Saturday, September 27, 2014

Case o' The Week: Jurisdiction challenge bombs in Ninth - Garcia and post-Morrison Commerce Clause j/x

 Does a little apartment building in sleepy Fairfield, California sufficiently affect interstate commerce sufficiently to trigger federal jurisdiction?
  Yep – by per se rule.
United States v. Garcia, 2014 WL 4637169 (9th Cir. Sept. 18, 2014), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges Tallman and D.J. Garbis.  

Facts: Jantina Reed testified at trial that defendant Daniel Garcia acted unusually when she, her boyfriend, and two children lived in Garcia’s house – he ran around naked and stood outside her door, breathing heavily. Id. She and her family moved away, to an apartment building in Fairfield CA. Id. at *1, *4. Reed testified that Garcia had, during one fight, thrown items on her car and threatened, “tick, tick, boom, I’m going to blow this up to pieces.” Id. 
  One night, Reed heard an explosion and discovered that her borrowed SUV was on fire. Id. at *2. Cops found the remains of a pipe bomb under the SUV and damage to the apartment; a later search revealed a similar pipe bomb in Garcia’s residence. Id. at *2-*3. The SUV was built in Wisconsin; the building that suffered damage advertised rentals online and had tenants from out-of-state. 
  Garcia’s Rule 29 motion was denied, the jury returned a guilty verdict, and he was sentenced to thirty-five years in prison. Id. at *5.
Daniel Garcia

Issue(s): “Garcia contends that the government failed to present sufficient evidence to satisfy the Commerce Clause jurisdictional requirement of 18 USC § 844(i), because the government failed to demonstrate that Garcia’s criminal conduct affected interstate commerce.” Id. at *1. “Relying on [Lopez] and [Morrison], Garcia asserts that damage to the apartment complex did not satisfy the Commerce Clause jurisdictional element of 18 USC § 844(i) because there was insufficient evidence that any damage to the apartment building substantially affected interstate commerce.” Id. at *5.

Held:We disagree, and conclude that the Commerce Clause jurisdictional element for a conviction pursuant to 18 USC §  844(i) was satisfied as discussed in Russell v. United States, 471 U.S. 858 . . . (1985) and United States v. Gomez, 87 F.3d 1093 (9th Cir. 1996).” Id. at *5.

Of Note: This jurisdictional challenge to the apartment building being in “interstate commerce” was squarely foreclosed by the Supreme Court’s decision in Russell and the Ninth’s decision in Gomez. Id. at *5. In the present case, Garcia’s pitch was that the Supreme’s 2013 decision in Morrison undermined that authority: under new jurisdiction law, there was insufficient evidence of impact on interstate commerce to support the conviction. Id. at *6. 
  The Ninth doesn’t bite. 
  Unlike the statute in Morrison, the Section 844(i) statute has an internal interstate jurisdictional requirement. Id. at *7. The Ninth also rejects Garcia’s argument that the “aggregate effect” approach no longer satisfies the Commerce Clause requirement. Relying on a Second Circuit decision, Judge Rawlinson concludes that Russell’s “part of an economic chain” approach survives until expressly rejected by the Supreme Court (something not done in Morrison). Id. at *7. 
  The punch line is a per se rule that damage to a rental apartment building satisfies the jurisdictional provisions of 18 USC § 844(i). Id. at *8.

How to Use: What about the SUV? In an intriguing footnote, Judge Rawlinson muses that “there is a serious question as to whether the government presented sufficient evidence that the Chevrolet Tahoe SUV was used in interstate commerce.” Id. at *8 & n. 4. (Note that the apartment building was just dinged by some shrapnel from the explosion, id. at *2 – had the SUV been parked a bit further away when it was blown up, federal jurisdiction may not have existed in this case.) In a Section 844(i) case involving only a vehicle, Garcia leaves open the hope of another Morrison jurisdictional challenge.
Hon. District Judge Lawrence Karlton
For Further Reading: Garcia got the mandatory minimum of 35 years. The 31-year old prosecutor wanted more time for the 31-year old Garcia– prompting District Judge Karlton to ask if the AUSA was serious. “I want to tell you,” Judge Karlton chided the AUSA, “that the most important asset the U.S. Attorney’s Office has with the court is its belief in good sense.” For a fascinating account of this sentencing hearing, seeFairfield pipe bomber receives 35-year federal prison sentence,” available here.

