Wednesday, May 28, 2014

United States v. Sullivan, Nos. 12-10196, 12-10217 (Ikuta, J, with Tallman, J, and O'Connell, DJ (CD Cal)) ---
The court affirmed the defendant's convictions (on his appeal) and vacated his sentences (on the government's cross-appeal) for producing and possessing child pornography.  The published portion of this appeal resolves five issues, each of which I'll discuss in turn.

The defendant was on parole for California state convictions relating to having sex with a 14-year-old girl.  (This case appears to involve similar conduct.)  One of the conditions of parole was that he was required to submit to searches of his computers and mobile phones.  While he was living in a motel in Oakland, California, he met a girl in Berkeley and convinced her to start living with him.  Three times they went to a house in Vacaville and had sex there; on one of those occasions, he filmed it.  Later he transferred the video to a laptop.  The defendant also started pimping the girl, and Oakland police arrested her in an area frequented by prostitutes.  The girl was returned to her family, who reported to the police that the defendant had kidnapped, raped, and pimped her out.  Parole officers arrested the defendant at the Oakland motel, but the Berkeley police handled the investigation because the girl had initially been kidnapped in that city.  As part of that investigation, the defendant consented to a search of his laptop by the Berkeley police.  In addition to revocation charges in California state court, he was indicted on two federal counts -- producing child pornography, in violation of 18 U.S.C. § 2251, and possession of child pornography, in violation of 18 U.S.C. § 2252.  The defendant had a bench trial. He was later sentenced to the respective mandatory minimums on each charge (25 and 10 years), to be served concurrently.  Even though the trial judge rejected the defendant's testimony as "not credible" and "not true," he declined to enhance the Guidelines range under U.S.S.G. § 3C1.1 for obstruction of justice.  The defendant appealed his convictions and the government cross-appealed the sentence.

A.  Venue was proper for the production charge in the Northern District of California even though the video was made in the Eastern District.  For "continuing offenses," venue is proper in any district where the offense was "begun, continued, or completed."  18 U.S.C. § 3237(a).  Trial evidence showed that the defendant began his control over the victim girl in Berkeley, in the Northern District, and used that control to force her to make the video in Vacaville, in the Eastern District.  Because the defendant's conduct spanned both the Northern and Eastern Districts, venue was proper for the production charge in the Northern District (where venue was also clearly proper for the possession charge).

B.  The defendant's commerce-clause challenge to the charges was foreclosed by United States v. McCalla, 545 F.3d 750 (9th Cir. 2008) (for the production charge), and United States v. Gallenardo, 579 F.3d 1076 (9th Cir. 2009) (for the possession charge).  Nothing in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), was inconsistent with the reasoning of those two cases, so they were not implicitly overruled and the panel was bound to follow them.

C.  The government's unexplained three-week delay in obtaining a warrant to search the defendant's laptop was not unreasonable and did not violate the Fourth Amendment.  The court balanced the nature of the intrusion on the defendant's privacy interests against the nature of the government's interests in effecting the search, taking into account the defendant's eventual consent to the search and his status as a parolee.  His privacy interests were minimal, the court said, because the defendant was in custody on parole revocation charges during this three-week period, he expressly consented to the search, and he was a parolee who had already been subject to a search requirement.  Moreover, the government's interests in searching the laptop was legitimate because of the need to supervise parolees, the need to discover evidence of crimes (!), and because the laptop was transferred from the custody of parole officers to the Berkeley police in order to carry out the search. 
D.  The mandatory minimum sentences applied because the defendant's prior convictions under Cal. Penal Code §§ 261.5(d) & 288a(b)(2) were categorically generic crimes "relating to aggravated sexual abuse, sexual abuse, or abusive sexual contact involving a minor or ward." 18 U.S.C. §§ 2251(e); 2252(b)(2).  Because the generic crime defined by the federal mandatory-minimum statutes was simply one "relating to" the prohibited sexual conduct, the state statutes in question here need not be equivalent to the listed federal generic offenses.  They simply had to "stand[] in some relation to, bear[] upon, or [be] associated with that generic offense."  United States v. Sinerius, 504 F.3d 737, 740 (9th Cir. 2007).  This permits the federal sentencing judge to go beyond a strict comparison of the elements of the state crime to the elements of the generic offense.  And it was enough for the panel that the provisions of the California Penal Code involved here applied when the victim was under 16 and the defendant over 21.  That meant that the California statutes related to sexual abuse of a minor, and the mandatory minimums applied.

