Monday, December 26, 2016

Case o' The Week: "Return to Sender" = Return for Trial: Yepiz and Right to Retained Counsel

Hon. John T. Noonan

 A bounced-back letter means a bounced-back case, when Ninth considers right to counsel of choice.
United States v. Yepiz, 2016 Westlaw 7367827 (9th Cir. Dec. 20, 2016, 2016), decision available here.

Players: Decision by Judge Noonan, joined by Judge Reinhardt. Partial dissent by Judge Nguyen.

Facts: Yepiz and his co-defendants went to trial on RICO charges. Id. at *1. Four months before trial, Yepiz wrote directly to the district judge and complained of difficulties he had with his retained counsel. Id. at *5. The court rejected the letter because local rules prohibit ex parte contact with the judge – but it didn’t explain why in the returned letter. Id. 
  Yepiz wrote another pair of letters asking for an in camera hearing to request appointed counsel. Id. The court ultimately held the hearing, but rejected the request for appointed counsel as “untimely” and on the “eve of trial.” Id. 
  Yepiz wrote a fourth letter with concerns about his counsel during trial. Id.   He appealed after being convicted at trial.

Issue(s): “Unlike most substitution cases that arise when an indigent defendant requests new court-appointed counsel in place of an existing appointed attorney, the present appeal concerns a defendant's request to replace retained counsel with appointed counsel.” Id. at *6 (internal quotations omitted). 
  “Yepiz claims the district court abused its discretion when it failed to inquire into his April letter seeking to replace [retained counsel] Estrada with court-appointed counsel.” Id.

Held: “We agree.” Id. “The right to counsel of choice includes the constitutional right to discharge retained counsel, and a defendant may generally do so for any reason or no reason so long as the substitution would [not] cause significant delay or inefficiency or run afoul of ... other considerations, such as the fair, efficient and orderly administration of justice. . . . [D]enial of a defendant's right to counsel of choice is a structural error, requiring that convictions be vacated even without a showing of prejudice. . . . Where a court allows a defendant to discharge his retained counsel and the defendant is financially qualified, the court must appoint new counsel for him under the Criminal Justice Act (CJA), at any stage of the proceedings. . . .” Id. at *6.
  We . . . find that the district court abused its discretion when it arbitrarily and without explanation rejected Yepiz's April 2006 letter. Given the defects in the district court's handling of Yepiz's requests, we VACATE Yepiz's conviction and REMAND for a new trial.” Id. at *8 (internal quotations and citations omitted).

Of Note: Structural errors are rarer than hen’s teeth. That standard – structural error – is the crux of Judge Nguyen’s dissent. Id. at *8 (Nguyen, J. dissenting in part). Judge Nguyen would employ a harmless error analysis by characterizing the appeal as alleging ineffective assistance of counsel, not choice of counsel. Id. In her view the case hinges on the status of the pro se letter Yepiz wrote to the court four months before trial (bounced, most likely, by a clerk). Id. at *8. 
  Judge Nguyen worries that “[t]he majority’s holding means that district courts can’t enforce local rules prohibiting represented parties from writing pro se letters to the judge.” Id. at *10. Whether or not that’s true, it is fair to say that Yepiz means that the scribbled letters of our pen pal clients are likely to get a much closer read from their judicial audience.

How to Use: Do we have an ethical obligation to transmit to the court a client’s request for new counsel? Of course, doing so is good form and is the “right” thing to do. But is it an ethical requirement
  “Once Estrada learned that his client might want to discharge him, he had a duty to promptly discuss the issue with Yepiz and, if Yepiz indeed had that intent, to honor it. An attorney has an ethical obligation to seek substitution or withdrawal if his client wants the representation to end.” Id. at *9. The cases relied upon by Judge Nguyen don’t state that obligation quite as bluntly, but note well her rule: if a client wants to fire us, we let the court know.
For Further Reading: The Eleventh Circuit held this year that a client needn’t show “good cause” to dismiss his retained counsel. See decision here.  
  A case of interest, because the author of Jimenez-Antunez is a lead candidate for the vacant Supreme Court seat. See article here

