Thursday, April 30, 2015

United States v. Gardenhire, No. 13-50125 (Wardlaw with Paez and Ponsor (D. Mass.)) ---
The Ninth Circuit vacated an above-Guidelines sentence imposed after a defendant's guilty plea to pointing a laser beam at an aircraft, holding that the sentencing judge failed to make any findings to support the base offense level of 18 for recklessly endangering the occupants of the aircraft under U.S.S.G. § 2A5.2. The court directed that the case be reassigned to a different district judge on remand.

The defendant here was a bored teenager living in Burbank, California, and the court called his crime a "misguided, teenage prank." His friend gave him a laser, warned him not to point it at anyone's eyes. Together they started playing with it, pointing it at parked cars, stop signs, and other objects. The defendant lived with his grandparents near the Burbank airport, and so his "playing" with the laser ultimately ended with him pointing it at two aircraft -- a seven-passenger Cessna jet and a police helicopter. The beam hit the pilot of the Cessna in the eye, temporarily blinding him, although he recovered and landed the jet safely. The police helicopter ultimately traced the source of the laser. The defendant was arrested, made statements to the FBI, and ultimately pleaded guilty to one count involving the Cessna in exchange for dismissal of the count involving the police helicopter.

The crime to which the defendant pleaded guilty was so new that no provision of the Guidelines expressly covered it, so the presentence report used what was, in the probation office's view, was the most closely analogous Guideline, U.S.S.G. § 2A5.2, interference with a flight crew. The unadorned base offense level for this crime is 9, but if the defendant recklessly endangered an aircraft then the base offense level is 18. WIth 3 levels off for acceptance of responsibility, his total offense level was 15, for a range of 18-24 months. The judge rejected his case for post-plea diversion and imposed a 30-month sentence, but the court of appeals granted him release pending appeal.

Because the recklessness finding doubled the applicable base offense level, it was required to be proved by clear and convincing evidence. But here the record was "devoid of evidence, let alone clear and convincing evidence, that [the defendant] was aware of the risk created by his conduct." The sentencing judge concluded from the FBI reports that the defendant intentionally aimed the beam at the aircraft, and thus knew that it could reach them (the airport was half a mile away from his house). But this did not show any awareness of the consequences of striking the aircraft -- an 18-year-old man told not to aim the beam at someone's eyes does not necessarily understand that the beam could reach the pilot of an aircraft half a mile away, and nothing in the record showed that he understood the physics behind lasers, specifically that the beam can intensify as it shines through the glass of a cockpit. Simply put, the sentencing judge made no findings that the defendant was aware of the risks associated with aiming a laser beam at an aircraft. This was procedural sentencing error.

Nor was the error harmless simply because the judge said he would impose the same sentence should he get the case back on remand. That was a reason he gave for denying the defendant's request for bail pending appeal, and had nothing to do with the lack of findings to support the recklessness determination. The court read this statement as an indication that the judge would be unable to set aside his preconceived notions of the sentence that should be imposed, which is why the court directed reassignment to a different judge on remand.

The opinion ends with a lament about the broad range of conduct to which § 2A5.2 applies -- from aiming a laser at an aircraft to assaulting a flight attendant to terrorist activity.

Congratulations to Deputy Federal Public Defender Matthew Larsen of the Central District of California.

The decision is here:

Tuesday, April 28, 2015

United States v. Torralba-Mendia, No. 13-10064 (Murphy (E.D. Mich.) with Tallman and Rawlinson) ---
In this appeal involving a conviction for conspiracy to commit alien smuggling, the NInth Circuit affirms, finding no reversible plain error stemming from the admission of expert testimony from two Border Patrol agents and no error in admitting investigation reports (form I-213) about the smuggled aliens.

The defendant was a driver for a shuttle company based in Tucson, Arizona, that would transport aliens from the border to stash houses, and only release the aliens upon payment from their family members for their services. Agent Burrola testified at trial as an expert about the common practices of alien-smuggling operations -- how they escorted people across the border, avoided detection by immigration officials, used safe houses, and employed code words. Agent Frazier offered similar expert testimony, as well as lay testimony about what he observed as the case agent investigating this particular smuggling operation. Finally, the government introduced I-213 forms describing the smuggled migrants and how they returned to their respective countries of origin; the I-213 forms were redacted to exclude the manner in which the migrants were apprehended (presumably by the defendant or others in the smuggling operation) and any statements the migrants may have made to immigration officials.

