Monday, August 31, 2015

Two opinions today -- the Ninth Circuit affirmed the grant of a judgment notwithstanding the verdict to a federal-court defendant charged with destroying bank records, and also affirmed the denial of a California state prisoner's habeas petition.  Also noted is a grant of en banc rehearing in a case involving an IAC claim involving the failure to challenge a sentence imposed under California's three-strikes law.

1.  United States v. Katakis, No. 14-10283 (NR Smith with Berzon and Collins (D. Ariz.)) --- The Ninth Circuit affirmed the grant of a posttrial motion for judgment of acquittal, holding that the evidence presented at the entire trial was insufficient to sustain the defendant's conviction for obstruction of justice under 18 U.S.C. § 1519. 

The government suspected that the defendant and his business partner were rigging bids at foreclosure auctions.  The government subpoenaed his bank records, which led the defendant to try to erase the hard drives on four computers using software called DriveScrubber.  The government's investigation revealed email that was not on these computers, so it indicted the defendant for obstruction of justice under 18 U.S.C. § 1519, and bid-rigging under 15 U.S.C. § 1.  (The jury convicted on bid-rigging, and he did not appeal that conviction.) 

The indictment was written in such a way that the government had to prove actual deletion of the emails, which meant that it had to present expert testimony about how information is deleted from a computer hard drive.  (The details are discussed in the opinion.)  The government's expert explained how these emails could have been "double-deleted," while the defendant's expert explained that this "double-deleting" process did not work as the government's expert said it did, and that in any event he could not find the emails the government alleged that the defendant had deleted in the place where the government's expert said they would be found on the defendant's computers.  In its rebuttal case, the government's expert agreed with the defendant's expert.  Thus, "by the time of its closing argument, the government's primary theory of the case had collapsed."  The jury convicted on the obstruction count, but the trial judge granted the defendant's posttrial written motion for judgment of acquittal.

Under § 1519 and the government's theory here, the entire trial record had to contain sufficient evidence to allow the jury to conclude that the defendant actually deleted the emails.  (Review is of the entire trial record because of the procedural posture of the Rule 29 motion filed in the district court.)  Once the government's expert retracted his initial theory of the case and agreed with the defendant's expert, however, no reasonable juror could conclude that the defendant had used DriveScrubber to irretrievably remove the incriminating email from the computers.  The government articulated what it characterized as a reasonable inference to sustain the guilty verdict, but the panel disagreed that those inferences were logically supported by the evidence.  There was no evidence from which the jury could conclude that DriveScrubber had operated in the manner that the government was relying on to show actual deletion.  (Indeed, in a footnote the panel suggested that this failure undermined the mens rea element of the crime as well.)  The panel was concerned that the government's evidence of bad motive would lead the jury to overlook the gaps in the evidence of actual deletion.  Nor, in light of how most email clients work, does simply pressing the "delete" key create liability under § 1519; the message does not disappear, but simply moves from one folder to another.

The decision is here:

2.  Creech v. Frauenheim, No. 13-16709 (Paez with Tashima and Block (EDNY)) --- The Ninth Circuit affirmed the denial of a California state prisoner's § 2254 habeas petition, holding that the trial evidence was sufficient to sustain the convictions for assault with a firearm and felony child endangerment, and that the sentencing procedure complied with Cunningham v. California, 549 U.S. 270 (2007).

This case involves an episode of domestic violence.  Angry that his father-in-law was trying to keep him away from his wife and children, the petitioner shot at his wife and children while they were inside her father's home.  He loaded the shotgun with birdshot, and said "shooting through things... wasn't his intent."  Nevertheless, his wife's stepsister and stepmother heard glass shattering at the time of the shooting.  Dueling experts testified at trial about whether the birdshot was able to penetrate glass or human flesh.  The jury convicted the petitioner of multiple counts of assault with a firearm, shooting at an inhabited dwelling, and felony child endangerment.  The sentencing judge exercised his discretion under California's determinate sentencing scheme to impose the upper term on some of the counts, applied firearm enhancements, and ran some sentences consecutively for a total sentence of 31 years and 4 months.