Image of the Honorable District Judge Karlton from

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


Labels: , , , ,

Thursday, September 25, 2014

Developments In Federal Search And Seizure Law – 2014

The Oregon Federal Public Defender has issued the latest version of Developments in Federal Search and Seizure Law (available here), updated with cases right up to Judge Watford’s great opinion in the Johnny Nora case. The outline, which we have been using for over twenty-five years, began as a way of filtering out the thousands of bad search and seizure cases. We were interested in collecting the cases where Fourth Amendment interests were vindicated, a consolidation of our “the defendant only wins” file. The structure of the outline sets out the areas of search and seizure law with Counterpoint sections showing how defendants have prevailed in the face of law where individual privacy protections often feel like they are contracting to the vanishing point. The sections on what constitutes a search are updated with cases like United States v. Jones and Riley v. California that are pushing the edges of how we define protected areas. In general, the outline is intended encourage the analyses of chronology, incremental intrusions, and causation that are essential to putting together a winning suppression motion. We hope the outline provides a good starting point for researching motions and a ready resource for doing quick searches for the names of familiar cases with other relevant cases nearby.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Monday, September 22, 2014

Sessoms v. Grounds, No. 08-17790 (McKeown for a 6-5 en banc majority; Kozinski, Callahan, and Murguia, dissenting) ---
An en banc panel reversed, for the second time, a district court's denial of a § 2254 petition filed by a California state prisoner.  The petitioner unequivocally asked for a lawyer at the start of a police interview, so the state courts should have suppressed his statements because the police continued to interrogate him despite this request.  The state courts' contrary decision led to a grant of habeas relief and a new trial.

The events here were recorded on video at the jail where the petitioner was being held after he had surrendered himself.  The interview begins politely; the detectives introduce themselves to the petitioner, and then some pleasantries are exchanged.  Then the petitioner asked, "There wouldn't be any possible way that I could have a -- a lawyer present while we do this?"  The lead detective hemmed and hawed, so the petitioner repeated himself: "Yeah, that's what my dad asked me to ask you guys... uh, give me a lawyer."  The detectives did not stop the interview as they were required to do under Edwards v. Arizona, 451 U.S. 477 (1981).  The petitioner made incriminating statements which were used against him at his murder trial.  He was convicted and sentenced to life without parole. 

The California courts deemed the petitioner's requests for counsel equivocal under Davis v. United States, 512 U.S. 452 (1994), and affirmed his conviction and sentence.  The district court denied his habeas petition, but ultimately an en banc panel of the Ninth Circuit reversed.  The Supreme Court granted the state's cert petition and remanded for further consideration in light of Salinas v. Texas, 133 S. Ct. 2174 (2013).  The en banc panel (with Judge McKeown drawn to replace the late Betty Fletcher) again reversed the district court.

The California Court of Appeal had read the petitioner's first statement as "indistinguishable" from the question in Davis and his second statement as simply restating his father's advice.  But the state court never considered the statements together and in context.  The petitioner had been in jail for four days, yet conspicuously absent from the beginning of the conversation were the now-familiar Miranda warnings.  Even so, the petitioner asked for a lawyer right from the beginning of the interview.  Instead of giving him the Miranda warnings or terminating the interview, the detectives simply ignored his request for counsel.  Worse still, they lied to the petitioner about what his alleged accomplices had confessed to, and then told him that asking for a lawyer would do him no good.  The Miranda warnings are designed to mitigate the effects of this common police subterfuge.  In context, the petitioner unequivocally asked for a lawyer.  The panel even commended the petitioner's father for giving him some "good advice" in that regard.  The state had conceded before the state courts that admitting the petitioner's statements was not harmless, so the panel granted the writ and ordered a new trial.

Dissenting, Chief Judge Kozinski complained that the California Court of Appeal's opinion that held the petitioner's request for counsel to be equivocal was "carefully crafted to exploit every ambiguity in the timid utterances of a scared and lonely teenager," but still found that the state court's decision wasn't an unreasonable application of Davis.  And even though he agreed that AEDPA barred relief, he was still happy that the majority of the en banc panel reversed the district court.

Judge Callahan dissented, pointing out that the majority was really disputing the state court's [a court on which she had previously served] assessment of the facts, which isn't a basis for relief under AEDPA.  She also said that she interpreted the Supreme Court's GVR in light of Salinas as basically ordering the Ninth Circuit to affirm the denial of the habeas petition.

Writing for a five-judge group of dissenters, Judge Murguia said it was reasonable for the state court to find each of the petitioner's statements, in isolation, to be less-than-clear requests for counsel.  Although Judge Murguia agreed that the petitioner's statements should be read "together" (but not necessarily "in context"), she still thought that his statements "contained just enough ambiguity that a fairminded jurist could conclude that Sessoms was indicating only that he might want the assistance of counsel."