E.  The sentencing judge should have another opportunity to explain whether he would impose the same sentence after applying the two-level upward adjustment for obstruction of justice, because his reasons for not applying that adjustment were flawed and the court could not tell from the record whether he would have imposed the same sentence if the adjustment had been applied.  The judge did not actually have to be misled before the adjustment applies; it was enough that the defendant's false testimony had the "potential for obstructing the prosecution of the offense," which "providing materially false information to a judge" clearly has.  And the judge incorrectly declined to apply the enhancement out of fear for double punishment, because the enhancement punishes perjury and not the underlying crime.  The court thus remanded for resentencing in order to determine whether the sentencing judge would change his sentence if the enhancement applied.

The decision is here:

United States v. Rangel-Guzman, No. 13-50059 (Kozinski, CJ, with Clifton, J, and Rakoff, DJ (SDNY)) --
The Ninth Circuit affirmed a conviction for importation of marijuana but remanded for resentencing. It rejected, on plain-error review, the defendant's claim of improper vouching when the prosecutor impeached the defendant's testimony with her own recollection of an interview she conducted with him and the case agent. But it remanded for resentencing because the district court failed to explain why the defendant did not qualify for the two-level safety-valve reduction under U.S.S.G. § 2D1.1(b)(16).

At the Otay Mesa port of entry, a drug-sniffing dog alerted to 91.4 kilograms of marijuana that were hidden in a car that the defendant was driving.  ("Good dog!", Kozinski says.)  At trial, the defendant told a story that differed from the story that he told the prosecutor and the case agent during a pretrial interview.  The prosecutor impeached the defendant's testimony by asking questions like "Didn't you tell us such-and-such during the interview?" and "Don't you remember that I was shocked when you told me thus-and-so?"  Defense counsel neglected to object to this line of impeachment.  The defendant was convicted. Although the defendant faced no mandatory minimum sentence, he asked for the two-level safety-valve reduction under U.S.S.G. § 2D1.1(b)(16), but the sentencing judge did not explain why he should not receive that reduction. 

The court of appeals affirmed the conviction, rejecting the defendant's vouching claim on plain-error review. Obviously the prosecutor was vouching, because she relied on her own independent recollection of what happened during the pretrial interview instead of calling the case agent to testify to the defendant's inconsistent statements. (This much the government conceded.)  But this error did not affect the defendant's substantial rights because there was overwhelming evidence against the defendant that he knew the marijuana was hidden in the car.  Thus his vouching claim failed.

However, the court remanded for resentencing because the sentencing judge failed to address whether the defendant was eligible for the 2-level safety-valve reduction under U.S.S.G. § 2D1.1(b)(16).  The government asked the judge to increase the defendant's offense level under U.S.S.G. § 3C1.1 for obstruction of justice, arguing that the defendant's trial testimony was perjured.  The district court denied that sentencing enhancement.  On appeal, the government argued that denying the obstruction-of-justice enhancement implicitly denied the safety-valve, because the sentencing judge must have also concluded that the defendant did not meet the safety valve's truthful-disclosure requirement.  The Ninth Circuit held that these two findings are not the same, and sent the case back for resentencing to allow the sentencing judge to make that finding in the first instance.

The decision is here:

Tuesday, May 27, 2014

[Ed. note -- Jon asked me to fill in for a few days while he's out of the office.]
United States v. Guerrero-Jasso, No. 12-10372 (Berzon, J., with Fernandez and Paez, JJ.) ---

In order for the 20-year maximum sentence to apply in an illegal-reentry case, the defendant must have been removed subsequent to a conviction for an aggravated felony. Here, the defendant did not admit that fact at the change-of-plea hearing, so his 42-month sentence exceeds the 2-year statutory maximum, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Ninth Circuit found this Apprendi error not to be harmless -- despite the government's attempts at the sentencing hearing to prove that it was harmless by introducing documentation to show the dates of conviction and removal. The court thus vacated and remanded for resentencing.

The defendant pleaded guilty to an information that charged him with being an alien found in the United States after having been removed on each of three different dates. The information did not contain the date or nature of the prior conviction involved here, which was an aggravated felony and occurred before only one of the three dates in the information. In connection with the change of plea, the defendant never admitted in open court that he had been removed on any particular date.

