Tuesday, February 28, 2017

US v. Lindsey, No. 14-10004 (2-27-17)(Gould w/Graber & Friedland). In a significant mortgage fraud case, and really all fraud cases, the 9th affirms wire and theft convictions.

In this case, the district court precluded the defense from arguing that lender negligence and intentional disregard by the lender were defenses.  The defendant cannot mount a defense of an individual lender's lending practices, whether careless or even intentionally disregarding material statements.  The focus is on an objective test of materiality.

Can defendants argue about carelessness? Yes, but it has to be through lending standards generally applied in the industry.  The defendant can offer testimony about types of information considered, such as household income or assets, and what weight they are given.  An example that is used is marital status: a defendant can show that such status is routinely ignored. The district court can bar evidence of the particular lender and whether her practice is to ignore such status. 

The decision balances the tension between the Supreme Court's decision in Neder and its decision in Universal Health Services. In Neder, reliance on information is not an element; in Universal, materiality can be questioned.

Materiality measures the natural capacity to influence. An objective test is best. Evidence of individual lender practices is too subjective, and a prophylactic bar against lender practices is best.

The decision is here:


Sunday, February 26, 2017

Case o' The Week: Pic, Sixteen => Mand-Min, Fifteen: Laursen and the Child Porn Production statute.

 A picture is worth . . . 5,475 days.
United States v. Laursen, 2017 WL 460660 (9th Cir. Jan. 30, 2017), decision available here.

The Hon. Judge Johnnie B. Rawlinson
 Players: Decision by Judge Rawlinson, joined by Judge Callahan. Concurrence by Judge Hawkins.

Facts: Laursen, 45, had a consensual sexual relationship with a sixteen-year-old girl. Id. at *1. Laursen told police the girl was being prostituted (but did not reveal his relationship). Id. Police examination of the girl’s laptop revealed sexually explicit images of the girl and Laursen. Id. 
  Later, Laursen’s sister gave the police a camera that she found, that contained sexually explicate images of the girl. Id. 
  Laursen was charged with and convicted of production and possession of child porn. Id. at *2. The court rejected a jurisdictional challenge, where Laursen argued that the girl was “not a child” because under Washington law she was a young woman of legal consensual age. Id. at *4. 
  Laursen was sentenced to the mand-min fifteen years. Id.

Issue(s): “In this appeal we address whether taking consensual nude ‘selfies’ involving a forty-five-year-old man and a sixteen-year-old girl is sufficient to support a conviction for production and possession of child pornography.” Id. at *1 (footnote omitted).

Held:We . . . specifically reject the argument made by . . . Laursen that the legality of his sexual relationship with a sixteen-year-old under Washington state law precluded prosecution under federal law.” Id. “[I]n the state of Washington, Laursen’s sexual relationship with [the girl] was legal but the production of pornography stemming from that relationship was not.” Id. at *6.

Of Note: How many seventeen-year olds routinely take consensual and sexual cell phone shots similar to those in Laursen – pics that here resulted in a fifteen year mand-min sentence? That sobering question is asked by Judge Hawkins in his persuasive concurrence.
  Judge Hawkins would adopt a narrower construction of the key term, “uses” in the child production statute. Id. at *8. He would hold that the term “uses,” as the statute references between the photographer and the minor, requires that the defendant must have “exerted some sort of improper influence on the minor for the purpose of producing the visual depiction of sexual conduct.” Id.
  Applying that narrowing definition here, Judge Hawkins would find that Laursen met that requirement: the big age difference between the couple, Laursen’s gift of drugs to the girl, moving her from motel room to motel room, and the girl’s history of abusive relationships were sufficient evidence of improper influence. Id. at *9.
  Judge Hawkins has the better argument: the very expansive definition of the word “uses” in the majority’s opinion means the only limitation on the high mand-min “production” statute is unfettered AUSA discretion.
  Romeo is lucky there were no iPhones in Verona. Amorous teens, beware.

How to Use: This brief opinion quickly mows through a bevy of constitutional and evidentiary challenges. Id. at *4-*8. One of the most concerning is the rejection to the overbreadth challenge. Id. at *6.
  It was undisputed that Laursen could legally have a full consensual sexual relationship with the sixteen-year old girl. Id. at *6. (“[I]ll-advised, but perfectly legal,” as Judge Hawkins observes.). Id. at *8. However, the instant Laursen encouraged the girl to take a consensual nude picture, he fell afoul of the federal “production” statute and bought himself a fifteen-year mandatory minimum sentence. Id. Notably, there is no evidence that Laursen distributed, transferred, or showed these private pictures to anyone outside of the relationship. Id at *8 (Hawkins, J., concurring).
  The result of Laursen is that consensual intercourse with a sixteen-year old is legal in Washington -- yet encouraging that same sixteen-year old to take a private nude picture converts the relationship into a fifteen-year mand-min federal crime.
  A troubling case that merits a close read for anyone defending child porn production charges.
For Further Reading: In 2016, the Obama administration started to shut down private federal prisons as prison populations shrank, and after a number of investigations revealed horrific conditions in the for-profit institutions. See article here.
  A.G. Sessions is reversing course. For an interesting -- and disturbing -- piece on the ramifications of the new A.G.’s policy shift, see Private Prisons: Here’s Why Sessions’ Memo Matters, available here.

