Sunday, May 31, 2015

Case o' The Week: Ninth Nod re: Overbroad - Martinez and Taylor Analysis

Forget the finches: for proof of evolution, study the Ninth’s Taylor analysis.  
  United States v. Martinez, 2015 WL 3406178 (9th Cir. May 28, 2015), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges William Fletcher and (visiting) Tenth Circuit Judge Ebel. Big win for AFD Rebecca Pennell, Federal Defenders of Eastern Washington & Idaho.

Facts: Martinez was convicted of third-degree child molestation in violation of Wash. Rev. Code. § 9A.44.089. Id. He was later ordered removed by an I.J. Id. A decade later, Martinez was indicted for being found in the U.S. after removal, in violation of 8 U.S.C. § 1326. Id. Martinez moved to dismiss the indictment, on the theory that the Washington statute was broader than the generic offense of sexual abuse of a minor “because it criminalized sexual contact involving the touching of a minor over clothing.” Id. The state offense was thus not an agg felony, argued the defense. Id. The district court relied on Jimenez-Jimenez and denied the motion, holding the Washington offense was a categorical match because the act of sexual touching of a 14 or 15 year old, by a defendant 48 months older, was “maltreatment of a child” and was therefore categorically “abuse.” Id.

Issue(s): “[ ] Martinez challenges the district court’s denial of his motion to dismiss an indictment alleging that he was found in the United States subsequent to an order of removal in violation of 8 U.S.C. § 1326. Martinez asserts that the underlying removal order was invalid because his conviction for third-degree child molestation in violation of Wash. Rev. Code § 9A.44.089 (2001) was not aggravated felony.” Id. at *1.

Held: “Because recent developments in the law support Martinez’s claim, we reverse the district court’s denial of Martinez’s motion to dismiss the indictment.” Id. “We conclude that Martinez’s conviction for third-degree child molestation does not categorically qualify as an aggravated felony.” Id. at *3.

Of Note: What, actually, did Martinez do with the minor to merit the Washington state conviction? Who knows? The facts of the Prior are (appropriately) not discussed in the opinion, because Judge Rawlinson correctly refuses to go down the road of the modified categorical analysis. Id. at *4 (quoting Descamps). The government can’t muck about with the underlying conviction facts, because the state statute at issue “has a single, indivisible set of elements and is missing elements of the generic definition of sexual abuse of a minor.” Id. at *4 (quotations and citations omitted). Offense facts and the modified categorical analyses are generally steps we like to avoid when doing the Taylor dance. This Martinez discussion of “indivisible” is a good addition to the complex Taylor compendium.

How to Use: What is the generic definition of “sexual abuse of a minor?” Judge Rawlinson works through “a series of opinions” that have articulated “an evolving generic definition of this offense.” Id. at *2 -*3. “Evolving” is a good description – since the 2008 Estrada-Espinoza en banc decision, the Ninth (with some welcome guidance from the Supremes in Descamps) has defined and redefined this particularly tricky offense. Judge Rawlinson provides a clear and brief history of this changing area of law: a useful starting point when delving into a Section 1326 or sentencing challenge to the categorical use of a state prior.
For Further Reading: Martinez illustrates what we all know: priors are often the issue in a federal case. That’s particularly true when the government tries to throw a prior into the gooey mess of the ACCA’s residual clause. Whether that residual clause survives constitutional muster is very much a live issue right now, as the Supreme’s take another bite at Johnson. For a good summary of Johnson and its current status, see Paul Rashkind’s excellent Supreme Court update here
   Object and object encore if the residual clause is at issue in your case – this term may bring welcome news.

Image of Finch evolution from

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


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Sunday, May 24, 2015

Case o' The Week: Ninth Shines Light on on Dark Oakes - Sentencing Manipulation and Sentencing Entrapment

“Tommy’s [Oakes] three-year assignment to NET-5 was a natural fit, and one of the most productive on record. His gift of gab, coupled with his tenacity and ceaseless energy, helped him successfully cultivate more informants and cases than most people in their right minds would take on. Tommy received recognition for two major cases he initiated and helped orchestrate: Operation Triple C, and Operation Showdown. Over 20 individuals were arrested during Triple C, many of whom were subsequently convicted of federal drug charges.”
    Yuba County Sheriff’s Department Peace Officer of the Year 2008, available here

  “[T]he Court is deeply troubled by the participation of Detective Oakes, the investigation fell just shy of constituting outrageous government conduct.” United States v. Boykin, 2015 WL 234605 (9th Cir. May 18, 2015), decision available here.

