Sunday, July 31, 2016

Case o' The Week: Defendant talks, or Ninth balks - Prigge and requirement to testify to preserve FRE 404(b) objections

   What’s the only way to challenge the district court’s improper in limine ruling on the use of a prior conviction at trial?
  Take the stand, suffer the government’s improper use of a prior conviction, and pray the appellate court sorts it out if convicted.
Hon. Judge Richard Tallman
United States v. Prigge, 2016 WL 4056066 (9th Cir. July 29, 2016), decision available here.

Players:  Decision by Judge Tallman, joined by Judge Graber and SD NY Judge Rakoff.

Facts: Prigge conspired with others to move cocaine from Central America to Chicago. [Ed. Note: Westlaw (annoyingly) failed to add * cites to this short opinion. Thus, except for a footnote, the page cites are omitted in this Case ‘o The Week memo]. 
  Before trial, the government gave notice of its intent to use a very old state drug-trafficking conviction at trial under FRE 404(b), if Prigge testified. The defense moved to exclude use of this prior at trial for any purpose, because of its age. Prigge argued that the timing requirements and balancing test of FRE 609(b) apply to the use of a conviction under FRE 404(b), if the prior is more than ten years old. 
  The district court refused to rule on Prigge’s motion to exclude until trial. Prigge didn’t testify and was convicted.
Issue(s): “Terance Taylor Prigge appeals his conviction by jury trial for various drug trafficking and money laundering offenses. Prigge asks that we reverse his conviction because of . . . the district court’s failure in advance of trial to preclude the government from impeaching Prigge with his fourteen-year-old prior conviction if he testified.”

Held: “We decline to reach this argument and instead hold that Prigge's claim is barred on appeal by Luce v. United States, 469 U.S. 38 (1984).” Id. (footnote omitted). 
  “We hold that Prigge's first assignment of error is unreviewable on appeal because he did not testify.” “Here, Prigge's prior conviction was never introduced at trial because he chose not to testify. Thus, we hold that Luce bars his claim on appeal.”

Of Note: Prigge is a new (and disappointing) rule in the Ninth: to challenge a FRE 404(b) ruling on appeal, the defendant has to testify. It is an extension of the Supreme Court’s similar rule at to FRE 609 evidence in Luce v. United States, 469 U.S. 38 (1984)
  In Luce, Justices Brennan and Marshall joined in the Court’s holding, but specifically limited the decision to FRE 609. 469 U.S. 43-44 (Brennan and Marshall, JJ, concurring). The Ninth here rejects the two Justices’ narrow reading of Luce, and expands the “testify to appeal” rule in the Ninth past FRE 609 and to FRE 404(b).  

How to Use: Although the Court claimed it wasn’t reaching Prigge’s main argument, it then went on to explain that Prigge was “confused about the relationship between Rule 404(b) and Rule 609(b).” Id. at *1 & n.3. Judge Tallman rejects FRE 609(b)’s “onerous standards for admission” for convictions admitted for non-character purposes under FRE 404(b). Id. 
  Do you understand the limitation on the admission of a duty old prior for “non-character purposes under FRE404(b)?” Neither will the jury, who just sees a convicted felon charged with another crime in your trial. Take a hard look at footnote 3 when worrying about the admission of old priors at trial.  
For Further Reading: Prigge expands the use of prior convictions by forcing the defendant to go to trial and testify to preserve an objection over their admission under FRE 404(b). 
  The expanded use of priors against defendants in trial, however, runs directly contrary to increasing concerns about the reliability of priors as indicators of culpability (and particularly raises problems given our rising awareness of racial profiling). 
  For a very compelling analysis challenging the impeachment of defendants by the use of their prior convictions under FRE 609, see Anna Roberts, Impeachment by Unreliable Conviction, 55 B.C.L. Rev. 563 (2014), available here.