There was no objection at trial to the expert testimony of Agent Frazier, so the court reviewed these contentions for plain error. The court held that the district court erred in failing to instruct the jury about how to use expert testimony from the government's case agent when that agent also testifies as a lay witness about his involvement in the investigation. See United States v. Vera, 770 F.3d 1232 (9th CIr. 2014). Moreover, his lay testimony -- much of which consisted of narrating video surveillance of the smuggling operation -- was proper because he had seen the videos dozens of times and assisted the jury in spotting details they might otherwise have missed and understanding the code words used by people on the video. But on plain-error review, none of these issues were reversible. The case agent's expert testimony was bifurcated (in the sense that the prosecutor's questions involving the agent's specialized knowledge were not intermingled with questions involving his role as investigating agent), he provided adequate foundation for his testimony, and substantial evidence apart from the agent's testimony connected the defendant to the conspiracy.

The district court likewise did not err in admitting Agent Burrola's expert testimony. It helped the jury understand how smuggling operations work in general, and was not overly prejudicial because it put the defendant's actions in context.

Form I-213 is properly admitted under Rule 803(8) as a public record and, as such, does not contain testimonial information for purposes of Crawford v. Washington, 541 U.S. 36 (2004).

The decision is here:


Luna v. Kernan, No. 12-17332 (Watford with Gould and Friedland) ---
The Ninth Circuit vacated the dismissal, as time-barred, of a California state prisoner's § 2254 petition, and remanded for further proceedings. The court held that appointed federal habeas counsel's handling of the proceedings amounted to egregious professional misconduct, an extraordinary circumstance that warrants equitable tolling of the AEDPA statute of limitations. The court then remanded to develop a record on whether the petitioner had been diligently pursuing his rights.

The petitioner is a California state prisoner convicted of first-degree murder and other crimes and serving a life sentence. The operative petition in this appeal was filed more than six years after the AEDPA limitation period expired.

The petitioner's effort to seek federal habeas relief from his conviction and sentence started off well enough. He filed a federal habeas petition three months after his conviction became final. The district court even appointed counsel to assist him in litigating it. But appointed counsel's actions undermined the petitioner's effort to timely seek review of his claims. Because only one of the petitioner's claims was fully exhausted, he would need to use the stay-and-abeyance procedure of Rhines v. Weber, 544 U.S. 269 (2005), in order to preserve his right to review of fully exhausted claims within the statutory deadline. And indeed the petitioner had also filed a pro se state habeas petition in superior court. With the benefit of appointed counsel, hopefully he could manage to exhaust those claims.

But that is not what counsel did. After the superior court denied state habeas relief, counsel voluntarily dismissed the pending § 2254 petition in federal court. He did so because he thought that none of the claims in the § 2254 petition were exhausted (and if that were true, dismissal would be required). But counsel was wrong -- there was one exhausted claim in federal court. Nevertheless, because motions for voluntary dismissal are automatically granted, the district court closed the case. Only then did counsel proceed to exhaust the claims in state court, albeit very slowly -- he filed in the California Court of Appeal some three months after being denied in superior court, and then filed in the California Supreme Court some two years after being denied by the Court of Appeal. What's worse, counsel waited four years after seeing the California Supreme Court deny relief before re-filing in federal court. And when he did, he tried to amend the petition in the closed case rather than initiating a new civil case. All the while, counsel was assuring the petitioner that his rights were being protected.

The district court appointed new counsel to represent the petitioner, who sought equitable tolling necessary to render the new petition timely. The magistrate judge did not conduct a hearing and based his decision to deny equitable tolling on only some of the written correspondence between the petitioner and his former counsel. Based on this limited set of evidence, the district court denied equitable tolling and dismissed the petition as untimely.

In light of the court's precedents and the Supreme Court's decision in Holland v. Florida, 560 U.S. 631 (2010), and Maples v. Thomas, 132 S. Ct. 912 (2012), the court found that former counsel's actions amounted to "egregious attorney misconduct" rather than "garden-variety negligence," and held that extraordinary circumstances existed that prevented timely filing. But the court remanded for further findings on the question of diligence, because the record did not contain the full extent of correspondence between the petitioner and his former counsel and thus was not adequately developed to allow a determination about whether the petitioner was actively pursuing his right to relief during the six-year delay.

The decision is here:

Sunday, April 26, 2015

Case o' The Week: Undone by a "moment of mental clarity" - Alvarez-Ulloa and Insanity Defenses

 “Still crazy after all these years,” is not enough.
 “Still crazy for all these years?” asks the Ninth, instead.
United States v. Alvarez-Ulloa, 2015 WL 1784183 (9th Cir. Apr. 21, 2015), decision available here.