Players: Decision by N.D. Texas Judge Lynn, joined by Judges Hawkins and Rawlinson.

Facts: Local Yuba City and California state law enforcement agencies, and the Feds (including the FBI) conducted a meth investigation with a team dubbed “NET-5”. Id. at *1. Their first confidential source, Rachel Rios, purchased meth from Boykin. Rios was then was deactivated when the government learned she was still selling meth. Id. NET-5’s second confidential source, Crystal Housley, bought more meth from Boykin. Housley was then arrested on federal fraud charges (though she was not deactivated for two months). Id. Turns out that Confidential Source Housley had a close relationship with one of the NET-5 members, Detective Thomas Oakes. Id. at *1. (Detective Oakes gave Housley his home phone number, and got NET-5 to pay for Housley’s apartment and utilities). Id. at *4 & n.5. Detective Oakes gave “inaccurate” testimony at Boykin’s trial, when Oakes incorrectly represented that C.S. Housley was immediately deactivated when she was arrested on federal charges. Id. at *2. In addition, Detective Oakes’ brother was friend of Boykin and Boykin’s brother – yet Oakes continued to be involved in the investigation. Id. Boykin was convicted after trial, and moved for a reduction based on “sentencing entrapment.” Id. at *5. That motion was denied, and Boykin was sentenced to 210 months. Id. at *3. Boykin appealed, “arguing that the district court erred by not granting a downward departure for sentencing manipulation.” Id. at *3.

Issue(s): “To prove sentencing manipulation, a defendant must show that the officers engaged in the later drug transactions solely to enhance his potential sentence . . . Cases from other circuits have granted relief for sentencing manipulation in only the extreme and unusual case involving outrageous governmental conduct.” Id. at *5 (internal quotations and citations omitted).

Held: “Boykin fails to demonstrate that the district court’s findings were clearly erroneous . . .  [A]lthough the Court is deeply troubled by the participation of Detective Oakes, the investigation fell just shy of constituting outrageous government conduct.” Id. at *6.

Of Note: This wasn’t “sentencing manipulation,” explains the Court, because the “government extended its investigation to build a stronger case against Boykin.” Id. at *6. Why did the government need to “extend its investigation?” Because “the government’s first two confidential sources . . . . were both convicted of serious offenses during the period they were acting as confidential sources against the Boykins.” Id.  
  Boykin is a tough decision for the defense. In a nutshell, the opinion’s holding seems to be that law enforcement can stack up drug sale amounts (and sentencing exposure) while it runs through a series of dirty informants until a clean-enough cooperator finally delivers. Though the “deeply troubled” language is welcome, the Court’s ultimate holding provides little disincentive for law enforcement in an investigation that was half keystone cops, half “only in the movies.” Id. at *2 & n.3.

How to Use: Was your client disinclined to sell large amounts, but was pushed to do so by a snitch? That’s “sentencing entrapment:” the focus is on your client and his or her intent. 
  By contrast, did law enforcement continue a series of drug sales to meet a threshold amount and trigger mandatory minimums? That’s “sentencing manipulation:” the “judicial gaze” should focus primarily “on the government’s conduct and motives.” Id. at *5. 
  In Boykin, Judge Lynn works through the differences between sentencing entrapment and sentencing manipulation– worth a careful read if either theory is at play in your case.
For Further Reading: Sentencing entrapment, sentencing manipulation, and imperfect entrapment: easily confused, with significantly different tests and remedies. For a helpful memo untangling the trio, see Ass’t Clinical Prof. Katie Tinto, Sentencing Manipulation / Sentencing Entrapment, available here.

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


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Tuesday, May 19, 2015

Zavala v. Ives, No. 13-56615 (Reinhardt with Wardlaw; concurrence and dissent by Callahan).
The 9th grants habeas relief to a federal prisoner under 28 U.S.C. § 2241 for credit for time spent in ICE custody prior to being charged with an immigration offense.  He should have received credit.  Callahan concurs and dissents, arguing that the majority expanded the test for credit to include credit for "potential" charges to be filed.

Congratulations to Deputy Federal Public Defender Ashfaq Chowdhury of the Central District of California.