Image of the Honorable Judge John T. Noonan from

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


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Thursday, December 22, 2016

US v. Shields et al, No. 14-10561 (12-21-16) (M. Smith w/Wallace & Korman). The 9th affirms convictions in a wire fraud scheme despite an erroneous jury instruction.  The prosecution argued that the defendants' investment scheme bilked clients out of millions.  The defendants, the prosecution argued, omitted relevant facts, such that the properties to be purchased (assisted living facilities) could not be. Purchased.  The funds were used for other investments, which went bad. In instructing the jury, the court failed to give an instruction that the defendants had a duty to disclose.  This was error.  The 9th holds that "in order for an omission to support a wire fraud charge, the jury must be instructed that it must first find that the defendant and the defrauded party had a 'trusting relationship in which [the defendant] act[ed] for the benefit of another and induce[d] the trusting party to relax the care and vigilance which it would ordinarily exercise."   Milovanovic, 678 F.3d 713, 723-24 (9th Cir. 2012).  Milovanovic was extended to allegations of fraudulent omissions in wire fraud, where a fiduciary duty, formal or informal, must be found by the jury which creates a disclosure duty. 

Although this was error, the 9th still affirmed the convictions.  The error was not plain.  It was based on Model Instruction 8.124 which did not include a duty to disclose instruction.  There was no objection.  Further, any error was harmless in light of the evidence and other affirmative acts of the defendants. 

The decision is here:

Tuesday, December 20, 2016

US v. Yepiz et al, No. 07-50051 (12-20-16)(Noonan w/Reinhardt; Nguyen dissenting). This concerns a Brady violation.  Nine members of a Southern California gang appealed their RICO, RICO conspiracy, VICAR and/or narcotics convictions. The government wrote in a letter that a key cooperating witness received "no benefits" from his testimony, and was getting a lesser sentence in an unrelated case.  On cross, though, the witness stated he had received $5000 after he testified before the grand jury.   On appeal, the government argued that counsel cross examined on this issue.  Subsequently, at a separate trial of a co-defendant, the witness said he had received between $100,000 and $200,000 from different agencies.  The 9th remanded to the district court for fact finding on the Brady claim and what benefits were received.

The 9th also vacated Yepiz's conviction due to defects in the district court's handling of his request to substitute counsel. 

Nguyen dissented from the vacation of conviction for structural error.  Nguyen argues that the pro se letter violated local rules regarding communications with represented parties.  Moreover, the 9th should have engaged in a harmless analysis.

The decision is here:

US v. Thomas, No. 14-10427 (12-20-16)(Schroeder with Wallace; Kozinski dissenting).  Was the sentence unreasonable? Did the court know it could have used its discretion for a lower sentence?  The defendant here was convicted of multiple counts of conspiracy, armed bank robbery, and use of a firearm.  The court sentenced him to 32 year mandatory minimum for the firearm counts and then an additional consecutive 17.5 years for the bank robberies.  The court stated at sentencing that "I wouldn't impose that sentence if I had the discretion.  But I don't." 

In addressing the sentence, the majority focused on the court's discretion to lower the guidelines sentence.  It was bound by the mandatory minimums.  The majority parsed the language at sentencing, and felt that the district court, in looking at the robberies, felt that 210 months was appropriate.  The majority found that the court knew it had discretion, even if it said that it didn't.

Kozinski, dissenting, said that the district got it wrong.  The court said it did not have discretion.  It did.  The defendant was 24 at the time.  He will get out when he is 73.  Kozinski would find this unreasonable, under this record, and would remand so the court could exercise its discretion.

The decision is here:

Monday, December 19, 2016

Case o' The Week: Never Made it to the Grand, But Throw Before Petit - Loftis, Uncharged Conduct, and FRE 404(b)

He’s making a list,

He’s checking it twice,

Now naughty’s admissible,

When fraudsters entice.

 United States v. Loftis, 2016 WL 7176657(9th Cir. Dec. 9, 2016), decision available here.