Players: Decision by Judge Tashima, joined by Judges Paez and D.J. Block. Hard-fought appeal by AFPD Keith Hilzendeger, D. Az.  

Facts: Jesus Alvarez-Ulloa was a Mexican citizen and boxer. Id. at *1. Found in the U.S. after being removed, he was charged under 8 USC § 1326. Id. At trial, the defense presented evidence that Alvarez-Ulloa suffered from chronic traumatic encephalopathy, which – according to a defense expert – could have rendered him legally insane. Id. at *3. The court instructed the jury with the standard insanity instruction (“the defendant was unable to appreciate the nature and quality or the wrongfulness of his acts.”) Id. 
   After several hours of deliberation, the jury sent a note asking, “if the defendant had any moments of mental clarity during [the entire time he was here illegally] . . . does that negate the defense of insanity?” Id. The court referred back to the original instruction – and still no unanimous verdict. 
  The court then gave the following supplemental instruction: “The insanity defense would be negated if, after entering the United States, the Defendant ceased to be insane for a long enough time that he reasonably could have left the United States, and he then knowingly remained in the United States for that time.” Id. at *4. The jury returned a guilty verdict 37 minutes later. Id.

Issue(s): “Ulloa . . . contends that the district court’s supplemental instruction impermissibly coerced the jury’s verdict in violation of the Sixth Amendment.” Id. at *7.

Held:To succeed in his defense, Ulloa . . . needed to prove that he was legally insane for virtually the entire duration of his illegal stay, such that he could not have reasonably left the United States. We therefore conclude that the district court’s supplemental instruction was substantively correct.Id. at *7.

Of Note: Judge Tashima starts with the substantive holding above – that the supplemental instruction was correct. That holding appears to be decision of first impression: for the continuing offense of being "found in" the United States, the defendant must be insane for the entire duration of the crime. For illegal reentry – where the crime continues during that entire length of the time in the U.S. – that temporal requirement is a substantial obstacle to the insanity defense. Illegal reentry is probably the longest federal “continuing offense” crime – but it ain’t the only one. Escape from federal custody, and failure to appear, are both dust-gathering continuing crimes. See United States v. Gray, 876 F.2d. 1411, 1419 (9th Cir. 1989). Alvarez-Ulloa merits some thought, when contemplating an insanity offense for a continuing offense that can span over months (or years).

How to Use: The defense also characterized the court’s supplemental insanity instruction as unduly coercive. Id. at *8. The Ninth thought not:” “The supplemental instruction was brief, direct, and does not appear to have been directed at any particular juror. The district court did not err in giving the supplemental instruction.” Id.  Important to note, however, that Judge Tashima emphasizes the instruction allowed conviction if the mental defect relented – the instruction took no position on whether the defect had relented. Id. at *8. It is a fine read, but one that makes a difference for supplemental (“dynamite” or Allen-type) charges: verboten for the district court to “attempt to recast the evidence in a light more favorable to the prosecution.” Id. at *8.
For Further Reading: The long, expensive, and tiresome saga of the Bonds prosecution has (hopefully) come to a close. The en banc court’s brief opinion, and the much longer concurrences, can be found here. 
  What exactly is the full scope of 18 USC § 1503? “[H]ow many San Francisco lawyers [does the government plan] to throw in jail?” Id. at 2. (J. Fletcher, concurring). All superb questions, that must wait for another day and another case (and, one hopes, another district). 
  Congratulations to Dennis Riordan and Ted Sampsell Jones for their masterful appellate advocacy and a big hometown win.

Image of Paul Simon album cover from!PaulSimonStillCrazyAfterAllTheseYearsCover.jpg

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



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Friday, April 24, 2015

[Ed. note: I am counsel for the defendant in the second decision summarized here.]

United States v. Hornbuckle, Nos. 12-10541, 12-10615 (Christen with Fletcher and Davis (CA4)) ---
The court affirmed the sentences of two sisters who pleaded guilty to child sex trafficking, in violation of 18 U.S.C. § 1591. The court held that the sentencing judge properly applied two enhancements under U.S.S.G. § 2G1.3, one for "commercial sex acts" and one for undue influence over the victims.

The defendants, who are sisters, along with other siblings and their mother, ran a prostitution ring that employed both adults and children. After one of the child prostitutes came to the attention of the FBI through a confidential source, the sisters were indicted on 13 counts, including 10 counts of child sex trafficking. They pleaded guilty in exchange for dismissal of all but two of the child sex trafficking counts. The district court held an extensive sentencing hearing at which three witnesses testified -- one of the sisters' adult employees, one of their child employees, and a government "expert on prostitution culture." Based on the evidence at the hearing, the judge computed the sisters' Guidelines ranges based on two enhancements -- one under U.S.S.G. § 2G1.3(b)(2)(B) for undue influence over the children, and one under § 2G1.3(b)(4)(A) because the minors had engaged in a sex act. One sister got 151 months, and the other 188 months, both at the low end of their respective Guidelines ranges.