The evidence was sufficient to sustain the convictions for assault and child endangerment.  Under California law, once the defendant has "attained the means and location to strike immediately," he has the present ability to injure required for the assault convictions, even if he were armed only with birdshot.  These facts easily supported both the assault and child-endangerment convictions.

After Cunningham v. California, in which the California determinate sentencing scheme was found to violate the rule of Apprendi v. New Jersey, the state legislature amended the scheme to provide that the choice of sentences at the upper, middle, or lower terms was within the judge's discretion.  The California Supreme Court later upheld this amendment as satisfying the requirements of Apprendi.  See People v. Sandoval, 161 P.3d 1146 (Cal. 2007).  The state appellate court's decision to affirm the petitioner's sentence in light of Sandoval was not unreasonable.

The decision is here:

3.  Daire v. Lattimore, No. 12-55667 --- On Friday the Ninth Circuit granted a California state prisoner's petition for en banc rehearing in a case involving the alleged failure to present mitigating evidence at a hearing under People v. Superior Court (Romero), 917 P.2d 628 (Cal. 1996), which allows a judge to impose a sentence outside of California's three-strikes sentencing scheme based on mitigating evidence.

The three-judge panel's opinion is here:

Sunday, August 30, 2015

Case o' The Week: Ninth Endorses Defenders' Lack of Restraint(s) - Blanket shackling policies for non-jury proceedings

  How do you feel about full five-point restraints on detained defendants, regardless of individualized danger, for almost all non-jury appearances?
  The Federal Defenders of San Diego, Inc. feel the same way.

  Fortunately, so does the Ninth.
United States v. Sanchez-Gomez, 2015 WL 5010701 (9th Cir. Aug. 25, 2015), decision available here.

Players: Decision by Judge Schroeder, joined by Judge Nguyen and DJ Zouhary. Big victory for Executive Director Reuben Cahn, and AFD’s Sherleen Charlick and Ellis Johnston III, Federal Defenders of San Diego, Inc.

Facts: The U.S. Marshal for the S.D. of California wrote to the Chief Judge in 2013, asking for a policy of full restraints on defendants. Full or “five point” restraints are leg shackles and handcuffs attached to a belly band. Id. at *1. The Court deferred to the Marshal and permitted five-point restraints for all non-jury proceedings except guilty pleas, sentencing hearings, and at the request of an individual district judge. Id. The justification given for the policy was the higher volume of defendants in the district, an apparent increase in violence among pretrial detainees, and limits on Marshal staffing. Id. The Federal Defenders challenged the policy on behalf of three inmates (though none were detained by the time the appeal got to the Ninth). Id.

Issue(s): “We agree that a policy that permits routine use of shackles is not ‘forbidden’ in non-jury proceedings under the . . . Due Process Clause; it does not follow, however, that under our precedent shackles may always be used routinely before a judge without any justification or showing of necessity. We have ruled that such a generalized shackling policy must rest on an ‘adequate justification of its necessity.’ Howard, 480 F.3d at 1008. We therefore consider whether the Southern District’s policy meets that standard.”

Held: In Howard we considered a policy authorizing use of leg shackles during appearances before a magistrate judge in the Roybal Courthouse in Los Angeles. We did not reach the question of whether due process requires an individualized determination in a jury proceeding, because we were dealing with non-jury proceedings. We did recognize that the adoption of a general shackling policy in a nonjury setting must be justified. After examining both the extent of the policy and the asserted need for the policy, we held that the policy was adopted ‘with an adequate justification of its necessity.’ Id. at 1008. The government contends that Howard authorizes the general policy at issue here, a policy of using full restraints during most appearances before a judge. Howard does not do that. This policy is more restrictive of defendants’ movement, applies more broadly, and was adopted with less judicial consideration of its justification than the policy in Howard.” Id. at *2-*4. 

“We do not suggest that judges are necessarily required to document the need for a shackling policy in any particular manner, as for example, with statistics or the infeasibility of less restrictive alternatives. We hold only that in this case, judges should have provided greater justification for adopting such a policy.” Id. at *4. We therefore hold that a full restraint policy ought to be justified by a commensurate need. It cannot rest primarily on the economic strain of the jailer to provide adequate safeguards.” Id.

