Saturday, March 26, 2016

Case o' The Week: Lundin - "I hear you knocking . . . "

“. . . .but you can’t come in.”
  United States v. Lundin, 2016 WL 1104851 (9th Cir. Mar. 22, 2016), decision available here.

Players: Decision by Judge W. Fletcher, joined by Judges Berzon and Bea, upholding suppression decision by ND Cal D.J. Tigar. Big win for N.D. Cal Chief Ass’t Geoff Hansen and Research and Writing Attorney Steve Koeninger.

Facts: Cops learned of a request for the arrest of Eric Lundin. Id. at *2. At 4:00 a.m. they went to Lundin’s home, stood on his porch, and knocked loudly on his door. Id. They heard crashing behind the house, ran around, and discovered Lundin in the backyard. Id. 
 A search in the backyard and patio revealed a pair of handguns that matched the description of guns used in an earlier alleged kidnapping. Id. Lundin was charged with being a felon in possession, and moved to suppress the guns. Id. at *3. 
  District Judge Tigar granted the motion; the government took an interlocutory appeal.

Issue(s): “[T]o show that exigent circumstances [relating to the crashing sounds in the backyard] justified the warrantless search, the government must show that the officers lawfully stood on Lundin’s front porch and knocked on his door.” Id. at *4. “The government contends that the officers were permitted to knock on Lundin’s door under the so-called ‘knock and talk’ exception to the warrant requirement, which permits law enforcement officers to encroach upon the curtilage of a home for the purpose of asking questions of the occupants.” Id. at *5 (citation and quotations omitted).

Held: “For two reasons, we agree with the district court that the officers exceeded the scope of the customary license to approach a home and knock . . . .First, unexpected visitors are customarily expected to knock on the front door of a home only during normal waking hours.” Id. at *5.

  “Second, the scope of the license is often limited to a specific purpose.” Id. “The ‘knock and talk’ exception to the warrant requirement does not apply when officers encroach upon the curtilage of a home with the intent to arrest the occupant.” Id. at *6.

  “Thus, the officers violated Lundin’s Fourth Amendment right to be free from unlawful searches when they stood on his porch and knocked on his front door.” Id.

Of Note: Huge, huge win. But really nothing new or novel, in this welcome opinion. Instead, Lundin is the first Ninth case to really engage with Justice Scalia’s 2013 decision in Jardines
  District Judge Tigar (and, on appeal, Judge Fletcher) considered the subjective intent of the officers when they stomped onto Lundin’s porch at 4:00 in the morning. Id. at *6. Judges getting into the officers’ heads may raise eyebrows -- we’ve all been so browbeat by Whren’s horrible admonition, “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” 
  But Judges Tigar and Fletcher aren’t plowing new Fourth fields -- it was Justice Scalia in Jardines who explained that the implied license for a “knock and talk” depended on the purpose the officers had for entering the curtilage. Id. at *6. “Knock and talk” isn’t the only Fourth exception that looks to the “actual motivations” of the officers – “special needs” and “administrative inspections” also look at the intent of the police. Id. at *6. (And, as discussed below, maybe other “implied license” cases trigger a subject inquiry?)  

How to Use: Is it per se unreasonable for officers to intrude upon curtilage at 4:00 a.m. for a “knock and talk” exception? Judge Fletcher explains it not. 
  Maybe your client “sells fresh croissants out of his home,” and “generally expects strangers on his porch early in the morning.” Id. at *5. Maybe the officers are warning your client that “a fox has gotten into the resident’s henhouse.” Id. (a lovely, subtle metaphor in this Fourth Amendment case). 
  These examples seem crazy? That’s crazy deliberate. The Ninth is signaling that it will be the rare case indeed where cops have a credible subjective intent for a “knock and talk” in the middle of the night.
For Further Reading: Cops’ subjective intent can matter for “implied license” searches. Does that new(ish) Jardines’ reality bear on implied license searches in, for example, email and Facebook? For post mulling that interesting question, see Some Thoughts on Jardines and Police Intent, available here.

