Wednesday, March 29, 2017

US v. Plascencia-Orozco, No. 15-50238 (3-29-17)(Bea w/Callahan & Ikuta).  The 9th addresses a series of interesting issues raised by a defendant who attempted to illegally reenter the United States, thereby breaching a prior plea agreement.

In 2008, defendant pled guilty to an importation charge. The plea dismissed aggravated identity theft and attempted reentry charges (defendant had many other prior immigration charges). The plea agreement stated that the defendant must not seek to illegal reenter again. He did. The gov’t sought breach, got a ruling, and convicted.

The 9th affirmed the convictions.  It found that defendant had breached.  He had the opportunity to challenge the breach through pretrial motions.  The 9th held as well that (1) the court did not err in not appointing a fourth lawyer to represent the defendant (bar complaints were filed against prior counsel); (2) the court did not err in not conducting an evidentiary hearing regarding jury bias after the defendant while testifying made an obscene gesture during a sidebar; (3) the issue of breach did not have to go the jury; (4) the prosecutor's err in asking defendant whether another witness lied was remedied by instructions; and (5) the sentence (184 months) was not unreasonable.  The 9th vacated the court's order that the defendant must use his legal name.

The opinion does state that there is a conflict on the standard of review for a breach of plea.  Some cases require de novo of a breach, with deference to facts while others require a review for clear error.  The opinion sidesteps, saying that under any standard, a breach occurred.

The decision is here:
Copeland v. Ryan, No. 16-15849 (3-28-17)(Clifton w/Garbis; Berzon concurring). The 9th reverses a district court's order that the State reimburse petitioner's deposition expenses. The 9th first found that it did have interlocutory jurisdiction over the order. The 9th then turned to what authority, if any, there was for such an order under 28 U.S.C. § 2254. The 9th concluded there was no authority for the State to pay for the petitioner's deposition that the State did not request. All is not lost, however. The 9th remands to the court to determine what reimbursement can occur under the CJA. Berzon, concurring, noted that 9th precedent for interlocutory jurisdiction was not irreconcilable with the Supreme Court's narrowing of interlocutory jurisdiction.

The decision is here:

Sunday, March 26, 2017

Case o' The Week: Silver clouds and black linings - Rodriguez and Review of Title III Wiretap Applications and Orders

   The good news? The Ninth imposes a new (and higher) two-step standard on the district courts, when reviewing Title III wiretap applications and orders.
  (The bad news? The Ninth finds the government meets that standard, here).
United States v. Rodriguez, 2017 WL 971809 (9th Cir. Mar. 14, 2017), decision available here.

Players: Decision by visiting D.C. District Judge Friedman, joined by Judges Paez and Tashima.

Facts: Several district judges granted wiretap orders targeting Rodriguez and an alleged Mexican Mafia drug conspiracy. 
  Drug charges were eventually filed in the court of the third, presiding district judge. The third DJ reviewed the entire wiretap motion using only the (deferential) abuse of discretion standard, then denied the motion. Id. at *4. 
  The government filed an § 851 prior. Id. at *8-*9. Rodriguez was convicted after a trial and was sentenced to 600 months. Id. at *1.

Issue(s): “[Rodriguez] argues that the district court erred because it applied the incorrect standard of review when deciding his motion to suppress and that the government's wiretap application did not include a full and complete statement of facts as required by 18 U.S.C. § 2518(1)(c).” Id. at *1.
  “[  ] Rodriguez argues that the district court erred by deciding his motion to suppress under an abuse of discretion standard and improperly deferring to the issuing judge, rather than conducting its own independent review of whether the wiretap affidavits contained a full and complete statement of facts sufficient to satisfy 18 U.S.C. § 2518(1)(c).” Id. at *3.

Held: “When we review a district court’s decision on a motion to suppress wiretap evidence, we determine de novo whether the information in an affiant’s application for a wiretap amounts to ‘a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous. . . . If the wiretap application meets the requirements of § 2518(1)(c), then the Court reviews for abuse of discretion the issuing court’s finding that the wiretap was necessary under § 2518(3)(c) and its decision to grant the wiretap.” Id. at *3.
 “We conclude that district courts should apply the Ninth Circuit’s two-step approach when considering a motion to suppress wiretap evidence. Therefore, a reviewing district court judge must review de novo whether the application for a wiretap contains a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous . . . . If the wiretap application meets these requirements . . ., then the district court judge should review for abuse of discretion the issuing judge’s conclusion that the wiretap was necessary.” Id. at *4 (internal quotations and citations omitted).

Of Note: The good news is that Rodriguez’s two-step process is a far better approach than the more deferential review often applied by district courts. Moreover, the Ninth questions the lack of meaningful factual review below, and the DJ's improper deference to the “half century of judicial experience” of the judges who issued the Title III orders. Id. at *4.
  The bad news is that the Ninth doesn’t remand. Instead, the Court applies this two-step approach and mows down a variety of wiretap factual challenges: failure to disclose a search condition in the application, boilerplate language, and a brief surveillance period before wiretaps were sought. Id. at *5-*9.
  For better or worse, Rodriguez’s mixed bag is now must-read before tackling a Title III challenge in the Ninth.