The PSR treated the applicable statutory maximum as 20 years based on two important facts. First, the defendant had given a statement to an ICE officer in which he admitted the three dates of removal. (This statement was never introduced in court.) Second, the routine criminal background investigation revealed the prior conviction. The defendant objected to the PSR because he never admitted the "sentence-enhancing fact" of being removed subseuqent to a prior conviction for an aggravated felony. The government countered this objection by introducing three ICE execution of warrant forms, each of which indicated that an ICE officer had witnessed the defendant's removal on the three dates. (The government expressly acknowledged that it did so in order to show that any Apprendi error would be harmless.) The defendant challenged the reliability of these forms, but the district court denied his motion to strike them.

At sentencing, the district court ruled that the 20-year maximum applied because the defendant had admitted all the dates of removal when he pleaded guilty. (This ruling would prove to be wrong.) The district court imposed a 42-month sentence.

The defendant never admitted that he had been removed subsequent to a conviction for an aggravated felony. Thus the Apprendi error here is this: When a defendant pleads guilty to an information that charges "A and B and C," he is deemed to admit either A or B or C, not all three. The court thus treated his guilty plea as admitting that only one of the three removal dates was correct, not that any particular one was correct. And because only one of those dates occurred subsequent to the prior conviction, the entry of the guilty plea by itself did not support the 20-year statutory maximum sentence. If the government wanted to expose the defendant to that higher potential sentence, the burden fell on it to ask him to admit those facts at the change-of-plea hearing. It was not enough that the defendant failed to object to the relevant facts as recited in the PSR. Nor was it enough that the defendant acknowledged, at the change-of-plea hearing, that he faced a maximum 20-year sentence; Rule 11 simply requires the court to tell the defendant what he could possibly face, and acknowledging that one has been advised of this maximum possible punishment is not the same as admitting the facts necessary to expose oneself to it.

For its part, the district court should have required the defendant to admit the facts essential to the 20-year sentence. Where a charging document does not contain the facts essential to upholding the prior conviction -- and it is not necessary to allege the prior conviction date in the charging document in a case like this, see United States v. Almendarez-Torres, 523 U.S. 224 (1998) -- the defendant must either admit those facts, or they must be proved to a jury. Here, the district court accepted the defendant's plea without requiring to admit that he had been removed subsequent to a conviction for an aggravated felony. Any sentence above two years would thus violate Apprendi.

But Apprendi violations can be harmless. See Washington v. Recuenco, 548 U.S. 212 (2006). This assessment required the court to evaluate the record to see whether "overwhelming and uncontroverted evidence" showed that it is harmless. See Neder v. United States, 527 U.S. 1 (1998). The district court here declined to resolve the defendant's objections to the reliability of the warrants of removal, because it erroneously believed that the defendant had admitted the subsequent-to fact necessary for the 20-year maximum. Thus the warrants were not uncontroverted evidence that could play into the harmless-error analysis. And it was not the defendant's burden, as the government argued, to introduce evidence to show that those documents were unreliable, because here the government bears the burden of proving harmlessness. Similarly, the defendant's failure to specifically object to the facts presented in the PSR did not make the evidence "overwhelming and uncontroverted," particularly because he continued to object to the warrants at the sentencing hearing.

Judge Fernandez issued a short concurring statement.

Judge Berzon issued a concurring statement that was itself longer than the opinion in the case. "I write separately to express my concern that, under our case law, harmless-error review based on post-conviction factual submissions could swallow up the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000). We need to re-think our doctrine on this important point." (In context, "post-conviction" here means evidence introduced after a guilty plea is entered or a jury verdict returned.)

Congratulations to San Jose AFPD Cynthia Lie.

The decision is here:

Monday, May 26, 2014

Case o' The Week: Defendant trips on "high bar" - Garza and Sua Sponte Competency Referrals

   Diabetes eating the defendant's brain, diagnosed anxiety disorder, and admitted failure to understand the trial proceedings. Competent?
 Competent enough.
United States v. Garza, 2014 WL 2058088 (9th Cir. May 20, 2014), decision available here.

Hon. Richard C. Tallman
Players: Decision by Judge Tallman, joined by Judges Ikuta and DJ O’Connell. Hard-fought appeal by ED Cal AFPD Carolyn Wiggin.

Facts: Garza was charged with one count of receipt or distribution of child porn, and another of possession. Id. at *1. His lawyer hired a psychologist who prepared a competency report. Id. That psych diagnosed Garza with anxiety, and dementia caused by uncontrolled diabetes; he concluded that Garza was incompetent. Id. Garza was sent to the BOP for an eval: Dr. Lisa Hope concluded Garza suffered from anxiety disorder, did not suffer from dementia, and was competent to go to trial. Id. After Dr. Hope’s report, the competency issue was dropped and the case went to trial. Id. at *2. Garza testified, explained that he was mentally disabled, and complained that diabetes was eating his brain. Id. Garza denied understanding the proceedings. Id. Defense counsel did not move to declare Garza incompetent. Id. Garza was convicted – and before imposing twenty years the district court mused that Garza has been “playing possum” during his testimony. Id.