Steven Kalar, Federal Public Defender ND Cal. Website at


Labels: , , , ,

Wednesday, March 23, 2016

[*Ed. note: The Arizona FPD is a party to this case.]

Habeas Corpus Resource Center v. Department of Justice, No. 14-16928 (Bea with O'Scannlain and Silverman) --- The Ninth Circuit vacated a district court's order granting a request by two public-defender agencies that represent state death-row prisoners to enjoin regulations promulgated by the Attorney General to implement Chapter 154 of Title 28 of the U.S. Code, and remanded with instructions to dismiss the lawsuit for lack of standing.

Chapter 154 is a deliberately onerous provision of AEDPA -- the Antiterrorism and Effective Death Penalty Act of 1996 -- that, well, was meant to make the death penalty more effective.  It forestalls federal review of death sentences imposed by state courts, because up until AEDPA passed federal courts had a shameful habit of setting state death sentences aside in habeas corpus proceedings.  Chapter 154 struck a bargain with the states -- if you (the states) provide competent representation to your death-row prisoners in state postconviction proceedings, we (meaning Congress) will basically force the federal courts to rubber-stamp your death sentences.

This case is about who decides whether the states have done their part of the Chapter 154 bargain.  When AEDPA was initially passed, it was left to the various courts faced with ruling on a state death-row prisoner's habeas petition to decide whether there had been competent representation in state postconviction proceedings.  By 2005, no federal court anywhere in the country had found that any state had provided competent representation in state postconviction proceedings.  So Congress amended Chapter 154 to require the Department of Justice to promulgate regulations for states to establish systems for ensuring competent representation for capital postconviction proceedings and for certifying that states had established adequate mechanisms for ensuring competent representation, thus taking control away from the federal courts and vesting it in a federal agency, with judicial review limited to the D.C. Circuit. 

The DOJ promulgated regulations to implement Chapter 154 at the end of the G.W. Bush administration, but those regulations were immediately put on hold by executive order of January 21, 2009.  DOJ promulgated new regulations in 2013, which prompted this lawsuit under the Administrative Procedures Act brought by two public-defender agencies that represent state death-row prisoners -- the Habeas Corpus Resource Center in San Francisco, which represents California death-row prisoners, and the Office of the Federal Public Defender for the District of Arizona, which represents death-row prisoners in that state under 18 U.S.C. § 3599.  (Arizona's Attorney General had been waiting on the steps outside Main Justice with an application for Arizona to be certified as compliant under the Chapter 154 regulations.)  A district judge in the Northern District of California granted summary judgment to the HCRC and the Arizona FPD, finding the regulations to be arbitrary and capricious and enjoining them from taking effect.  The DOJ appealed.

The Ninth Circuit vacated the district court's order because HCRC and the Arizona FPD lacked standing to sue under the APA, finding that the public-defender agencies had not suffered any injury by the promulgation of the regulations that could be redressed by a favorable decision.  The agencies had argued that they did not know what evidence the DOJ would rely on in making its certification decision, they could not meaningfully contribute to the certification decision, and that the standards for certification were essentially lawless.  The resulting confusion prevented the agencies from efficiently allocating their resources, because they would have to advise their clients about litigation contingencies that might not come to pass.  The panel dismissed this as a noncognizable injury, because it was essentially the same uncertainty that any lawyer faced with advising a client who might file a lawsuit about the circumstances under which the lawsuit would have to be brought.

Finally, because no state had been certified as providing competent state postconviction representation under the Chapter 154 regulations, the requests from various death-row prisoners to intervene in the lawsuit were not ripe.

The decision is here:
* Keith Hilzendeger, AFPD, District of Arizona, writing for Jon M. Sands who is out of district this week.