Of Note: These appellants were no longer detained. Why not moot? Because the harm “is likely to be repeated yet will not last long enough to be judicially reviewed; thus, the exception to the mootness doctrine for cases that are ‘capable of repetition but evading review’ applies. Id. *1.

How to Use: Great win for SoCal. Does this same close analysis apply to shackling of an individual client at the Marshal’s request? Maybe not so much. Take a close look at Judge Schroeder’s discussion of the Second Circuit’s Zuber decision. Id. at *4. Dicta, arguably, but that passage likely signals the (different) analysis for individual shackling decisions.
For Further Reading: Do Ninth Circuit decisions control in the Southern District? Presumably, but “[f]or now, a marshals official said the policy will continue as is.” For an article on this San Diego policy, the Ninth’s decision, and the potentially surprising aftermath, see article here

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

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Thursday, August 27, 2015

United States v. Mujahid, No. 11-30276 (8-27-15)(Christen with Wallace and Wardlaw).  Can the federal sexual assault statutes reach into state or local jail facilities housing federal inmates?  Yes, holds the 9th, against a facial challenge.  The defendant was arrested for being a prohibited possessor for a firearm.  While facing this charge, he was held in a state facility (Alaska) with which the US Marshals contracted for housing.  While being held, he sexually assaulted fellow inmates.  He was then charged with a various federal sexual assault offenses (2241, 2242, and 2244).  He was convicted of four counts of aggravated sex abuse at trial.  On appeal, the defendant renewed his argument that federal jurisdiction was not proper under Article I of the Constitution and the 10th Amendment. Police power, especially under the statute's 2006 amendments, rested with the states.   The 9th upheld federal jurisdiction.  There is a federal interest in protecting federal inmates, and it falls squarely within the "necessity and proper" clause of Congressional power.  Such shared federal jurisdiction with the states is proper and commonplace.  A court, moreover, as a matter of law, may determine whether a state faculty at which federal inmates are housed, are being so held under a contract or by agreement with a federal agency.
The decision is here:
United States v. Christensen, No. 08-50531 (8-25-15)(Clifton with Fisher; partial concurrence and dissent by Christensen).  This is an appeal from various RICO convictions stemming from illegal wiretaps and investigations conducted by a private investigator.  There were many issues raised; some relief, all intertwined with this involved case.   However, the most interesting issue was the excusing of a juror (#7) by the court.  The court excused the juror because of his refusal to deliberate, or his belief in nullification, coupled with statements he supposedly made about taxes and wiretapping.  He denied making these statements.  The court sided with the other jurors who said juror #7 did, and found that the juror was lying.   The majority looks to the district court to assess credibility, and that falls to demeanor.  However, as the dissent stresses, there was obvious disagreement, and feelings were running high.  The court never asked the juror is he could or would follow the law.  That was the error.  The dissent is good at stressing the need for juror secrecy, and the deference courts must give to jurors and their assessment of the evidence.

The decision is here:
United States v. Sanchez-Gomez, No. 13-50561 (8-25-15)(Schroeder with Nguyen and Zouhary).  Unshackle the defendants!  The 9th held that the US Marshals cannot use "economic strain" on its staff as justification for a blanket policy of full restraint for defendants who appear in court.  The court in Cal Southern has deferred to the recommendation by the Marshals that pretrial detainees be in full restraints (five point) for every court appearance in a nonjury context: initial, hearings, and so forth. 

Deck v. Missouri, 544 US 622 (2005) forbids shackles or fetters before a jury in a guilt phase.  The principles underlying this policy include the presumption of innocence, the right to counsel (fetters may hinder), and the need for a dignified judicial proceeding.  The 9th noted that this concerns jury proceedings, and it does not forbid fetters in a nonjury proceeding; however, this does not mean that such shackles may always be used without any justification or showing of necessity.  Such a policy must be justified.

The Marshals in Cal Southern justified the five point restraints on a couple of security incidents, the volume, and the stresses and strains on the US Marshals staff.  The policy approved in a prior case, United States v. Howard, 480 F.3d 1005 (9th Cir 2007) differed from here:  In Howard, the shackles were only leg restraints, limited to first appearances, and only before magistrate judges.  The policy in Cal Southern was, again, for five point restraints, at all nonjury proceedings, before all judges. The situations in the courthouses were also different.

