Monday, August 29, 2016

Godoy v. Spearman, No. 13-56024 (8-25-16)(O'Scannlain w/Bybee; dissent by Fisher). First the opening of the dissent:

"When a sitting juror is alleged to have continuously texted a judge friend about the trial and relayed the judge’s information to the jury, the majority concludes the trial court need not investigate further – and the jury verdict would not violate due process.  I disagree"

Having set the stage, we go back to the majority, which holds that under AEDPA deference, the state court was not unreasonable in denying a hearing or in characterizing the texts, allegedly between juror and her "judge friend," as merely procedural (what comes next in the trial) rather than substantive.  A juror's substantive communication would require reversal, or at least a hearing on the issue; these texts were taken to be mere what happens next in the murder trial.  Oh yes, the majority also believes that the 9th's recent Tarango decision, which creates a presumption of prejudice, was wrongly decided, but no matter -- the state met the presumption here.  The affidavits produced by defense counsel still do not make the decision unreasonable.

The dissent rightfully argues in measured tones that in failing to even have a hearing, the majority misreads precedent, invents a flexible rule, undermines protections, and erodes due process.

The decision is here:

Sunday, August 28, 2016

Case o' The Week: High times - McIntosh & enjoining the federal prosecution of medical marijuana cases

   The Honorable Judge Diarmuid F. O’Scannlain, hero of the West’s medical marijuana community.
United States v. McIntosh, 2016 WL 4363168 (9th Cir. Aug. 16, 2016), decision available here.

Players:  Decision by Judge O’Scannlain, joined by Judges Silverman and Bea. Big win argued by ND Cal CJA stalwart Marc. Zilversmit, Fed. Defenders of E. Wa & Id. AFPD Robert Fischer, and ED Cal AFPD Andras Farkas.

Facts: A slew of defendants in three districts were indicted for marijuana crimes under the Controlled Substance Act. Id. at *1. They (unsuccessfully) moved to dismiss their indictments, or enjoin their prosecutions on the grounds that a rider on an appropriations bill prohibited the use of federal funds by DOJ to prosecute offenses involving medical marijuana. Id. at *2. 
  The defendants filed interlocutory appeals, and sought writs of mandamus. Id. at *3. 
  (No defendant has yet been convicted or sentenced. Id. at *3).

Issue(s): “We are asked to decide whether criminal defendants may avoid prosecution for various federal marijuana offenses on the basis of a congressional appropriations rider that prohibits the United States Department of Justice from spending funds to prevent states’ implementation of their own medical marijuana laws.” Id. at *1.

Held:In sum, § 542 prohibits DOJ from spending money on actions that prevent the Medical Marijuana States’ giving practical effect to their state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Id. at *8. 
  “We . . . conclude that, at a minimum, § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.Id. at *9. “
  [W]e conclude that § 542 prohibits the federal government only from preventing the implementation of those specific rules of state law that authorize the use, distribution, possession, or cultivation of medical marijuana. DOJ does not prevent the implementation of rules authorizing conduct when it prosecutes individuals who engage in conduct unauthorized under state medical marijuana laws. Individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and prosecuting such individuals does not violate § 542.” Id. at *10.  
  “When Congress has enacted a legislative restriction like § 542 that expressly prohibits DOJ from spending funds on certain actions, federal criminal defendants may seek to enjoin the expenditure of those funds, and we may exercise jurisdiction over a district court's direct denial of a request for such injunctive relief.Id. at *5.

Of Note: With no convictions, what’s the Ninth’s jurisdictional hook for this big defense win? Judge O’Scannlain turns to 28 USC § 1292(a)(1), and concludes that the Ninth has jurisdiction to consider the interlocutory appeals from the direct denials of the requests for injunctions. Id. at *5. 
  The take-away? The starting point for this litigation in the district courts is a motion for injunctive relief.

How to Use: “The Feds can’t touch pot cases,” our clients will earnestly insist. The reality is a bit more -- nuanced. Most importantly, the Court emphasizes that this funding bar only works if the defendant was in compliance with state law. Id. at *10. In McIntosh, that threshold question was bounced backed for evidentiary hearings. Id. at *11.  
  McIntosh doesn’t mean 4/20 always beats § 841, but it does make one wonder. With no federal funds appropriated for the work, who exactly is authorized to prosecute Form 12s for dirty pot tests, or Form 8s for marijuana pretrial violations, or a host of other interesting pot pickles that seem to bedevil our clients?
For Further Reading: For an interesting, albeit sobering, article about what McIntosh does and doesn’t mean, see John Hudak, McIntosh decision limits DOJ powers, but medical marijuana advocates should worry, available here

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


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Sunday, August 21, 2016

Case o' The Week: Three times, no Brady - Harmon and Knowing Perjured Cooperator Testimony before Grand Jury

 What do you call a conviction of charges in an indictment obtained from the knowing presentation of perjurious snitch testimony before the grand jury? (Three times over!)
  You call it, “affirmed.”
United States v. Harmon, 2016 WL 4394586 (9th Cir. Aug. 18, 2016), decision available here.