US v. Lundin, No. 14-10365 (3-22-16)(Fletcher with Berzon and Bea).  If you hear a rapping, softly on the door, at 4:00 a.m., you can be assured that the police will not be trying to "knock and question" as a result of this opinion.  In an important extension of Jardines, the 9th affirmed suppression of weapons found after a search conducted for exigent circumstances when the police created the circumstances.
The defendant allegedly committed offenses earlier in the evening (not helped when he supposedly kidnapped and threatened a victim known as "Granny", took her in a ride, threatened her with the wrath of the Mongols motorcycle gang, and smashed her television set to boot -- all over her son's unpaid marijuana transaction).  The police had probable cause to arrest to him, and fully intended to do so when they went to his home and knocked on the door.  It was 4:00 am.  The officers heard a crash and a clanging in the back, and so the police rushed in.  They arrested the defendant, and found weapons in plain view, inevitably, and as part of a sweep.  The district court suppressed.

The 9th affirmed.  The 9th reasoned that a "knock and question" was a legitimate police entry into the curtilage, but not, here, at 4:00 am and not with the clear intent to arrest.  The police had probable cause, but chose not to get a warrant.  Their unconstitutional actions created the exigency, and having probable cause does not make the finding of the weapons inevitable.  The panel did a nice survey of the law of "knock and question" and Jardines, the leading Supreme Court case, and called into question some old 9th precedent.

Congrats to Geoff Hansen, AFPD in Cal N, for the great win.
The decision is here:


Monday, March 21, 2016

[*Ed. note -- I filed an amicus brief in support of en banc rehearing after the three-judge panel opinion came out against the petitioner in the first summarized case.]

1.  Frost v. Gilbert, No. 11-35114 (en banc) (Kozinski with Thomas, Reinhardt, Wardlaw, Paez, and Nguyen; dissent by Tallman, joined by Rawlinson, Bybee, Callahan, and M. Smith) --- On remand from the Supreme Court, see  135 S. Ct. 429 (2014) (per curiam), the en banc panel unanimously affirmed the denial of habeas relief to a Washington state prisoner, holding that the trial judge's limitation on the scope of closing argument was harmless.  The panel also unanimously affirmed the district court's denial of the petitioner's Bradyand Napue claims, although a bare majority of the panel found that the prosecution's withholding of a cooperating witness's plea agreements constituted cause to excuse the procedural default of this claim.

The petitioner was convicted of a "string of armed robberies" that took place in 2003.  At trial, he argued alternative theories of defense -- that the prosecution hadn't met its burden, and that he acted under duress.  The trial judge prevented him from arguing both of these theories in closing argument; he chose the duress theory, which the jury didn't believe.  The Washington Supreme Court held that limiting the scope of closing argument was error, but that the error was harmless.  A three-judge panel of the Ninth Circuit agreed, but then the case went en banc, and a 6-5 en banc panel held that the error was structural and thus granted relief.  The Supreme Court reversed in a per curiam opinion, leaving the Ninth Circuit to consider the harmlessness question.  In light of the "overwhelming evidence" that the petitioner had committed the charged offenses, "any argument that the prosecution failed to meet its burden of proof would have fallen on deaf ears."  Thus the en banc panel unanimously affirmed the denial of relief on the claim involving the restricted scope of closing argument. 

So much for the first two paragraphs of the opinion.

The remainder of the opinion -- and the bulk of Judge Tallman's dissent -- concerns the petitioner's claims under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959).  These claims related to the testimony of a key prosecution witness, who had testified against the petitioner pursuant to plea agreements in two cases of his own.  The prosecution presented inaccurate testimony to the jury about the scope of these agreements, particularly failing to disclose that the witness had settled more than one pending case against him.  Without knowledge of these agreements, the petitioner failed to raise his Brady and Napue challenges both on direct appeal and in his first round of state habeas proceedings.

After his direct appeal was over, the petitioner asked the county attorney for public records about the witness and his use as a police informant.  He was told that there were about 1000 pages of responsive material, and it would cost $195 for him to obtain it.  He responded that he didn't want the entire file, just "any documents that could show any special treatment" that the witness received from the King County Attorney.  The petitioner was then told that there was no such responsive material.  He responded that he knew the witness had given statements in a particular case, and was given documents in the one case that was mentioned during his trial.  It was only after the Federal Public Defender in Seattle was appointed to his case that he received the documents.  He filed a second round of state habeas proceedings, which were dismissed as untimely, and then the federal court held the Brady and Napue claims procedurally defaulted pursuant to an adequate and independent state procedural rule.

