Saturday, June 27, 2015

Case o' The Week: Compelling Concurrence Takes Pot-Shot at Carranza - Drug Crimes, Mens Rea, and Apprendi

Hon. Judge William Fletcher

  Bring into the U.S. what you think is five kilos of pot? Five year federal sentence, max.
  But if it turns out, unbeknownst to you, to be five kilos of meth? Ten year mand-min.
  Unfair and unjust. Judge Fletcher explains why.
United States v. Jefferson, 2015 WL 3916827 (9th Cir. June 26, 2015), decision available here.

Players: Decision by Judge Wardlaw, joined by Judge Kozinski. Very interesting concurrence by Judge William Fletcher. Hard fought appeal by AFD Kara Hartzler, Federal Defenders of San Diego, Inc.

Facts: Jefferson entered a guilty plea to a count of intentionally importing 4.65 kilos of meth into the U.S. Id. at *1. Jefferson contended that he thought he was transporting pot in his truck, and did not know the quantity. Id. At sentencing, he argued under the Supreme Court’s decisions in Alleyne and Flores-Figueroa that knowledge of drug type and quantity were elements of the offense that the government had to prove to trigger the ten-year mand-min. Id. The district court found the Supreme Court decisions had not abrogated Ninth authority, and imposed 144 months. Id.

Issue(s): “Jefferson first argues that this long established precedent [holding that the government is not required to prove that the defendant knew the type or quality of the controlled substance he imported . . . for the [mandatory minimum] penalties under § 960(b) to apply] was abrogated by the Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 (2013) . . . .” Id. at *2.

Held: “We reject Jefferson’s argument that recent Supreme Court authority requires the government to prove that the defendant knew the specific type and quantity of the drugs he imported to trigger the ten-year mandatory minimum under 21 U.S.C. § 960(b)(1)(H). Accordingly, we affirm.” Id.

Of Note: Jefferson is disappointing, though not terribly surprising. Of far more interest is Judge Fletcher’s thoughtful and thought-provoking concurrence, arguing that the Ninth Circuit’s decision in Carranza, 289 F.3d 644 (9th Cir. 2002) should be overruled. Id. at *5. For Judge Fletcher, “[t]he question presented in this appeal is whether a defendant who reasonably believed he was illegally importing several kilograms of marijuana, but in fact illegally imported several kilograms of methamphetamine, must be sentenced to the ten-year mandatory minimum term that corresponds to methamphetamine.” Id. at *6. In a compelling argument, Judge Fletcher argues that the mandatory minimum should not be triggered absent a mens rea proof as to type and amount. Id. It is precisely what we’ve been arguing since back in the Buckland era.
   With a Supreme Court increasingly concerned over sentencing schemes where the core facts need not be found by a reasonable doubt, id. at *8, and with increased bipartisan concerns about over-incarceration, the time seems ripe for an en banc court to revisit Carranza. Take a shot at a Carranza attack in your next mand-min 841 or 960 case: delivery on Apprendi’s full promise is overdue.

How to Use: Jefferson discusses the comparatively rare Section 960 “importation” charge (well, rare north of Temecula). What about the much more-common § 841(b)(1)(C) offense? The Court’s decision in Jefferson probably controls § 841 offenses as well. Section 841 is “structurally identical” to § 960, and Judge Wardlaw discusses Section 841 precedent in the context of this Section 960 holding. Id. at *3 & n.2.
For Further Reading: Last week in Johnson v. United States the Supreme Court held the residual clause of the ACCA was unconstitutionally vague and violated due process. It is an incredibly important decision – both for ACCA clients, and, by extension potentially for (alleged) Career Offenders and others who find their Guideline sentences increased for prior “crimes of violence.” 

Professor Berman is first off the mark with Johnson commentary, with some essays on possible retroactivity action and quick observations on the intriguing Supreme Court coalition that produced the decision. You can find his initial comments here.