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


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Sunday, February 19, 2017

Case o' The Week: Are Cops Deterred if Rights Inferred? - Loucious and deviant Miranda warnings

  You have the right to remain silent. 
  You have the right to infer the potential meaning of additional rights, from conclusions you should draw from the rights that may or may not be explained to you.
 United States v. Loucious, 2017 WL 510457 (9th Cir. Feb. 7, 2017), decision available here.

Players: Decision by Judge Gould, joined by Judges Clifton and Watford. Hard-fought appeal by D. Nev. AFPD Wendi Overmyer.

Facts: Vegas cops stopped a car for speeding. Id. at *1. The passenger, Loucious, had an outstanding arrest warrant: he was pulled out of the car and a revolver was discovered in the back seat near where he had been sitting. Id. Loucious was taken into custody. 
  Before he was questioned, Loucious was read Miranda warnings that omitted the right to consult an attorney before questioning. Id. at *2. Instead, the rights advised him that he had the right to speak to an attorney during questioning. Id. 
  The district court granted Loucious’ motion to suppress the statement, concluding that the right to consult with a lawyer before questioning “could not have been inferred from the warnings given.” Id. 
  The government appealed.

Issue(s): “The parties dispute whether the warnings here administered by the LVMPD conveyed to Loucious his Miranda rights based on the addition of the words ‘during questioning.’ The United States contends that the warnings were sufficient because the right to consult with an attorney prior to questioning can be inferred from the warnings given. The warnings explicitly stated that Loucious had the right to the presence of counsel during questioning and that he had the right to have counsel appointed before questioning. Loucious argues that the warnings were deficient because they did not say that Loucious could consult with an attorney before questioning so that he could decide whether to speak with officers at all.” Id. at *3.

Held:We conclude that Miranda warnings need not follow a precise formulation, and here the warnings reasonably conveyed that Loucious had the right to consult an attorney before questioning. So we reverse the district court’s grant of the motion to suppress.” Id. at *1. 
  “After discussing instructive cases from our court and the Supreme Court, we conclude that the Miranda warnings administered by the LVMPD conveyed the substance of the warning that Loucious could consult with an attorney before questioning.” Id. at *3.

Of Note: Honestly, how hard is it to issue a standard Miranda card? Way back in ’85, the Ninth upheld quirky warnings from Guam that also did not expressly “convey notice of the right to consult with an attorney before questioning.” Id. at *3. The Court suggested, however, that Guam revise its form to more clearly inform defendants of their right to counsel before questioning. Id. 
  Judge Gould revisits that clear advice to Guam, in Loucious: “police can always be certain that Miranda has been satisfied if they simply read the defendant his rights from a prepared card . . . A verbatim reading would, in all instances, preclude claims such as Loucious’s.” Id. (quotations and citations omitted). 
  Note that in this case, the officer read the warnings – this wasn’t a case of a cop mis-remembering oral warnings. Miranda was decided in 1966: after 51 years and innumerable decisions, are these deficient printed warnings really just sloppy police work, or is law enforcement deliberately testing the boundaries of Miranda’s requirements?

How to Use: Two sentences saved Vegas's deviant warnings. Loucious was told that if he couldn’t afford an attorney, “one will be appointed before questioning.” Id. at *2. Judge Gould builds off of that warning, and links it to the warning that Loucious had a right to an attorney during questioning. We’re told that when paired, those two warnings support an inference that Loucious should have concluded that he had a right to consult with an attorney before questioning. Id. at *4. 
  When cops get creative with Miranda warnings in your case, check to see if these paired admonitions took place – if not, the inference drawn in Loucious may not be possible.
For Further Reading: Will future Vegas appeals be decided by a new Twelfth Circuit Court of Appeals? (A proposed circuit composed of a weird Western donut encircling three states in the old-new Ninth: California, Oregon and Hawai'i).
  The San Francisco Chronicle reviews the current state of Arizona Senators' efforts to split the Ninth, in an article here
  (No mention of the poor District of Guam in the article - maybe it'll be the new Thirteenth?)

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

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