Wednesday, October 29, 2014

[Ed. note -- Jon asked me to step in for a few days while he's out of the office.]
US v. Swisher, No. 11-35796 (Ikuta with Alarcon; concurrence in judgment by Tashima). 
Isn't this case déjà vu?  The defendant wore some medals that he didn't earn, and the government punished him for it under 18 U.S.C. § 704.  Didn't the Supremes rule that this amounted to protected speech?  That was the basis for the defendant's § 2255 motion.

Well, it's not exactly that straightforward.  In Alvarez, 132 S. Ct. 2537 (2012), the Supremes held in fractured opinions that a false claim about getting a medal under 18 U.S.C. § 704(b) was protected speech.  But later the Ninth Circuit, in US v. Perelman, 695 F.3d 866 (9th Cir. 2012), held that falsely wearing a medal under § 704(a) was not protected speech.  Is Perelman still controlling?  The 9th holds "yes" as precedent controls.  The court thus affirmed the denial of the defendant's § 2255 motion.  Wearing medals is lesser speech than claiming to have earned them.  Tashima concurs only in the judgment, gnashing his teeth with Perelman's reasoning and believing that wearing is also akin to speech.  Grudgingly going along, his concurrence is a call for en banc review.

The decision is here:


Sunday, October 26, 2014

Case o' The Week: Crawford + Apprendi = Magic -- Salvador (aka "Magic") Vera and Cop Expert Testimony

Hon. Judge Raymond Fisher

Mix Crawford and Apprendi, and good things are bound to follow.
United States v. Vera, 2014 WL 5352727(9th Cir. Oct. 22, 2014), decision available here.

Players: Decision by Judge Fisher, joined by Judges Noonan and Wardlaw.

Facts: Wiretaps on Vera and others produced an indictment alleging conspiracy to distribute a variety of drugs (although only 24 grams of heroin were actually obtained in the investigation). Id. at *1-*2. Seventy wiretap calls were the primary evidence at trial.. Id. at *2. Two case agents testified, mingled percipient witness testimony with “expert” testimony on gangs, and intercepted the meaning of the calls. Id. at *2-*3. The defense essentially conceded the conspiracy charge, and focused on the adequacy of the government’s proof of drug type and quantity. Id. The jury returned guilty verdicts, and special verdicts on drug type and quantity. Vera was sentenced to 30 years. Id. at *3.  

Issue(s): “This appeal requires us to revisit issues that arise when law enforcement officers offer both expert and lay opinion testimony interpreting the meaning of intercepted telephone calls.” Id. at *1. “The defendants argue that [the testimony of FBI Agent Lavis] was improper because it (1) impermissibly mixed lay and expert opinions; (2) served as a conduit for testimonial hearsay in violation of Crawford; (3) was not the product of reliable principles and methods; and (4) included impermissible lay opinions.” Id. at *7.

Held: “We again emphasize that such expert opinions must rest on reliable methodology; that such lay opinions may not be supported by speculation or hearsay, or interpret unambiguous, clear statements and that the jury must be instructed on how to appropriately evaluate each form of testimony offered by the officer.” Id. at *1.  

  “We affirm the admission of the gang testimony but reach a different conclusion regarding the testimony interpreting the recorded calls. Because that testimony intermingled lay and expert opinion, the district court’s failure to explain the distinction to the jury constituted plain error. Additionally, this intermingling resulted in the admission of improper expert and lay opinions, which also constituted plain error. Because these error affected the drug quantities found by the jury in a special verdict, and therefore the mandatory minimum sentences the defendants faced, they affected the defendants’ substantial rights and seriously affected the fairness of the judicial proceedings. Accordingly, we vacate the drug quantity findings and the defendants’ sentences.” Id.

Of Note: While this is a great decision on cop “experts” and wiretaps, note the less-welcome decision on gang testimony. Id. at *5. Judge Fisher distinguishes the Second’s great decision in Mejia, and finds no Crawford violation in a detective’s gang opinions. Id. Nonetheless, the opinion does shine in its principled analysis of cops’ testimony on drug jargon. Id. at *8. Investigating agents who also testify as “experts” must be accompanied by an instruction on the differences between percipient and expert testimony. Id. at *8. Moreover, FRE 701 and 702 foundation requirements apply to the testimony – no speculation, no reliance on hearsay, and no “interpretation” of clear and unambiguous statements.Id.

How to Use: The rubber hit the road when Agent Lavis’s opinions on drug weights from the calls – made without adequate foundation – “resulted in admission of specific drug quantity opinions that did not rest on reliable methods.” Id. This intersection of Crawford and Apprendi meant that the high sentences based on quantity are vacated. Id. at *15. In a question of first impression, Judge Fisher concludes the remedy is to remand to a new sentencing jury. Id. Because agent “expertise” is so often abused in this area, this holding is particularly potent stuff and worth a close read in wiretap and drug conspiracy cases.
For Further Reading: The BOP has told the Sentencing Commission that it will take ten months for it to arrange for reentry programs for drug offenders to be released on Nov. 1, 2015. This means a deadline of signed release orders by January 15, 2015. For a summary of the numbers of folk facing this deadline, see Commission memorandum here

Image of the Honorable Judge Raymond Fisher from

Steven Kalar, Federal Public Defender ND Cal. Website at


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Friday, October 24, 2014

US v. Castro-Ponce, No. 13-10377 (Gould with Reinhardt and Berzon). 