Image of the Honorable Judge William Fletcher from

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


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Thursday, June 25, 2015

United States v. Rodriguez, No. 14-10122 (Silverman with Gould and Hurwitz) --- Following up on the decision in United States v. Gardenhire, 784 F.3d 1277 (9th Cir. 2015), the court held that the trial evidence in this case was insufficient to sustain a conviction for attempting to interfere with the safe operation of an aircraft, in violation of 18 U.S.C. § 32(a)(5) and (a)(8). Because the convictions on these counts (which carried a much higher sentence) affected the district court's decision to impose the maximum sentence for the defendant's conviction for aiming a laser pointer at an aircraft, 18 U.S.C. § 39A, the court also vacated the sentence on that count and remanded for resentencing.

The defendant was a "knucklehead" who shone a laser into the sky at a passing helicopter just to see how far the laser would point. There was no evidence that he willfully attempted to interfere with the operator of an aircraft, with the specific intent of endangering others or with reckless disregard for human life. Blinded by the light is not willful interference.

The decision, which makes for easy reading because of its colloquial style, is here:

Saturday, June 20, 2015

Case o' The Week: Ninth Maps Out New Hearsay Rules - Lizarraga-Tirado, Hearsay, and Machine-Generated Evidence

Consider these tacks with coordinates on a Google Earth map.
  Notice that one tack is north of the yellow U.S. - Mexico border, and one is south? 
  One of these two tacks isn't hearsay - it was generated by a “machine.” (Google algorithms in a Finnish server farm). The second tack, by contrast, was created on the map by a deliberately untruthful “person.” Fed. R. Evid. 801(a).
  Can you tell which tack is which?
  The Ninth can. United States v. Lizarraga-Tirado, 2015 WL 3772772 (9th Cir. June 18, 2015), decision available here.

Players:  Decision by Judge Kozinski, joined by Judge Graber and D.J. Ponsor.

Facts: Lizarraga-Tirado was charged with illegal reentry after being arrested at night near the border. Id. at *1. At trial he disputed he had crossed the border, and argued the agents had arrested him in Mexico. Id. An agent testified that she had documented the GPS coordinates of the arrest on a handheld device. Id. The government then introduced a Google Earth satellite image to illustrate the location of those coordinates. Id. The image (appended to the decision), has a “tack” that lists numerical coordinates that are in the U.S. Id. at Appendix A. The defense objected to the image on hearsay grounds. Id.

Issue(s): “Defendant claims that both the satellite image on its own and the digitally added tack and coordinates were impermissible hearsay.” Id. at *2.

Held: 1. “Because a satellite image, like a photograph, makes no assertion, it isn’t hearsay.” Id. 2. “A tack placed by the Google Earth program and automatically labelled with GPS coordinates isn’t hearsay . . . Here, the relevant assertion isn’t made by a person; it’s made by the Google Earth program . . . Because the program makes the relevant assertion – that the tack is accurately placed at the labeled GPS coordinates – there’s no statement as defined by the hearsay rule. In reaching that conclusion, we join other circuits that have held that machine statements aren’t hearsay.” Id. at *3.

Of Note: Judge Kozinski, a tech aficionado, writes an interesting but somewhat troubling decision. How did the Ninth know that Google Earth tacked the tack on the map, instead of an agent placing it there and labeling it with the coordinates? That fact wasn’t established at trial. See id. at *1. 
  The Court deduces this critical fact (which makes a huge difference in the hearsay analysis) by running Google Earth itself, and comparing the results with the map introduced in evidence. Id. at *2 (taking judicial notice of the fact that the tack was automatically generated). The problem is that the Google-generated tack, and a human-created tack, are actually identical and are indistinguishable on a Google Earth picture. See image above.  
   Judges independently running software and taking judicial notice is uncomfortable territory. Evidence and tech gurus (and maybe I.P. folks?) will want to take a very close look at the Ninth’s techie initiative here.
  The little Lizarraga-Tirado decision could become a Big Case, as cell service providers comply with FCC E911rules, turn from cell site location methods, and rely more heavily on satellite location technologies (creating data ripe for federal agent conversion into Google Maps).