Because a meritorious Brady claim can essentially be used to excuse its own procedural default, the en banc panel then turned to the merits of the claim.  Six judges on the en banc panel found cause to excuse the procedural default stemming from the prosecution's withholding of the necessary documents.  The fact that the petitioner was investigating his case on his own helped -- he did not have access to the public court file (unlike his appointed federal counsel), and could not be faulted for limiting the scope of his public records search when it proved too expensive for an incarcerated prisoner.  The prosecutors assigned to the witness's case should have turned over the documents to the prosecutor in the petitioner's case, who should then have turned the documents over to the petitioner.  Thus the petitioner's failure to file his Brady and Napue claims in a timely manner under state law was not his fault.

On the question of prejudice, the en banc panel unanimously found none.  The withheld information wouldn't have changed the picture of the witness's testimony before the jury, because they already knew that he had struck some kind of deal with the prosecution.

Then Judge Kozinski called out by name the state actors involved in suppressing the information relating to the witness's plea deals.  (Judge Nguyen did not join this part of the opinion, so it speaks only for a five-judge plurality.) 

Judge Tallman disagreed with the decision to examine the Brady and Napue claims at all.  Despite the fact that the petitioner's federal counsel doggedly pressed the claims at each stage of the appeal, Judge Tallman complained that the petitioner did not petition for certiorari on the issues and that the Supreme Court had not specifically remanded them for further consideration.  He also strongly disagreed with the decision to name the state actors involved.

Kudos to former Seattle AFPD Erik Levin for fighting the good fight.

The decision is here:

2.  United States v. Nickle, Nos. 14-30204, 14-30229 (Kozinski with Fletcher and Fisher) --- The Ninth Circuit vacated a conviction on drug charges where the district judge refused to accept a guilty plea because the defendant did not volunteer enough information about his criminal activity, over and above what was necessary to establish a factual basis for the plea, to the district judge's satisfaction.  The court also held that a defendant must be permitted to cross-examine cooperating witnesses about the benefits they received for their cooperation.  Finally, the court held that a judge may not direct that forfeited monies be used to fund an indigent defendant's representation under the Criminal Justice Act.  In light of all these errors, the court directed that the case be reassigned to a different district judge on remand.

The defendant was charged with drug possession and other more serious crimes.  The government offered him a plea bargain -- in exchange for his guilty plea, the government would drop the more severe charges and make favorable sentencing recommendations.  But the district judge refused to accept the defendant's guilty plea because the defendant did not "admit enough information for the judge to make a reasonable decision about his drug activity."  So the defendant went to trial, where the judge prevented him from cross-examining cooperating witnesses about the benefits they received for their cooperation.

The Ninth Circuit held that the judge had no right to refuse to accept the defendant's guilty plea under these circumstances.  The defendant did what he was required to do -- admitted to the elements of the crime.  "There is no requirement in Rule 11(b) that the defendant himself give an in-depth account of his crime or confirm that everything in the government's offer of proof is untrue."  The judge is only allowed to reject the guilty plea if he had doubts about whether the defendant understood the charges or was disputing his guilt -- and then he must explain why he is rejecting the plea.  And the judge's refusal to accept the guilty plea made the defendant worse off in this case, because he went to trial and was convicted on more serious charges.

The Ninth Circuit also held that the terms of the cooperating witnesses' deals with the government were relevant, and the district judge erred by concluding that because the government had not yet bestowed those benefits (here, by filing a motion under Rule 35 for a sentence reduction), the terms of the deals weren't relevant.  The judge further erred by failing to identify a proper basis under Rule 403 for excluding this relevant evidence.  The Ninth Circuit specifically called out the district judge here for not heeding its opinion in United States v. Larson, 495 F.3d 1094 (9th Cir. 2007) (en banc), chastizing the district judge for threatening defense counsel with sanctions for pursuing a line of inquiry that the Ninth Circuit had previously held was proper. 