Left to right: The Hon. Judges Fisher, W. Fletcher, and N.R. Smith

Players:  Decision by Judge Fisher, joined by Judges W. Fletcher and N.R. Smith. Hard fought appeal by Montana AFPD John Rhodes.

Facts: Loftis is charged with wire fraud, for allegedly victimizing investors through falserepresentations. Id. at *1. Though the government posits a broad scheme, spanning six years and several states, charged transactions involved just three investors and all took place in Montana. Id.
  Before trial it became clear that the government intended to introduce evidence of crimes beyond the charged offenses. Loftis thus moved in limine for exclusion of uncharged conduct. Id.
  The district court granted the motion in part, finding some evidence excludable under FRE 404(b). While “[t]he extent to which the district court properly applied [the evidentiary] principles is not clear,” id. at *4, the court held that some evidence would be excluded under FRE 404(b) unless the government showed the uncharged conduct evidence was “inextricably intertwined” with the Montana scheme. Id. at *1.
  The government filed an interlocutory appeal; trial was stayed. Id.  

Issue(s): Did the district court properly exclude evidence of uncharged offenses, absent a showing from the government that the crimes were inextricably intertwined with the scheme employed in Montana?

Held: 1. FRE 404(b) and “other” acts:We hold the evidence of uncharged transactions is not evidence of ‘other’ crimes or acts under Rule 404(b), because it is evidence of part of the crime charged in the indictment—the overall scheme to defraud.” Id. at *2 (emphasis in original, footnote omitted). ‘Because the evidence from other investors is charged conduct, the government is not required to rely on the inextricably intertwined doctrine to avoid Rule 404(b).” Id. at *4.
  2. “Inextricably intertwined:” [However,] . . . even if the uncharged transactions at issue were not part of the crime charged, they would not be subject to exclusion under Rule 404(b) because they are ‘part of the same transaction’ as the charged transactions. The inextricably intertwined doctrine, therefore, affords a second basis for concluding the evidence should not be treated as ‘other’ crimes or ‘other’ acts evidence under Rule 404(b).Id.

Of Note: While this is a disappointing outcome, Judge Fisher does take pains to emphasize why the evidence is admissible. Wire fraud’s first element requires the government to prove “the existence of a scheme to defraud.” Id. at *3. Hence, evidence from uncharged crimes is admissible as proof of that first element – it is not, by definition, “other crimes” and is not precluded under FRE 404(b). Id.
 This doesn’t mean that in a fraud case the government can throw everything at the barn to see what sticks – “these holdings apply only when the charged and uncharged transactions can fairly be characterized as parts of a single fraudulent scheme.” Id. at *4 (emphasis added).
  Put differently, when our creative clients have other, different scams running, those crimes fall outside of Loftis – they don’t bear on the first element of the charged wire (or mail) fraud.

How to Use: Fish gotta swim, birds gotta fly, AUSAs gotta overprove their case: it’s the nature of things.
  What are you supposed to do when a gung-ho prosecutor invokes Loftis and smuggles in a mountain of inflammatory junk to “prove” a fraudulent scheme (a scheme that is often painfully clear from the charged offenses?) Counter-invoke Judge Fisher’s explicit caveat: Loftis doesn’t address exclusion of this evidence on other bases, such as FRE 403. Id. at *4. (And remind the DJ that excluding cumulative evidence will shave weeks off an interminable fraud trial . . . .)  
For Further Reading: What about snitches running their own “uncharged conduct” schemes? Under Loftis, aren’t their shenanigans evidence of fraud crimes (and hence their motive for falsely incriminating your poor client to earn that 5K break?) For an interesting rift on this theme, see Jessica Broderick, Reverse 404(b) Evidence: Exploring Standards When Defendants Want to Introduce Other Bad Acts of Third Parties, at 79 U. Colo. L. Rev. 587 (2008), available here. 

Image of the Honorable Judges Fisher, W. Fletcher, and NR Smith (the Loftis panel) from

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


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