How to Use: Chafing at the idea of our Robot Overlords getting a hearsay pass? Take heart, John Connor: the fight goes on. Concerns that a “machine might malfunction, produce inconsistent results or have been tampered with” . . . “are addressed by the rules of authentication, not hearsay.” Id. at *3. Judge Kozinski reviews Fed. R. Evid. 901(a), and notes that the proponent must show that the machine is reliable and correctly calibrated. Id. at *3. That authentication challenge wasn’t raised in this case, so that fight survives for another day.
For Further Reading: Big week, for federal evidence. On June 18, the Supreme Court issued its latest Crawford decision in Ohio v. Clark. For thoughtful discussion of the decision (and the divisions that underlie the unanimous outcome), see Lyle Denniston, Opinion Analysis: Crawford narrowed, Atkins solidified, available here 

Image from Google Maps 

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


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Friday, June 19, 2015

[Ed. note -- The Arizona FPD handled the trial and capital sentencing proceedings that are the subject of the IAC claims in this case.  In an effort to avoid a perception of bias, I'm summarizing both the majority and dissenting opinions more closely than I otherwise would.  This case was a hard-fought battle by Deputy Federal Public Defenders Gia Kim and Jonathan Aminoff of the Central District of California.]
Mitchell v. United States, No. 11-99003 (Silverman with Wardlaw; partial dissent by Reinhardt) --- A divided panel of the Ninth Circuit affirmed the denial of a § 2255 post-conviction motion filed by a federal death-row prisoner, holding that defense counsels' guilt- and penalty-phase strategies were the product of professionally reasonable investigations under Strickland v. Washington, 466 U.S. 668 (1984).

As murders go, these were gruesome ones -- the 20-year-old petitioner and his 16-year-old codefendant carjacked a 63-year-old woman and her granddaughter, stabbed the woman 33 times, drove 40 miles to bury the body, slit the girl's throat to eliminate a witness to the crime, and when the girl did not appear to be dead, smashed her head with heavy rocks.  They returned later to conceal evidence; the codefendant decapitated the bodies, and together the two buried the separate parts of the bodies in separate locations.  The two burned the victims' personal belongings, and the petitioner cleaned the knives with alcohol in order to remove traces of blood.
Ultimately, the petitioner was convicted on eleven counts, including two counts of first-degree murder and two counts of carjacking resulting in death.  This crime occurred on the Navajo reservation.  Because the Navajo Nation has not opted into the federal death penalty scheme, the first-degree-murder counts were ineligible for the death penalty.  But because carjacking is a crime of general applicability, the Navajo view on capital punishment did not stop the government from seeking the death penalty against the petitioner here.  (The codefendant was statutorily ineligible because of his age.)  Nor did the decision of the United States Attorney for the District of Arizona not to seek the death penalty prevent the government from seeking a death sentence, because Main Justice overrode this decision.  (The Arizona US Attorney's unwillingness to seek a death sentence in this case contributed to the GW Bush Administration's later decision to fire him.)  On direct appeal, a slightly different panel (Judge Wardlaw replaced Judge Rymer after her death) affirmed the conviction and sentence by a 2-1 vote, rejecting claims that the petitioner was improperly excluded from the sentencing proceedings, that the prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986), by striking the only African-American member of the jury pool, and that the prosecutor committed misconduct in closing arguments.