These two errors, along with the district judge's order directing that forfeited monies go to pay for the defense, led the Ninth Circuit to direct that the case be reassigned.

The decision is here:
* Keith Hilzendeger, AFPD, District of Arizona, writing for Jon M. Sands who is out of district this week.

Sunday, March 20, 2016

Case o' The Week: Ninth Won't Cross A Bridge Too Far - Lemus and Extrapolating Purity When No Drugs in Evidence

  The Ninth refuses to gaze into the "crystal" ball to guess at meth purity, when no meth is in evidence.

United States v. Lemus, 2016 WL 805739 (9th Cir. Mar. 2, 2016), decision available here.

Players:  Decision by Judge M. Smith, joined by Judges Reinhardt and Paez. Big win for Deputy Fed. Public Defender Michael Tanaka, C. D. Cal. Federal Public Defender.

Facts: FBI Informant Ana Montano met Lemus in a bar. Id. at *1. After she discussed Lemus’s gang, she asked if he could supply her with ounce quantities of meth. Id. Lemus replied he had a pound for sale. Id. 
  The informant later tried to buy ounces from Lemus; he demurred, saying his source only sold it by the pound. Lemus offered the informant a sample (she declined). Id. 
  Agents followed Lemus, but didn’t conduct a traffic stop, and did not get a search warrant to search for drugs. Id. No drugs were ever seen, or recovered. Id
  Lemus was convicted after a jury trial of possession of over 50 grams of meth with the intent to distribute. Id.

Issue(s): “Lemus argues that the quantity finding is unsupported by evidence because there was no drug seized that could be tested for purity to determine whether it contained at least 50 grams of methamphetamine.” Id. at *4.

Held:It would be a bridge too far to allow a jury to extrapolate from comparison drugs that were not from activity related to the defendant or a conspiracy in which the defendant is involved. A 90% level of purity would more than suffice to support the jury’s quantity determination, if adequately connected to the drugs concerning which Lemus had constructive possession. However, the government failed to include evidence connecting that purity level to Lemus. Viewing the evidence in the light most favorable to the government, no reasonable factfinder could have determined beyond a reasonable doubt that Lemus possessed more than 50 grams of methamphetamine.” Id. at *5. 
  “Because the drug quantity fails based on insufficient evidence, the government may not retry that issue, and instead must seek resentencing based solely on the basic possession conviction, i.e., under the lowest quantity category in Federal Sentencing Guidelines § 2D1.1.” Id.

Of Note: Why is this conviction upheld? There were no drugs seized or even seen: the evidence was solely Lemus’s boasting during the meetings with the informant. Remember the good old corpus delecti rule? A defendant’s own inculpatory statements cannot – alone – support a conviction? Id. at *2. The Court explains that corpus delecti remains the rule, but (thus far) in the Ninth, it applies only as to a defendant’s confession, not to contemporaneous crime statements. Id. 
  Here, Lemus’s “pound” drug brags happened during the offense (he dismissed them as jokes during his “confession”) so corpus delicti is not a bar. 
  The Second and Tenth Circuits have (wisely) extended a corroboration requirement from the confession context to include statements made during an offense. Id. at *3. Judge Smith avoids whether to adopt that prudent requirement in the Ninth, finding that in any event there was sufficient corroboration from Lemus’s other actions during the offense. Id. 
   It thus remains an open question in the Ninth whether corpus delecti corroboration requirements extends past confessions, to offense statements.

How to Use: This is a welcome win on drug mand-mins, but read the opinion carefully. Judge Smith notes the Ninth has previously upheld convictions requiring proof of meth amounts in the absence of the drugs themselves (and thus, without purity testing) when the jury could infer the meth offered was at least as pure as some actual meth, related to the case, that could be used for comparison. Id. at *4. A great outcome, in Lemus, but beware of the caveats.
For Further Reading: For a compelling explanation of the corpus delicti rule (told in the context of a troubling murder conviction), see David A. Moran, In Defense of the Corpus Delicti Rule, available here.

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


Labels: , , , ,