On the undue-influence enhancement, the court held that the record "easily" supported it. The sentencing judge heard "abundant" evidence of the sisters' use of violence, intimidation, and control over the minor victims. One of the sisters "forced all three victims to work when they did not want to and controlled every aspect of [their] lives, including time and place of work, choice of clothing, and access to money and food." The other sister, for her part, may have been less violent, but she meted out more punishment to the victims. Nor did evidence that the victims engaged in prostitution voluntarily undermine the sentencing judge's finding, because there was ample evidence that the victims were not free to leave once they began working for the sisters.

The court's explanation of why the other enhancement was proper is somewhat technical. The upshot is that there was no double-counting, because no element of a § 1591 violation requires proof that the minors actually engaged in sex acts.

The decision is here:

United States v. Alvarez-Ulloa, Nos. 13-10500, 13-10501 (Tashima with Paez and Block (EDNY)) ---

The court affirmed a conviction following a jury trial for illegal reentry and a related supervised-release revocation. The court held that the defendant did not show purposeful discrimination for any one of his three Batson challenges; that the trial judge's supplemental instruction about the insanity defense was legally correct and not unduly coercive; and that the instruction did not constructively amend the indictment by expanding the temporal scope of the offense.

The defendant was, for 12 years, an amateur and professional boxer; after being knocked out in a fight, his behavior began to change, and his legal troubles began. He was also a Mexican citizen, having been born in Nogales, Sonora, although he grew up and lived most of his life in Phoenix, Arizona. He was deported in 2010, and nine months later was arrested at a resort in Phoenix after attempting to sneak into the place where a professional football team was staying. Charged with illegal reentry, he raised an insanity defense, arguing that brain damage made it impossible for him to appreciate the nature of his actions (specifically, that he was not permitted to remain in the United States).

During voir dire, the prosecutor struck three Latino prospective jurors, and the judge rejected the defendant's Batson challenges on the ground that the prosecutor's proffered reasons for striking them were "facially neutral." During jury deliberations, the jury deadlocked about how to apply the insanity defense to the continuing offense of illegal reentry. To break the deadlock, the judge instructed the jury that the insanity defense would be negated if the defendant ceased to be insane for a long enough period of time to reasonably leave the United States, and then he knowingly remained. The jury returned with a guilty verdict 37 minutes after receiving this supplemental instruction.

The court faulted the trial judge for not reaching the third step of Batson -- whether the defendant had shown that the prosecutor purposefully discriminated against a racial minority through the use of a peremptory strike. But the record was well-developed, and so the court proceeded to examine the record to see if the defendant could carry this burden. In the court's view, he could not. The court did not see any similarly situated non-Latino jurors that were not subjects of peremptory strikes, and so held that the trial judge correctly overruled the defendant's Batson challenges.

On the jury-instruction issue, the court first held that it was legally correct. Illegal reentry is a continuing offense, and so the court approved the idea that an illegal-reentry defendant who raises an insanity defense must show that "he was legally insane for virtually the entire duration of his illegal stay." Moreover, the instruction was not coercive, because it did not suggest that the jury should view the evidence unfavorably to his side and was not directed at any particular juror's difficulty.

Nor was there a constructive amendment of the indictment. Circuit law was plain to the court that the indictment need not allege the entire period of time during which the defendant was illegally present in the United States, because the "found in" element encompasses this entire period of time.

The decision is here:

United States v. Walls, No. 13-30223 (Bea with Fisher and Murguia) ---

The court rejected a challenge based on the Commerce Clause to entirely local sex-trafficking offenses under the Trafficking Victims Protection Act, 18 U.S.C. § 1591.

The defendant was tried on numerous counts, including four counts under § 1591, which prohibits sex trafficking "in or affecting interstate or foreign commerce." There was evidence presented at trial that the victims' services were advertized on Craigslist, which had servers in California, and that they used condoms manufactured in Virginia to service clients in Washington state. At the government's request, the jury was instructed that "an act or transaction that crosses state lines is 'in' interstate commerce," and that "an act or transcation that is economic in nature and that affects the flow of money in the stream of commerce to any degree 'affects' interstate commerce." Defense counsel did not object to this instruction. The jury convicted, and the defendant received a 23-year sentence.