The decision is here:

United States v. Apel, Nos. 13-50003, -50004, -50005 (per curiam; panel is Silverman, Rawlinson, and Tunheim (D. Minn.)) ---

On remand from the Supreme Court, the panel held that the defendant's conduct of protesting on a closed military base in violation of a barment order was proscribed under 18 U.S.C. § 1382, and that his conviction did not violate the First Amendment for the reasons set forth in United States v. Albertini, 472 U.S. 675 (1985).

The decision is here:

Sunday, September 21, 2014

Case o' The Week: Reyes of Hope (then Harmless Error) - Voir Dire, Rule 43, and the Defendant's Presence

Hon. Judge Jay Bybee

  Not structural error to exclude a defendant from voir dire of a juror. 2014 WL 4358454, *11 & n.4.
  Start with that footnote spoiler, and the rest of the decision is a tad anticlimactic. United States v. Reyes, 2014 WL 4358454 (9th Cir. Sept. 4, 2014), decision available here.

Players: Decision by Judge Bybee, joined by Judges Bea and Christen. Hard-fought appeal by CD Cal AFPD Matthew Larsen.

Facts: Reyes was tried for bank robbery. Id. at *1. During voir dire, the court conferred with counsel at side bar and asked for strikes for cause. Defense counsel asked that Reyes himself be permitted to participate in these side bar discussions: that request was denied. Id. There were eighteen side bar meetings; over defense objection, defendant Reyes was not permitted to participate in any. Id. Defense counsel did consult with Reyes four times – but had to go to the defendant at counsel table (Reyes was not permitted to come to the bench). Id. At all but one of these sidebar sessions, substantive conversations about the jurors took place. Id. In one of these sidebar sessions, “Juror H” was questioned about her self-reported bias against bank robbers. Id. Reyes did not hear that exchange. Id. That juror served on the jury that ultimately convicted Reyes. Id.

Issue(s): [“Reyes] contends that the district court violated his right to be present at trial by excluding him from certain side bar exchanges during jury selection.” Id. at *1.

Held:We conclude that the district court violated Rule 43 when it questioned Juror H outside of Reyes’s earshot, but the district court did not violate Rule 43 by refusing Reyes’s request to be present during the other seventeen side bar exchanges.” Id. at *4. “We agree with [other courts that have held] that, under Rule 43, the defendant has a right to be personally present during voir dire of prospective juror. The district court erred by questioning Juror H to determine whether she was ‘qualified and suitable to serve on a jury’ when Reyes had a standing objection to his exclusion from the side bar conferences. The court could have complied with Rule 43 either by permitted Reyes to join his attorney at the bench while the court conversed with Juror H or by questioning her in open court.” Id. at *5. (But . . . “[w]e conclude the side bar voir dire of Juror H was harmless because the evidence of Reyes’s guilt was overwhelming.” Id. at *7).

Of Note: The good news is that it is now clear in the Ninth Circuit that a defendant has a statutory right to be present when jurors are questioned. The bad news is that the Court holds, for the first time squarely in the Ninth, that “meetings between counsel and the court at which the participants discuss whether should be excused for cause, exercise preemptory challenges, or decide whether to proceed in the absence of prospective jurors are all examples of a ‘conference or hearing on a question of law’ from which the defendant may be excluded at the district court’s discretion.” Id. at *5.

How to Use: Judge Bybee emphasizes several aspects of this case that salvaged the conviction from a Rule 43 attack. There were no limits placed on Reyes’ ability to let his attorneys know who he thought should excused for cause, or how he wanted to exercise his preemptory challenges. Id. at *6. Reyes’ counsel had a chance to confer with their client before making decisions about the jurors. Id. Finally, the judge identified in open court each juror who had been excused – so Reyes would know if his attorney mistakenly excused the wrong juror. Id. Absent those protections, the exclusion of a defendant from a sidebar on jury selection could rise to a Rule 43 violations – note well those aspects of Reyes.
For Further Reading: “Prisons are for people we are afraid of, but we have been filling them with many folks we are just mad at.” 
  Turns out, you and (Former) Speaker Newt Gingrich think alike on the overuse of incarceration. For a thoughtful op-ed by the former Speaker, see What California Can Learn from Red States on Crime and Punishment, available here.

Image of the Honorable Judge Jay Bybee from

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

Labels: , , , ,