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


Labels: , , , ,

Thursday, July 28, 2016

US v. Wanland, No. 14-10170 (7-27-16)(Owens with Wallace and Schroeder).  This was a tax evasion case, with the defendant a civil lawyer who didn't pay taxes.  The 9th affirmed the convictions, rejecting the argument that partnership levies were not wages or salaries" and could not be garnished.

The decision is here:


Tuesday, July 26, 2016

Curiel v. Miller, No. 11-56949 (7-25-16)(en banc)(Murguia; Reinhardt concurring and Bybee concurring).  In an en banc opinion, the 9th found the state petitioner's federal habeas timely under AEDPA.  It was timely because the California Supreme Court, in denying the petition, cited precedent dealing with deficient pleading.  Thus, it can be taken as being decided on its merits, and not denied for being untimely. 

The concurrences go to the practices of the state supreme court.  In recognition of deference, the staggering number of state petitions, and the role of state courts, Reinhardt urges the California State Supreme Court to certify certain classes of cases that would benefit from federal court review.  In this manner, the federal courts can protect constitutional rights.
Bybee concurs to express frustration at the communication between the state and federal courts as to the scope of the state court's denial of petitions.  He calls for the state court to clarify its rulings and what it decides, or doesn't, rather than forcing the federal courts to read the tea leaves and take hints.

The decision is here:
Jones v. Harrington, No. 13-56360 (7-22-16)(Bybee with Kozinski; O'Scannlain dissenting).  The police interrogated petitioner for hours about a fatal gang. Petitioner finally said: "I don't want to talk no more." The police followed up, and then continued interrogation, which led to incriminating statements.  The statements were the linchpin of the state's case.  Convicted, petitioner appealed, only to have the state courts find that the statement was ambiguous, based on statements made after petitioner said: "no more."  The district court denied the claim.  The 9th though found that the statement should have ended the questioning.  The majority of the panel held that the statement, "I don't want to talk no more," was clear.  The questioning had to stop at that point.  The majority said this was unambiguous.

As to prejudice, the prosecutor used the subsequent statements extensively in its case, and arguments.  The statements formed the "backbone" of the state's case.  As such, the unconstitutional statements were prejudicial.  The case was reversed and remanded.

The dissent said the under AEDPA, the state courts' finding of ambiguity as to the statement was not unreasonable.

Congrats to AFPD Kathryn Young of the Cal Central FPD Office (L.A.).

The decision is here:

Monday, July 25, 2016

Ayala v. Chappell, No. 13-99005 (7-2-16)(Christen with Kozinski and Bybee). The 9th affirms the denial of a capital habeas petition.  The main IAC focus was on the decision not to abandon a trial strategy (no gang involvement) in light of changing testimony (recanting of an exoneration).  The 9th held that it was not IAC to stick with the trial strategy, and that a pivot away from no gang involvement in a triple homicide in the course of trial could be considered a strategic and tactical decision that was reasonable. The 9th also found the state courts' rejection of witness intimidation claims and Brady disclosure to be reasonable.

The decision is here:

Sunday, July 24, 2016

Case o' The Week: One to Savor, on Appellate Waiver --Torres, Appellate Waivers, and Illegal Sentences

 The government cannot coerce a defendant to waive the right to appeal an illegal sentence.
 (Troubling that our government tries: reassuring that the Ninth rebuffs).
   United States v. Jimmy Torres, 2016 WL 3770517 (9th Cir. July 14, 2016), decision available here.

Players: Decision by Judge Murguia, joined by Judges Wardlaw and W.
Hon. Judge Mary H. Murguia
Fletcher. Big win for D. Nev. AFPDs Rachel Korenblat, Alina Shell and Amy Cleary.

Facts: Torres pleaded guilty pursuant to a conditional plea to § 922(g)(1). Id. at *3. The conditional plea allowed an appeal of the denial of a motion to suppress. Id. He was sentenced to 92 months; Torres did not object to the use of priors to increase his guideline range. Id. at *7. In fact, Torres stipulated in his plea agreement to a range that included a big bump for prior “crimes of violence.” Id. On appeal, Torres challenged the use of the “crimes of violence” to enhance his sentence, arguing that the Supreme Court’s 2015 Johnson decision rendered the guideline definition of “crime of violence” unconstitutionally vague. Id.

