somehow creating cause for a stop? Yep: “Even innocent, noncriminal acts can foster reasonable suspicion in the total context.” Id. at *4.

How to Use: “Let’s cut to the chase.” Id. at *5 (Pregerson, J., dissenting). In a brief but potent dissent, Judge Pregerson lists the facts supporting the search here – facts that describe thousands of Southern California drivers every day. Those facts, explain the Judge, “did not create a reasonable suspicion that criminal activity was ‘afoot.’” Id. Judge Reinhardt agrees, and explains in his dissent that not all innocent facts are equal under Arvizu. Id. at *6 (Reinhardt, J., dissenting). The dissenters don’t carry the day here, id. at *4 & n.2, but Judge Reinhardt’s careful distinction of the Arvizu “innocent” facts is the analysis we’ll have to adopt in future “totality” fights.
For Further Reading: In an interesting article last year, a legal reporter analyzed the potential impact of the Obama appointees on the Ninth Circuit. See Howard Mintz, President Barak Obama has heavily influenced federal courts in Bay Area, available here.   The article describes the Obama appointees as, “moderates.” Id. Note that in the Valdes-Vega en banc decision, all three of the Obama jurists on the en banc court -- Judges Christen, Watford, and Hurtwitz – joined Judge Gould’s majority decision. 
   Is the Ninth really a “liberal” court, and if it is, will it remain so? For a thoughtful New York Times piece discussing the perceptions – and realities – of the nation’s largest appellate court, see John Schwartz, ‘Liberal’ Reputation Precedes Ninth Circuit Court, available here.  

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


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Thursday, December 26, 2013

United States v. Valdez-Vega, No. 10-50249 (12-24-13) (en banc) (Gould for majority with dissents by Pregerson and Reinhardt, joined by Thomas).

This is an en banc decision that concerns whether border patrol agents, making a brief investigatory stop, had sufficient articulable suspicious reasons. The 9th held that the officers did. The search was of a truck that was: (1) In an area frequented by smugglers (70 miles north of border in Southern California); (2) going faster than the flow of traffic on I-15 where the flow of traffic was between 70 and 80, and the truck was going over 90; (3) the truck was changing lanes numerous times; (4) the driver failed to make eye contact with the agent, but stared straight ahead; (4) the truck had Baja license plates, was older, and clean (?!); (5), oh yes, when the officer's lights went on, the truck took longer than normal to pull over to the side of the highway; and (6) Hispanic appearance. Once stopped, a consensual search followed, and cocaine was found. The analysis is with a "totality of circumstances" under Arvizu, 534 US at 273, where all factors are looked at and considered. In considering the stop, the possibility of innocent conduct need not be ruled out; nor is each factor parsed out and considered separately. The whole sum of the factors here support articulable suspicion. Pregerson and Reinhardt, each joined by Thomas, dissent. Each dissent argues that the factors don't rise to articulable suspicion. Pregerson concentrates on the factors present and that they do not justify a stop given the circumstances. Reinhardt focuses on the innocent reasons, and that Arvizu does not preclude such consideration.

United States v. Crowder, No. 13-30033 (12-24-13) (McKeown with Tallman and Murphy, D.J.).

In a Supervised Release revocation, the defendant was again placed on lifetime supervised release after a 14 month term of imprisonment for the violation. He argued that he could not be placed on lifetime Supervised Release after a revocation term of imprisonment because the 14 months could not be subtracted from a lifetime period. The 9th avoids the "metaphysical" issue by siding with other circuits that the practical and natural reading of the 3583(h) statute would not impose a constraint of reinstating to lifetime supervised release. If the defendant’s argument would be followed, courts would simply impose absurdly long terms of imprisonment.

United States v. Caceres-Olla, No. 12-10132 (12-23-13) (Berzon with Fernandez and Paez) (Note: This is an Az FPD case).