Issue(s): “[T]he failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial . . . Sometimes ‘adequate’ means that the district court must sua sponte consider a defendant’s competency. The question is whether this is one of those times. Garza says yes. He argues that the district court plainly erred by failing to sua sponte hold a competency hearing.” Id. at *3.

Held: “There was no plain error here because no reasonable judge would harbor a genuine doubt about Garza’s competency; no reasonable judge would harbor a reasonable doubt about Garza’s competency because there was not substantial evidence; there was not substantial evidence because Garza’s medical history, his behavior in and out of trial, and his defense counsel’s statements do not reveal a defendant incapable of either understanding the nature of the proceedings against him or assisting in his defense.” Id. at *7 (internal quotations and citation omitted).

Of Note: Judge Tallman briefly discusses an interesting challenge by Garza: if a defendant is committed for a competency evaluation under Section 4247, is the defendant then entitled to a competency hearing upon return from the BOP? Id. at *7. Makes sense, and Judge Talmman concedes that his argument is “not without textual support.” Id. Unfortunately, the answer is, “no:” “A § 4247 examination does not automatically entitle a defendant to a hearing.” Id.

How to Use: The “substantial evidence” standard applies to the issue of whether a district court erred by not making a competency determination sua sponte. This standard is not clearly defined and “not easily applied.” Id. at *3. The bulk of the Garza decision discusses this standard (“the bar is clearly high”), works through test and provides “general guidelines.” Id. at *3-*5. These “rough guidelines” are new law, and are worth review if you represent a client with competency issues (and may be of particular importance for capital habeas work).
For Further Reading: In three short weeks, the timekeeping system for every Defender employee will be significantly re-tooled in preparation for the A.O.’s fall Work Measurement Study. To get ready for this important June 16 “go live” date, and to get the new federal defenderData task codes, Defender staff should grab the collection of materials and hit the training links here: 

Image of the Honorable Richard C. Tallman from
Image of the “dData” icon from

Steven Kalar, Federal Public Defender ND Cal . Website at


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Tuesday, May 20, 2014

US v. Garza, No. 12-10294 (Tallman with Ikuta and O'Connell, D.J.).
When does a court sua sponte have to order a competency hearing? The 9th addresses this issue here, and adopts a two prong test. There has to be (1) strong evidence that the defendant suffers from a serious disease or defect; and (2) the serious disease or defect affects understanding of the proceedings or ability to assist counsel.

Here, the defendant was charged with possession and distribution of child porn. A defense psychologist examined the defendant. The expert's report indicated crippling anxiety, disabilities, and diabetes that led to dementia. The defense expert also concluded that the defendant was not "able to rationally address his legal circumstances at this time," and so the parties stipulated that the defendant was incompetent. The defendant was then sent to a BOP facility in Los Angeles, where a competency examination and observation was held. BOP (Dr. Hope) issued a report that he was competent, malingering and not suffering from dementia. The defendant returned to court, and his new counsel never followed up with a competency determination. The case went to trial, and sentencing. The court noted he felt the defendant was malingering. On appeal, defendant argues that enough of an issue was raised that a competency determination had to be held. The 9th disagreed. The evidence here was disputed about the mental state, and there was no indication at trial or other proceedings that he the condition was affecting him or impending his ability to assist counsel. His counsel did not raise the issue. The court here was not required to hold a determination sua sponte. The court also stressed that it is primarily incumbent upon defense counsel to bring any issues about the defendant's competency to the court's attention; as in this case, reliance on the court's ability to order a competency determination sua sponte can be hazardous.

The decision is here:

Monday, May 19, 2014

Vega v. Ryan, No. 12-15631 (5-19-14) (per curiam with Schroeder, Bybee and Beistline, Chief D.J.).

The 9th reversed denial of a habeas. The 9th also withdrew its prior decision in this case. The petitioner, convicted of sex abuse of a minor, after charges had been dismissed twice before, raised IAC when his lawyer in the third set of charges failed to review the file or interview a witness to whom the victim had recanted. The witness was the victim's priest, although the recantation occurred outside of a confession. Although the victim had recanted to her mother, the 9th held that corroborating recantation was critical, especially to "Father Dan," and that the lawyer had been performed below professional standards and there was prejudice.