"The Denial of Saint Peter"
  Players: Decision by Judge Owens, joined by Judges Wallace and D.W. Nelson. Hard-fought appeal by FPD alum, NorCal CJA stalwart, and Brady defender Ed Swanson, argued by Swanson & McNamara partner August Gugelmann.

Facts: Harmon, a defense lawyer, accepted crime proceeds from a client and then wrote him back checks from her account. Id. at *1. She was charged with money laundering: the core issue was whether Harmon knew the money came from crimes. Id. 
  To get the indictment, a ND Cal AUSA presented actively-cooperating and paid witness “Yan Ebyam” to the grand jury three times. Id. at *1. “The grand jurors were curious about Ebyam’s relationship with the prosecution.” Id. Ebyam was thus asked if he had received any promises or benefits in exchange for his testimony. Id. He lied and answered, “no.” Id. 
  At the second grand jury session, the AUSA asked if Ebyam was testifying under his own accord. He lied again, assuring that he was under no obligation to cooperate. Id. 
  At the third grand jury session Ebyam was asked if he was receiving any benefits for his testimony. He lied yet a third time: “I’m not under indictment. I’m not getting any paychecks . . . there’s no secret benefit down the line.” Id. [Ed.: “And immediately, while he yet spake, the cock crew.” Luke 22:59-62].
  Harmon was indicted, tried, and convicted: motions for dismissal and a Brady motion for a new trial were denied. Id. at *3.

Issue(s): “Harmon appeals from her convictions for money laundering. She argues that the prosecutor's errors before the grand jury constitute structural error, requiring reversal. She also contends that the government’s failure to disclose impeachment evidence about a hostile defense witness mandates a new trial.” Id. at *1.

Held: “Because the grand jury errors are not structural, and any impeachment evidence immaterial, we agree with the district court’s well-reasoned analysis and affirm.” Id. at *1. “We hold that where the intentional misconduct by the prosecution goes to a witness’s credibility, it is not structural error.” Id. at *4.

Of Note: Harmon is a troubling decision, with a disappointing new rule for the Ninth: knowingly presenting perjured testimony to the grand jury is not structural error (and is per se harmless error as a matter of law if sanitized by a petit jury’s verdict). 
  Judge Owens concedes that both the Second and Tenth have acknowledged that dismissal of an indictment is possible for prosecutorial misconduct before the grand jury. See id. at *4 & n.7. The Ninth disclaims a circuit split, assuring us that Ebyam’s series of deliberate and overt lies were just “technical” – not “flagrant or egregious misconduct.” Id. 
   Three years ago, another Ninth jurist warned, “There is an epidemic of Brady violations abroad in this land. Only judges can put a stop to it.” United States v. Olsen, 737 F.3d 625 (9th Cir. 2013) (Kozinski, (former) C.J., dissenting from order denying the petition from rehearing en banc); see also blog entry here. Reading Harmon, fair to ask what progress has been made in putting a stop to that epidemic.

How to Use: “Under Mechanik, presenting false information to the grand jury affecting a witness’s credibility and withholding impeachment information – even if done intentionally, which we assume but do not decide – are harmless as a matter of law after a petit jury returns a guilty verdict.” Harmon, 2016 WL 4394586 at *4 (emphasis added). Putting aside that characterization of Mechanik (a Supreme Court case that involved Federal Rules error – not constitutional error), what can we now do to deal with a “holding [that] could encourage prosecutorial misconduct?” Id.
  The D.C. Circuit has it right: the time has come for a standing Brady disclosure order, entered in every criminal case. See D.C. Circuit standing order here
Mr. Yan Ebyam
For Further Reading: During the Stevens Brady debacle, you’d read the stories about the snitches and think that the nondisclosed impeachment was so bizarre that it had to have been cooked up by a screenwriter.  See article here
  Déjà vu vu, all over again. See Zusha Elison, Entrepeneur’s Ambitious Plans Go Up in Smoke, New York Times, May 21, 2011 available here, see also Unusual Pot Entrepreneur with Checkered Past Strikes Plea Deal, available here.

Image of “The Denial of Saint Peter” by Gerard Seghers from Google Art Project, Public Domain,

Image of Mr. Ebyam from

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


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