In a 1326 sentencing, the 9th looks at whether a prior felony conviction for lewd and lascivious batter (Florida) qualifies as a COV for Guideline purposes. The 9th holds it does not. The opinion scrutinizes the interplay between forcible sex offenses, and those that require no force (i.e. statutory rape). Because the state statute focuses on the age (12 to 16) of the victim, without being any force, it does not have the requisite force element. The 9th accords with the 4th Circuit's holding regarding a Tennessee statute. In regards to the "statutory rape" alternative under the Guidelines, the generic offense has a four year age difference. Here, the state statute does not have the generic age difference. Under Descamps, a categorical approach is employed. Because the age element is missing from the statute, the inquiry ends; there is no modified categorical approach. The gov't admits that all records were available at the time of sentencing, and therefore the case is remanded for sentencing on the record as is.

Congrats to Edie Cunningham, AFPD, Arizona (Tucson) for the win.

Tuesday, December 24, 2013

United States v. Mondragon, No. 12-30360 (12-23-13) (Graber with Tashima and Murguia).

On a double jeopardy issue, the 9th affirmed the denial of dismissal of a superseding indictment. The defendant faced drug and firearm charges. He requested a settlement conference with a specific judge. While waiting for the judge to become available, the trial court empaneled a jury and was ready to begin. A plea was reached; the guilty plea entered, and then, before sentencing, the defendant sought to withdraw. The court denied the motion and sentenced him. The defendant then appealed, despite a plea waiver. The gov't said, "okay, you want to withdraw, that's fine with us." The sentence was vacated and the matter remanded. There was a superseding indictment, and then the defendant said, "Wait! This is double jeopardy." "Not so," replied the court, and "not so" stated the 9th Cir. The defendant asked for (1) the settlement conference; and (2) it was with a judge not assigned to the case." The defendant moreover also moved for the mistrial after the jury was empaneled. The 9th sidestepped Kyle, and judge involvement, because even if there was improper judicial involvement (again, the trial judge was not involved), the defendant was not forced into asking for mistrial. This was not a case of the court or gov't "goading" the defendant into moving for a mistrial. The defendant was not prevented from having the jury decide the case because the defendant himself asked for a settlement conference, reached a plea, and moved for the mistrial. He has now been returned to where he started.

Monday, December 23, 2013

United States v. DeJarnette, No. 11-10606 (12-20-13) (Tashima with Noonan; dissent by Graber).

The 9th reversed a conviction for failure to register under SORNA and remanded for a judgment of acquittal. This involved a retroactivity interpretation of the AG's regulations. Under the facts, the defendant had a 2001 sex offense. His failure to register as a sex offender in the county where the offense took place, as opposed to where he resided, led to the charge. The 9th held that the retroactive application of SORNA's registration requirements had not specified by the AG to that requirement (county of offense). The jury instruction allowing conviction solely on the basis of failure to register in the county of the offense was erroneous and not harmless. Dissenting, Graber said that the registration requirement covers all sex offenders, including pre-SORNA offenders, and that he was specifically informed of his requirement.

United States v. Shorty, No. 12-20-13) (12-20-13) (Reinhardt with Noonan and Watford)

(Note: This is an Az FPD case).

The 9th reverses the conviction and remands for failure to perform an adequate colloquy for the waiver of jury. A jury can be waived under Fed R Crim P 23, but it requires waiver in writing, government consent, court approval, and, under case law, that the waiver be knowing and intelligent. Even though the waiver must be written, the court has said, well, "not really," but then the oral waiver is given much stricter scrutiny. Here, the defendant had a low IQ, and was learning disabled. There was no written waiver. The colloquy was inadequate to see if the defendant really knew about his jury rights; and whether he intelligently was giving up the right to a 12 person jury, what a jury was, that it had to be unanimous, that he could participate in selection, and finally, that the court would then determine the facts. The 9th reversed. The 9th however did not find the evidence on the aiding and abetting claim was insufficient and so there was no double jeopardy bar to retrial.

Congrats to Lee Tucker, AFPD in the Az FPD (Tucson).