The decision is here:

US v. Boykin, No. 13-10248 (Lynn, D.J., with Hawkins and Rawlinson). 
The 9th affirms conviction for drug offenses, finding sufficient evidence.  It also affirms the sentence, but spends considerable time being "troubled" over alleged government sentencing manipulation.  The police seemed to keep the investigation going, along with the drug trafficking, in order to increase the sentence.   One officer ran a CI and had an unusually close relationship that called into question his motives.  The 9th finds the actions "wrong" but not so outrageous as to require a departure.  The 9th distinguishes between sentencing entrapment (going for a higher offense) and manipulation (increasing the sentence by repeated buys).  The discussion is worth reviewing.  This is a disconcerting case where again the government can essentially set the sentence by its actions.

The decision is here:




Sunday, May 17, 2015

Case o' The Week: Right to Fire Sparks Ninth's Ire - Brown and the Sixth Amendment Right to Counsel

 Brown, with no Green, results in a colorful decision.
United States v. Brown, 2015 WL 2215899(9th Cir. May 13, 2015), decision available here.

Players: Decision by Judge Berzon, joined by Judges Reinhardt and Gould. Big win for D. Nev. AFPD Jason Carr.  

Facts: Brown was charged with a number of child-porn-related offenses. Id. at *1. Weeks before trial, retained counsel filed a motion to withdraw from the case and substitute a public defender. Id. 
  After a hearing, the Honorable District Judge Robert Clive Jones denied the motion, explaining to Brown “he would not receive nearly as good a defense were the court to appoint a public defender.” Id. at *4. 
  Trial was continued, Brown was convicted, and he was sentenced to 180 months.

Issue(s): Were there sufficient reasons to deny Brown’s right to discharge his retained counsel and be appointed CJA counsel?

Held: “We now reiterate Rivera–Corona’s intertwined rules: (1) A defendant enjoys a right to discharge his retained counsel for any reason ‘unless a contrary result is compelled by ‘purposes inherent in the fair, efficient and orderly administration of justice,’ Rivera–Corona, 618 F.3d at 979 (quoting United States v. Ensign, 491 F.3d 1109, 1115 (9th Cir.2007)), and (2) if the court allows a defendant to discharge his retained counsel, and the defendant is financially qualified, the court must appoint new counsel for him under the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A. Because no sufficient reason justified the district court’s denial of Richard Carl Brown's right to discharge his retained lawyer or its refusal to appoint counsel, we vacate Brown's convictions and remand for a new trial.” Id. at *1.

Of Note: In what has quickly became the most e-mailed footnote in history, Judge Berzon valiantly defends the Defenders: “[W]e completely disagree with the district court's assessment of federal public defenders, who, in our experience, typically provide the highest quality representation . . . . Nor are we alone in that opinion: A survey of 457 federal district and appellate judges, published as part of an article co-authored by Judge Posner of the Seventh Circuit, rated advocacy by public defenders in federal court significantly higher than that provided by privately retained attorneys . . . and even prosecutors.” Richard A. Posner & Albert H. Yoon, What Judges Think of the Quality of Legal Representation, 63 Stan. L.Rev. 317, 322, 327 (2011).”

How to Use: Footnote 5 has received the (well-deserved) attention, but the entire opinion is a welcome and important decision on indigent defense. Judge Berzon carefully discusses the Ninth’s key Rivera-Corona holding, and works through the ramifications when retained counsel is fired and Mr. Green is no longer in the case. See id. at *6 & n.3 (discussing CJA appointment of previously retained counsel).  
  Brown a worthy read for both retained counsel (who occasionally must part ways with their clients), and for CJA counsel (who may inherit that client). The key principle in this specific scenario is that in this context, “the extent-of-conflict review is inappropriate.” Id. at *5. Put differently, clients have the right to fire their retained counsel, “for any reason or [for] no reason.” Id. at *5. (NB: that’s a constitutional right, to boot. Id. at *5) This is a very different rule than the conflict analysis for appointed counsel. 
   Brown is a thorough and well-written decision that gives clear guidance to both retained and CJA counsel in these unfortunate appointment scenarios.
For Further Reading: Ninth Circuit Judge Stephen Reinhardt (on the panel) and Nevada's District Judge Jones have crossed paths before. The jurists have exchanged candid views regarding their respective decisions in Nevada’s ballot option. See article here.  
  This Townley v. Miller election litigation is an interesting backdrop to this Brown case (particularly Judge Reinhardt’s concurrence to the September 5, 2012 order). See order here

Image of “Mr. Green” from Imageof the Honorable Judge Stephen Reinhardt and the Honorable District Judge Robert Jones from

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


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