The 9th stated that the US Marshal simply could not rely on staffing strains. The other security reasons (demographics, a few incidents, volume) did not rise to support such a blanket policy.  There needs to be greater justification.

Congrats to Ellis Johnston and Sherleen Charlick of the Fed Defenders of San Diego for a humane and resounding win.

The decision is here:


Sunday, August 23, 2015

Case o' The Week: Close Enough for Government Work - Chadwell, and Gun "In Connection" with Drugs

Client undone by drugs + gun.
United States v. Chadwell, 2015 WL 492536 (9th Cir. Aug. 19, 2015), decision available here.

Players: Decision by DJ Hayes, joined by Judges N.R. Smith and Owens.  

Facts: Chadwell was pulled over and the cop’s car video started. Id. *1. He was arrested for being a “habitual traffic offender,” and was agitated when the police started to search the car. Id. The search revealed cocaine in the driver’s side floorboard, a loaded pistol between the front seats, and an unloaded pistol in the glove box. Id. “All of these events were video recorded.” Id. Chadwell stipulated to admission of the guns and ammo and to the admission of 19 minutes of the police video. Id. 

On the first day of trial, the cop testified, then the government played the video and rested. Id. The next day the jury asked to watch the video, and then returned a guilty verdict. Id. at *2. 

At sentencing, the government introduced testimony regarding the location of the drugs and the guns in the car. Id. Another officer testified about Chadwell’s drug sale to a C.I. eleven days before the stop. Id. The court found beyond a preponderance that the gun had been used “in connection” with the possession of drugs for sale, and applied the four offense-level increase in USSG § 2K2.1(b)(6)(B). Id.

Issue(s): “Chadwell contends that the district court . . . . erred in applying the four-level enhancement under . . . U.S.S.G. § 2K2.1(b)(6)(B) for using or possessing any firearm in connection with another felony offense to calculate his advisory guideline range.” Id. at *1.

Held: Taking all of this evidence into consideration, there was ample support in the record for the district court’s conclusion. The district court did not abuse its discretion when it applied the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). Id. at *6.

Of Note: The primary issue in this case was not the guideline challenge, but an interesting (albeit unsuccessful) attack on the jury’s view of the police video. Id. at *3-*5. Chadwell argued the court abused its discretion by allowing the jury to (again) watch the 19-minute video, alone in the jury room, without the parties or defendant being present. Id. at *3. The Ninth rejected the arguments that this was an undue emphasis on specific evidence, or that it violated Chadwell’s right to be present “at every trial stage.” Id. at *4 (discussing Fed. R. Crim. Proc. 43(a)). As police video and bodycams increase, Chadwell is an early indication of how this evidence will be treated in federal criminal trials.

How to Use: The Court explains that the facts of Chadwell of the sentencing issue are “materially indistinguishable” from the Ninth’s ‘96 Polanco decision. Id. at *5. In Polanco, however, the defendant sold drugs then returned to his car where the gun was stashed. 93 F.3d at 567. In Chadwell, the drug sale was eleven days before the arrest. 2015 WL 492536, at *2. In Polanco, a large amount of cash in the car supported the proof that the gun was used in connection with drug sales. 93 F.3d at 567. In Chadwell, no cash was found in the car or on the defendant. 2015 WL 492536, at *2. In Polanco, the drug-dealing defendant was the only one in or around the car. 93 F.3d at 569. In Chadwell, there was also a male passenger (presumably sitting next to the loaded gun). Id. at *1. 

What other facts supported this whopping +4 bump in Chadwell? The (arguably irrelevant) fact that Chadwell was “under a restraining order for threats of violence,” and the fact that Chadwell made “every effort to keep the police from . . . searching the vehicle.” Id. at *5. The four offense-level increase in § 2K2.1(b)(6)(B) is a doozy, and Chadwell’s bar to prove that “connection” is distressingly low. The opinion merits a close read when drugs lurk around a gun case (and some careful thought when potential sentencing exposure).
For Further Reading: For a thorough (though Commission-centric) discussion of the “in connection” specific offense bump under § 2K2.1(b)(6)(B), see “Firearms Primer” at pgs. 21 – 23, available here.  

“Guns and Drugs” sign from

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


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