How to Use: Section 851 of Title 21 sets forth a detailed procedure for alleging priors triggering mand-mins in a drug case. In a very rare outcome, the Ninth reverses and remands because Rodriguez’s § 851 hearing was botched. Id. at *12.
   Judge Friedman gives a detailed description of the requirements for alleging a prior, what has to happen during the § 851 hearing, and the failure to meet the statutory requirements here. 
  As we ponder a future with more of these miserable § 851 proceedings, Rodriguez is a good place to start.
For Further Reading: Four years ago, NorCal’s own Josh Cohen asked if Title III was dead after the Rajaratnam white collar wiretap. See Josh A. Cohen, Is Title III Dead? The Future of Wiretap Challenges in the Wake of Rajaratnam, The Champion, available here
   Interesting to mull this helpful article again in light of Rodriguez, and query how Josh’s call for a “collective prayer – for individuals’ privacy” is being answered.
  For defense bar Norteños, this is a particularly pressing question. In the last several years, the Northern District of California has had an extraordinary wiretap boom (clustered largely in Oakland). See “For Further Reading” here. 
  The Administrative Office of the U.S. Courts reports wiretap data in July: check back this summer to see if the Feds’ eavesdropping addiction continues unabated. See AO stat link here

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


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Sunday, March 19, 2017

Case o' The Week: Many are the afflictions of the righteous: but the [Ninth] delivereth him out of [some] of them - Job and King Searches

 Illegal searches, denied suppression motions, an unsuccessful trial, a thirty-year custodial term, and an appeal.
 The Ninth rewards the patience of Job.
United States v. Job, 2017 WL 971803 (9th Cir. Mar. 14, 2017), decision available here.

Players: Decision by (the always-welcome) visiting District Judge Friedman, District of Columbia, joined by Judges Tashima and Paez.  

Facts: Cops, looking for some other dude, happened upon Travis Job: they patted him down. Id. at *2.
  They discovered a glass pipe in Job’s pocket, $1,450 in cash, and car keys. Id. When the cops pushed the key fob a car in the driveway beeped and unlocked. Id.
   Cops searched the car and found meth, a cig with Spice, another glass pipe, and a cell phone. Id.  At some unknown point, the officers discovered Jobs was on probation “with a 4th amendment waiver.” Id.
  Job was charged in a meth conspiracy with Robert Rodriguez, and others. Id. at *2 (see also United States v. Rodriguez, 2017 WL 971809 (9th Cir. Mar. 14,2017)(discussing challenges to wiretap). Job’s challenges to the searches of his person and car were denied. He was convicted at trial and sentenced to 360 months [other offenses and searches were also involved in the case]. Id. at *3.   

Issue(s): “[Job] argues that the district court erred by denying his motions to suppress evidence found during searches of his person [and] car . . . .” Id. at *1.

Held: “In denying Job’s motions to suppress, the district court concluded — based on our decision in United States v. King — that Job’s Fourth Amendment search waiver provided a justification for all three searches. 736 F.3d 805, 810 (9th Cir. 2013). In King, we held that a suspicionless search, conducted pursuant to a suspicionless-search condition of a violent felon's probation agreement, does not violate the Fourth Amendment. Id. The district court erred by applying King’s holding to this case . . .”  Id. at *3.
  “The district court erred in denying Job’s motions to suppress evidence . . . solely on the basis of Job’s Fourth Amendment search waiver.” Id. at *4 (internal quotations and citation omitted).

Of Note: There were two problems with the government’s use of King in the district court. First, “it is undisputed that the officers were unaware of Job’s Fourth Amendment search waiver when they stopped him and patted him down.” Id. at *3. However, the Ninth’s policy rationale behind permitting the suspicionless searches of parolees (and probationers) requires that cops know of the search condition before searching. Id. Without that key fact, King’s “suspicionless search” rule can’t salvage a bad search.
  Second, King only applies to folks on paper for violent felonies –here, Job was on probation for a narcotic offense (Cal. H&S § 11377(a)). Id. at *4. A probation search waiver for a drug offense (offenses that have been deemed “nonviolent” by the Ninth) won’t justify a King suspicionless search of person, car, or home. Id.

How to Use: It is all well and good that the district court erred -- for Mr. Job, however, the far more-pressing question is the actual impact of the holding on convictions underlying his 30 year sentence?
  The Ninth employs harmless error review to answer that question. Judge Friedman schools the government for misstating the standard for this harmless error review: the test is not “whether a rational jury could have found Job guilty.” Id. at *8 & n.6. Instead, this error is “harmless only when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at *8 (internal quotations and citation omitted).
  The Ninth ultimately reverses one count of conviction under the standard as correctly set forth by Judge Friedman. Take careful note of footnote six: the government’s (wrong) standard of review would have probably meant defeat for Mr. Job. Job is a useful summary of the correct S.O.R. for Fourth Amendment motions after trial (and a potent reminder not to trust the government’s asserted standards on appeal).
The Honorable Chief Judge Thomas, with the Honorable Judges Bea and Kozinski (left to right).
For Further Reading: Republican-appointed judges are testifying in Congress, and opposing a Ninth Circuit split. Judges Bea and Kozinski joined C.J. Thomas at the House Judiciary Subcommittee to oppose the proposed creation of a new 12th Circuit from current Ninth States. For a video of their testimony, see the C-SPAN link here
  On a related note, Republican-appointed jurists occasionally disagree with some of the decisions of their colleagues on the Ninth. They are not, however, big fans of the Executive’s ad hominem attacks on the Judiciary. For an interesting piece on a very interesting dissent along these lines, see Appeals Court Judges Rebuke Trump for Personal Attacks, available here.


Image of the Honorable Chief Judge Thomas, the Honorable Judge Bea, and the Honorable Judge Kozinski, from

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


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