This brings us to the claims of ineffective assistance of counsel here.  With respect to the guilt phase, the petitioner contended that defense counsel should have presented a defense of voluntary intoxication.  Defense counsel investigated the scene of the crime, but found no evidence of drinking or drug use.  The petitioner "adamantly" denied being drunk or high at the time of the crime, and gave a "highly detailed account" of the crime to FBI agents.  The codefendant invoked his Fifth Amendment privilege in response to defense subpoenas.  The manner in which the crime was committed "was inconsistent with a supposed inability to form intent due to intoxication."  Nor was there any other medical evidence of a blackout at the time of the crime.  Counsel "did not ignore the possibility of an intoxication defense;" rather, they "debated it among themselves and only then, given the lack of evidence of intoxication and the strong circumstantial evidence to the contrary, did they decide that they would be unlikely to convince a jury to accept voluntary intoxication as a defense to these crimes."  Thus the court affirmed the denial of the petitioner's guilt-phase IAC claim.
With respect to the penalty phase, the majority held that the defense mitigation strategy was the product of a professionally reasonable investigation.  As part of that investigation, counsel hired a mitigation specialist, who prepared a 42-page, single-spaced social history report that detailed the petitioner's struggle to cope with his mixed-race heritage while growing up on the reservation, his history of alcohol and drug use, and his history of gang involvement and other kinds of violence, including abuse of animals.  Defense counsel reviewed the report and met with their mitigation specialist to discuss it.  Defense counsel also hired a team of mental-health experts.  One psychologist diagnosed the petitioner "as a sociopath and warned counsel against calling her to testify."  A neuropsychologist performed tests, but they came back "normal" and reflected that the petitioner had "average intelligence."  Defense counsel reviewed the neuropsychologists' report, discussed it with him, and ultimately concluded not to have him testify either.

"So, if not mental health or substance abuse mitigation, then what?" the majority asked.  The majority identified three "themes" of the defense mitigation presentation.  First, defense counsel sought to portray the petitioner as a human being whose life was worth sparing.  In support, they presented the testimony of numerous family members, friends, and teachers, who all testified as to the petitioner's good character and potential.  Second, defense counsel portrayed the codefendant as the mastermind of the crime, pointing out that a few days after the murders here he participated in another carjacking and robbery of a trading post.  They also reminded the jury that because of his age, the codefendant would not receive the death penalty at all.  Third, defense counsel explained to the jury how the Navajos oppose the death penalty, and presented supporting documentation.  The majority said that although the petitioner "claims that the investigation was inadequate, he has come forward with almost no new evidence not known to defense counsel and fully considered as possible mitigation."  The majority characterized a diagnosis and supporting declaration from a new expert, obtained in post-conviction proceedings, as simply a "difference of medical opinion, not a failure to investigate."  Nor did counsel perform deficiently by failing to call the petitioner's mother at the penalty phase, because she walked out on a defense interview and told the FBI that the petitioner belonged in prison.  Finding no deficient performance, the majority affirmed the denial of the penalty-phase IAC claim.
Judge Reinhardt dissented from the decision not to grant penalty-phase relief.  His dissenting opinion begins with the observation that this is not the typical case in which the federal government (as opposed to state governments) imposes the death penalty.  The petitioner here was not the Boston Marathon bomber or a "drug overlord [] who order[ed] numerous killings."  This was not "a case of national significance."  The victims did not want the death penalty.  The Navajo Nation did not want the death penalty.  The United States Attorney did not want the death penalty.  But because of the federal charge of carjacking resulting in death, long-standing Ninth Circuit precedent that predated the crime in this case and that Judge Reinhardt was not free to disregard as a member of a three-judge panel allowed the death penalty in this case.  The petitioner here was "the first object" of the GW Bush Administration's "aggressive expansion of the federal death penalty" into jurisdictions that do not ordinarily impose it.  To Judge Reinhardt, the "arbitrariness of the death penalty in this case is apparent."