Saturday, December 21, 2013

Case o' The Week: A Profitable appeal - Anderson and restitution orders

  The Ninth wants a criminal defendant to pay a huge software company’s profits.
  (And it’s a good thing). United States v. Anderson, 2013 WL 6670793 (9th Cir. Dec. 19, 2013), decision available here.

Players: Decision by Judge Callahan, joined by Judge Fernandez and Chief DJ Vance. Hard-fought appeal by ND CJA attorney John Jordan.

Facts: Anderson sold (unauthorized) copies of Adobe software online. Id. at *1. Activation codes were hand-written on the disk in permanent marker. Id. He sold about $70,000 worth of the software, was discovered by Adobe, and was ultimately prosecuted for criminal copyright infringement. Id. at *2. At trial, Anderson explained that he thought these disks were legal backup copies. Id. The parties disputed a “willful infringement of copyright” jury instruction, and the jury later sent a note questioning the meaning of “willful.” Id. at *4-*5. Anderson was convicted and the district court imposed $247,144 in restitution. Id. at *3.

Issue(s): “[  ]Anderson . . . appeals his conviction for criminal copyright infringement . . . .. Anderson contends that the district court erred: (1) by giving an incorrect jury instruction on willfulness; (2) by allowing the government to introduce evidence of uncharged acts of infringement; and (3) in calculating restitution.” Id. at *1.

Held: “Applying the willfulness standard for criminal copyright cases as recently clarified in . . . Liu, 731 F.3d 982 (9th Cir.2 013), we conclude that the jury instruction was flawed but did not rise to the level of plain error. We also find that the evidence of uncharged acts was properly admitted as intrinsic to the charged conduct, and accordingly, we affirm Anderson’s conviction. Nonetheless, consistent with . . . Fair, 699 F.3d 508 (D.C. Cir. 2012), and . . . Chalupnik, 514 F.3d 748 (8th Cir. 2008), we conclude that the district court erred in failing to award restitution reflecting the victim's actual loss, which consisted of the victim’s lost profits on sales of authentic copies that would have taken place if not for Anderson’s conduct.” Id.

Of Note: The district court erroneously calculated restitution by multiplying the number of copies of Adobe disks sold, by the retail value of the disks. Id. at *10. The Ninth embraces out-of-circuit authority for copyright restitution cases and reverses. Restitution for criminal copyright should focus on the victim’s loss, not the defendant’s gain – and “in most cases, that will consist of the copyright owner’s lost profits on sales that would have taken place if not for the infringing conduct.” Id. at *12. Anderson is a useful, rigorous application of restitution – a “back of the envelope approach simply will not do.” Id. “Speculation and rough justice are not permitted.” Id. at *13. Turn to Anderson to put some bite in restitution fights.

How to Use: In addition to a good restitution holding, the Court in Anderson also offers helpful language on the mens rea requirement for criminal copyright infringement. Id. at *7. The government in Anderson inexplicably used an old instruction that allowed for conviction if Anderson knew his acts “may” infringe upon copyrights. Id. “May” won’t cut it: the word is “vague” and rendered “the first sentence of the instruction incorrect to the extent that it suggests that Anderson could be convicted without knowing that he was violating Adobe’s rights.” Id. at *7. Because this was plain error review, this erroneous instruction didn’t earn a reversal – but the good mens rea language is still useful for copyright cases.  
Executive Committee, A.O. US Courts (new Chair Judge Traxler, not pictured)
For Further Reading: The Hon. Sarah S. Vance, Chief Judge of the E.D. La., sat on the Anderson panel. Chief Judge Vance is one of the eight members of the Executive Committee of the Administrative Office of the United States Courts (CJ Vance is to the far left, in front, in red). See article here
   The significance? It is the Executive Committee who ultimately determines the funding of the Defender Service account – a subject of much interest to those committed to the defense of indigent clients in federal court. See, e.g., E.C. Letter re: CJA Rate Cut, here

 Image of the (2012) Executive Committee from

Steven Kalar, Federal Public Defender ND Cal FPD. Website at



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