The defendant's argument was premised on the idea that the Supreme Court's recent decision in Bond v. United States, 134 S. Ct. 2077 (2014), might have taken away Congress's ability to regulate the purely local aspects of sex trafficking. The court disagreed, because sex trafficking affects interstate commerce in the aggregate, and so Congress was exercising the fullest extent of its commerce powers when it enacted § 1591. The jury instruction was thus proper under Gonzales v. Raich, 545 U.S. 1 (2005). Nor did the instruction direct a verdict on the interstate-commerce element of the crime; it merely defined the terms "in" and "affecting" interstate commerce, without creating a presumption that the jury had to find that element proved. (The court noted at the outset that the claim was subject to plain-error review, but since it didn't find any error it didn't need to reach the other prongs of the plain-error standard.)

The decision is here:

Sunday, April 19, 2015

Case o' The Week: Mail Theft Defendant hit with Murphy's Law - Gonzalez Becerra and Guideline Mail Theft Victims

 No monetary loss, no fraud guideline victim?
 No dice.
United States v. Gonzalez Becerra, 2015 WL 1637864 (9th Cir. Apr. 14, 2015), decision available here.

Players: Decision by visiting 10th Senior Circuit Judge Michael Murphy, joined by Judges Gould and Tallman. Hard-fought appeal by CD Cal AFPD Michael Tanaka.

Facts: A traffic stop lead to a search; the search ultimately produced stolen mail from 250 individuals. Id. at *1. Gonzalez Becerra ultimately pleaded guilty to possessing stolen mail. Id. The court imposed a four level bump because the offense involved “50 or more victims” under USSG § 2B1.1(b)(2)(B) – despite the fact that the victims did not sustain any actual monetary loss. Id. The defense made a “narrow, fact-based challenge” to the increase – focusing on whether the mail had in fact been delivered. Id. at *3. On appeal, the defense made a legal argument that that the commentary’s definition of victim in § 2B1.1 was inconsistent with the guideline itself. Id.

Issue(s): “[Gonzalez-Becerra] contends the district court committed legal error when it applied the definition of ‘victim’ set out in Application Note 4(c) to conclude his offense involved at least fifty victims. In particular, he asserts the district court erred in applying the definition from the commendatory because the commentary is inconsistent with the text of § 2B1.1.” Id. at *3.

Held:The special definition of the term ‘victim’ set out in Application Note 4(c) regarding the theft of undelivered mail is perfectly consistent with the use of the that term in the text of § 2B1.1. Thus, the district court did not err, let alone plainly err, in increasing Gonzalez Becerra’s offense level by four levels because he possessed the stolen mail of at least fifty individuals. USSG § 2B1.1(b)(2)(B).” Id. at *5.

Of Note: While the standard of review ultimately doesn’t matter here (see the holding above), the opinion’s musing on plain error is worth a read. Id. at *3 - *4. Judge Murphy goes to fair lengths to characterize the sentencing objections to the guideline in the district court as factual objections – but characterizes the defense’s appellate argument about “victim” as a legal objection. Id. Judge Murphy then concludes, “[b]ecause the record makes clear the legal issue Gonzalez Becerra advances was not raised below, he can only obtain relief on appeal by demonstrating the district court committed plain error.” Id. at *4. Because “plain error” review is one of the government’s favorite gambits to dodge our appellate arguments, this interpretation triggering that standard is worth reflection (and is a reminder to argue broadly in district court objections).

How to Use: The gist of the defense argument was that § 2B1.1 is a fraud guideline, so the term “victim” should refer to someone who suffered monetary loss. Id. at *4. That argument didn’t get much traction: the Court concludes that the 2001 rewrite of the guideline expanded it beyond the fraud context. Id. Once the Court views § 2B1.1 views more broadly, it finds it “easy to reject [the defense’s] assertion that the term ‘victim’ is tied exclusively to pecuniary loss.” Id. at *5. For better or worse, Gonzalez Becerra contains a fairly in-depth discussion of what constitutes a guidelines “victim” for mail theft cases: dig through the case when your next sad meth addict gets nabbed with a postal key.  
For Further Reading: The Ninth isn’t the only one mulling fraud victims. As noted in an early memo, the Sentencing Commission has adopted proposed amendments to § 2B1.1 that purport to focus more on the harm to the victims, rather the number of victims. For a broad and accessible article describing the changed guideline, see the Reuters piece here. For a much more detailed, and very helpful discussion of these (and other) amendments, see the work of the National Sentencing Resource Counsel here.

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


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