The 9th makes clear that before a court finds that an upward adjustment for obstruction of justice based on false testimony is appropriate, the court must explicitly find that (1) the testimony was false; (2) the testimony was material; and (3) the testimony was willful and intentional.  In this case, the defendant was charged with conspiracy and other drug trafficking offenses.  He testified as to four incidents, offering explanations that explained why he was at certain spots. The court imposed a 240-month sentence based on the obstruction adjustment, but expressly found only that the testimony was false.  Given the severity of such an adjustment, and the chilling effect on testimony, the court must also explicitly find the two other elements in the section: materiality and intentional willfulness.  The 9th follows the approach of the Sixth and Tenth Circuits.  Here, the sentence was vacated and remanded for such findings.

The decision is here:

Tuesday, October 21, 2014

United States v. Hernandez, No. 13-50632 (per curiam with Pregerson, Tallman, and Bea).

In honor of Descamps, we should have a pledge of allegiance to precedent finding overbroad categorical approaches, where there is one statute, indivisible. In this case, the 9th vacates a sentence that added an aggravated felony enhancement in a § 1326 case for a California felon in possession. The 9th followed recent precedent in so ruling. In United States v. Aguilera-Rios, No. 12-50597 2014 WL 4800292 (9th Cir. 9-29-14), the court held in the immigration context that the California felon-in-possession statute was not a categorical fit for the federal felon in possession statute because the state statute did not have an antique-firearms exception. This overbroad approach also applies in the sentencing context, and so the aggravated-felony adjustment is not triggered.

Congrats to Jim Locklin, Deputy Federal Defender in the Calif. Central FPD (Los Angeles).

The decision is here:

Sunday, October 19, 2014

Case o' The Week: Ninth Finds No Value in "No Value" argument - Renzi and loss calculations

Rep. Rick Renzi

  $200,000 for Arizona wine?
United States v. Renzi, 2014 WL 5032356 (9th Cir. Oct. 9, 2014), decision available here.

Players: Decision by Judge Tallman, joined by Judges Callahan and Ikuta.

Facts: Before he was an Arizona Congressman, Renzi was friends and business partners with Sandlin. Id. at *3. After Renzi was elected, he sold Sandlin his share in a real estate company for a $800k promissory note. Id. 
   Sandlin also owned a tract of land near federal property in Arizona. Id. After Renzi became a Congressman, he got involved in a deal to trade federal land (something that requires Congressional action). Id. at *5. Renzi pushed the interested property group to buy Sandlin’s tract as part of this exchange – in exchange, Renzi promised to use his “free pass” to get a land trade through Congress. Id. at *5. 
  The property group accordingly bought Sandlin’s tract: Sandlin then promptly wrote a $200,000 check to “Renzi Vino,” an Arizona wine company owned by Renzi. Id. at *5. Sandlin later paid off the remainder of the $800k promissory note owed to Renzi. Id. at *5. 
  Renzi was later convicted of public corruption, insurance fraud, and racketeering; Sandlin was convicted of a subset of these counts. Id. at *5. At sentencing, the district court applied USSG § 2C1.1 and determined the value to determine the offense level was the $200k Sandlin paid to Renzi with the check to Renzi's Arizona wine company.

Issue(s): “Renzi and Sandlin challenge the district court’s calculation of values under § 2C1.1(b)(2). They content that the district court erred by concluding that the ‘value of the payment’ was $200,000 (the amount of the debt to Renzi that Sandlin paid off), rather than zero (the net value to Renzi).” Id. at *19.

Held: “[W]e hold that the district court did not err in imposing a ten-level enhancement under § 2C1.1(b)(2) to both Renzi and Sandlin.” Id. at *20.

Of Note: Guideline Section 2C1.1(b)(2) has four prongs to calculate value – the first, used here, is “the value of the payment.” Rep. Renzi argued that the guideline commentary, and the Ninth Circuit’s recent decision in White Eagle, means that the value for the guideline calculation is the net value of the benefit. Id. at *19. 
  Here, the payment (arguably) had no value: Sandlin simply owed the Congressman a debt, and paid it. Id. Judge Tallman doesn’t buy it, and concludes that while this “net value” principle may apply to other prongs in the guideline – it doesn’t wash with the first prong. Id. at *19-*20. As Renzi argued, this may create “anomalous results” in how the guideline is interpreted – but in the Ninth, prong one of this guideline is now carved out from the “net value” analysis.

How to Use: The Renzi decision is a tome, chock full of issues – none of which turn out well for the defense. One that may come up in indigent defense is “honest services” fraud. Id. at *8.
  The Ninth jury instructions recommend that the district court “specifically describe the thing of value just as it is described in the indictment to avoid a variance.” Id. at *8. Renzi complained that the district court failed to do so here, id. at *8, but the Judge Tallman counters that “the recommendation is just that – a recommendation.” Id. 
  This argument might have more traction if there actually was a variance from the “thing of value” identified in the indictment – the Ninth concedes that was the issue in its decision in Choy – but absent that error, a vague honest services instruction won’t get much traction on appeal. Id.
For Further Reading: Q: When is it good to have more drug offenders on Probation's list? 
  A: When it is a list of potentially eligible inmates, for a drug resentencing reduction. Through some great sleuthing, the ND Cal Office of Probation has bumped up the list of (potentially) eligible offenders in the district to around 600. The District Court has also helped with the resentencing effort, adopting a welcome new order that will help expedite appointments, triage eligible candidates, and make sure all inmates seeking relief will have counsel review their application. For a summary of the new ND Cal order, and a link to the order itself, see web page here.

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


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