Sunday, May 18, 2014

Case o' The Week: Cops "Preston" Interrogation Techniques -- Preston En Banc and Involuntary Confessions

Hon. Marsha Berzon

  “The right against compulsory self-incrimination is the mainstay of our adversary system of criminal justice and one of the great landmarks in man’s struggle to make himself civilized.”
   Noble sentiment. And, in our beloved Ninth, also the law. United States v. Preston, 2014 WL 1876269, *6 (9th Cir. May 12, 2014) (en banc) (quotations and citation omitted), decision available here.

Players: Decision by Judge Berzon, joined by Chief Judge Kozinski, Judge Reinhardt, Judge Noonan, Judge Thomas, Judge Graber, Judge Wardlaw, Judge Gould, Judge Baez, Judge Christen, and Judge Watford. Concurring decisions by Judges Graber and Gould.

Facts: Preston was 18 with an IQ of 65. Id. at *1. An 8-year old child of a neighboring family accused Preston of sexual assault. No forensic evidence supported the allegation. Id. at *2. 
  Police interrogated Preston for forty minutes at his home. Id. at *2. They quickly became aware of Preston’s mental disability. Id. Nonetheless, the officers badgered him to admit that he was at his house on the day of the alleged assault until Preston finally agreed (he actually was not). Id. at *3-*4. The officers got him to write out a confession, misleading him as to its purpose. Id. at *5. The officers confronted Preston with a series of questions that required him to choose between two incriminating alternatives – the boy repeatedly chose the least incriminating answer. Id. at *4. Preston filed and lost a suppression motion, then agreed to waive a jury trial. He was convicted of abusive sexual contact after a three day bench trial. Id. at *5. A three-judge panel affirmed, over a compelling dissent by Judge Noonan. See blog here. 

Issue(s): Under the Ninth’s 1991 Derrick v. Peterson decision, must the Court determine “first whether the police’s conduct here was inherently coercive, and, if not, [must the Court hold] the confession voluntary without regard to the likely impact on an individual with Preston’s mental characteristics [?]” Id. at *8.

Held: “[T]o the extent that Derrick held that the issue of police coercion during interrogations must be evaluated without regard to the individual circumstances of the suspect, it cannot be reconciled with prior opinions of this Court or with binding Supreme Court precedent . . . we now explicitly hold that Derrick is no longer good law and overrule it . . . .” Id. at *9. “[T]he officers’ use of the methods employed here to confuse and compel a confession from the intellectually disabled eighteen-year old before us produced an involuntary confession . . . we conclude the district court erred in admitting Preston’s confession.” Id. at *15-*16.

Of Note: Preston is gorgeous legal writing. Read it first to enjoy Judge Berzon’s practical explanation of why we care about the voluntariness of confessions, and her admonitions about the rigor required for the analysis. See id. at *8 (explaining that it is irrelevant to the question of voluntariness whether the confessor in fact spoke the truth).
 Then read it again for a seminal new rule: the defendant’s individual characteristics now matter at the outset of the voluntariness inquiry. This is a major development – Preston is a must-read.

How to Use: The “Reid Technique” teaches interrogation to cops. Id. at *12, see also the Reid web page here. The officers here used Reid interrogation techniques. Id. When the three-judge panel affirmed this shoddy interrogation, Reid posted the decision on its web page
  In this en banc decision, Judge Berzon carefully dissects the “Reid technique” and hammers the officers’ deviations from the manual. Id. at *12. It is a beautiful script for a cross (with an en banc imprimatur). Buy the Reid manual, read Preston at *12 - *15, remind your D.J. that the jury shall hear relevant evidence on the issue of voluntariness, 18 U.S.C. § 3501(a), and look forward to crossing the interrogating cop at trial.
For Further Reading: Preston’s single most important fact? The officers “began recording their interaction with Preston within ‘one or two minutes’ of approaching him.” Id. at *2, *9. Without that recording, the Court would have never known the extent of the coercion in the case – this mentally-disabled kid would have lost a swearing match with the police in an evidentiary hearing. 
   This is a second time in only a month that the recording of a confession gave the Ninth the true facts of the case – and revealed the real abuses that go on with interrogations. See blog on Ramirez-Estrada, here
   It is travesty that federal agents are still allowed to not record confessions.  For a blunt indictment of this shameful practice, see a compelling commentary here

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


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