Issue(s): “Torres . . . challenges his sentence on the grounds that the district court incorrectly enhanced his offense level under section 2K2.1 of the . . . Guidelines, in light of the Supreme Court's . . . . decision in Johnson. . . Johnson held that the ACCA's catch-all “residual clause,” . . . was unconstitutionally vague because it failed to specify the crimes that fell within its scope sufficiently clearly to satisfy the dictates of due process. . . . Torres argues that section 2K2.1(a)(2)’s identically worded residual clause is likewise unconstitutional. Because Torres did not object . . ., we will generally reverse only if we find plain error in his sentence.” Id. at *7. “Before we can decide whether Torres is entitled to relief on his sentencing claim, we must first determine whether his appeal is precluded by his plea agreement, in which Torres knowingly and expressly waive[d]: (a) the right to appeal any sentence imposed within or below the applicable guidelines range as determined by the Court, with the exception of preserving the right to appeal a determination that the [he] qualifies as an Armed Career Criminal; 5 (b) the right to appeal the manner in which the Court determined that sentence on the grounds set forth in 18 U.S.C. § 3742; 6 and (c) the right to appeal any other aspect of the conviction or sentence.’” Id. at *8.

Held:Here, the Government asserted . . . that it believes Johnson applies to the Sentencing Guidelines. . . . Based on the Government's concession, we assume without deciding that Johnson’s holding nullifies § 4B1.2(a)(2)'s identically worded residual clause. We . . . accept the Government's concession that the district court sentenced Torres pursuant to a provision in the Guidelines that is unconstitutionally vague. This renders Torres's sentence ‘illegal,’ and therefore the waiver in his plea agreement does not bar this appeal. See Bibler, 495 F.3d at 624. And, because the government agrees that Torres’s prior convictions do not justify the imposition of § 2K2.1(a)(2)’s crime-of-violence enhancement absent the residual clause, we vacate Torres's sentence and remand for re-sentencing.Id. at *9.

Of Note: Does Johnson apply to the Guidelines? Yep, says the government (and thus the Ninth) in Torres
   Is Johnson retroactive for guideline cases? Yep, says every Circuit to have considered the issue – except for that renegade Eleventh. See generally petition for cert. at 21-21, available here. (collecting cases – (plus the Fourth’s Hubbard!)).  
  What are the prospects for the Eleventh’s stubborn outlier? Not so hot – the Eleventh's decision was the one slapped with a cert. grant. See Beckles SCOTUS blog summary here

How to Use: Bibler lives (whew!). The Ninth confirms in Torres that it won’t allow the government to immunize illegal sentences from appellate review through appellate waiver. 
  Use Bibler and Torres when thinking about sentencing appeals, to cast off some of those coerced appeal-waiver shackles USAOs demand in their pursuit of “efficiency.”  
For Further Reading: New York robbery is not a “crime of violence,” holds the Second Circuit in United States v. Corey Jones
  Why do we care about a Second Circuit decision and New York robbery, way out here in the Ninth? Because Hobbs Act robbery was expressly modeled on New York robbery, the Ninth has explained. See United States v. Aguon, 851 F.2d 1158, 1164 (9th Cir. 1988) (en banc) (“Congressman Hobbs said explicitly that the definitions of robbery and extortion were modeled on the New York Penal Code.”), overruled on other grounds by Evans v. United States, 504 U.S. 255 (1992).  
  The Second Circuit's decision in Jones vindicates our claim that Hobbs Act robbery is not a crime of violence after Johnson
  (Our sympathies to the Marble Rye lady, but Jerry ain’t a “violent felon.” See blog entry here (and congrats to AFPD Matt Larsen)).

Image of the Hon. Judge Mary Murgia from 
Image of the Hobbs Act from

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


Labels: , , , , , , ,