Judge Reinhardt devotes 14 pages of his opinion to the idea that defense counsel rendered ineffective assistance at the penalty phase.  In his view, the "good guy" theme "had no chance of convincing a jury to return a sentence other than death" against the backdrop of the circumstances of the crime.  In his view, defense counsel should have portrayed the petitioner as someone "whose moral sense was warped by abuse, drugs and alcohol or mental incapacity."  The witnesses that defense counsel used to present the "good guy" defense offered only a "superficial impression" of the petitioner, "and most of them had not had any contact with him since well before the time of the crimes.  Moreover, the conclusion from this 'evidence' that [the petitioner] was a 'good guy' seems to have been one that could have been drawn by no one other than his counsel."  He faulted counsel for inadequately preparing these witnesses to testify -- "Many had no contact with defense counsel prior to short meetings on the day of their testimony -- meetings at which counsel primarily showed them photos of the victims' bodies and asked whether they would still testify."  The prosecution was able to exploit these witnesses' testimony to present aggravating evidence. 
As for the other two themes, in Judge Reinhardt's view they "could not and did not redeem counsel's worthless and implausible 'good guy' defense."  He saw the other two themes as incompatible with both the "good guy" theme and the theme he felt counsel should have presented, and he further saw them as "inadequately developed and halfheartedly presented to the jury."  As for the codefendant being the mastermind there was little evidence of this presented to the jury.  As for the theme that the Navajos opposed the death penalty, this "could have been quite compelling, particularly if combined with evidence of Mitchell's drug and alcohol addiction."  But (in Judge Reinhardt's view) all counsel did was read a letter from a Navajo tribal official to the jury.  Counsel did not, he said, explain that the victims' family asked the prosecutor not to seek the death penalty.  Nor did counsel explain why Navajo culture opposes the death penalty. 

Moreover, Judge Reinhardt saw counsel's mitigation investigation as incomplete.  The mitigation specialist had said that the petitioner was a heavy user of crystal methamphetamine and recommended following up with a psychopharmacologist, but defense counsel did not do so.  Defense counsel could have explained why Native American clients commonly deny drug use; indeed, a defendant's "lack of cooperation" with counsel "does not eliminate counsel's duty to investigate."  After all, whether the defendant was intoxicated at the time of the crime was not the sole substance-abuse mitigation theory that could have been presented.  Judge Reinhardt faulted the majority for dismissing this angle, noting the many cases in which relief had been granted for failure to pursue such a theme, and pointing out that one FBI agent didn't believe the petitioner when he said that he wasn't drunk at the time of the crime.  "Most important," though, "the weak evidence of drug and alcohol use that counsel haphazardly introduced was deployed for the wrong purpose."  Evidence that the petitioner had been a drug addict from an early age would have explained how he became the person who committed this particular crime. 
Moreover, there was evidence of sexual abuse in the family history, which might have affected the petitioner's perception of himself (in addition to his mixed-race heritage).  It was curious for the majority to dismiss this history, Judge Reinhardt said, because the Ninth Circuit routinely affirms lifetime restrictions on contact by sex offenders with children.  This history might have explained why the petitioner had been abandoned at an early age and why the home was not the best environment for a child's emotional development. 

As for the mental-health evidence, Judge Reinhardt said that it could have presented through witnesses other than the expert whom counsel had decided not to call to the stand.  The post-conviction mental-health expert explained that posttraumatic stress resulting from child abuse was part of the petitioner's mental health; defense counsel could have presented that to the jury.
Judge Reinhardt also concluded that presenting additional mitigating evidence might have affected the jury's decision to impose a death sentence.  Many of them had found mitigating factors, as indicated on the special verdict forms.  Missing mental-health and substance-abuse evidence have led to reversals of death sentences in other cases.  And all it took was to persuade one juror that death was not the appropriate sentence.

Finally, Judge Reinhardt pointed out that because this was a federal case, there was no need for any reluctance to overturn a sentence imposed by the courts of a different sovereign -- AEDPA's limitation on habeas relief played no part in the decision to affirm the denial of relief here, after all.  The only other sovereign implicated here opposes the death penalty.  In Judge Reinhardt's view, it would be perfectly appropriate for a federal court to prevent the execution of a federal prisoner, especially in these days of waning support for capital punishment in general.

The decision is here: