Sunday, April 30, 2017

Case o' The Week: Not Charged, But Still You Pay - Donald Johnson and MVRA restitution

 Uncharged crimes, federal dimes.
United States v. Donald "Ski" Johnson, 2017 WL 1416490 (9th Cir. April 21, 2017), opinion available here.

Players: Decision by Judge Callahan, joined by Judge Paez and D.J. England. Hard-fought appeal by Michael Donahoe, Sr. Litigator, Federal Defenders of Montana.

Facts: Johnson used an alias to promote a (fraudulent) black-tie charity event in Seattle. Id. at *1. He pocketed about $9,300. Id.
  Using a different alias, Johnson pulled off another charity-fraud scheme in Florida. Id.
  Then, using the Florida alias, he tried again in Montana and was caught. Id. Johnson was indicted in Montana with one count of § 1343 – wire fraud. Id.
  Although the indictment alleged the scheme occurred in Montana “and elsewhere,” it referenced only a single wire, associated with the Montana attempt. Id. at *2. Johnson successfully moved in limine to limit the government’s proof to only the Montana event. Id. (Note - based on later Ninth Circuit law, the court probably improperly excluded this as prohibited 404(b)(2) evidence. Id. at 2 & fn. 2).
  Thought Johnson was only convicted of the Montana wire, the government sought restitution for the Seattle and Washington fraud events. Id. The district court declined, and only imposed restitution for the Montana fraud. Id.
  The government appealed.

Issue(s): “[T]he government argues that the district court erred by considering only Johnson’s fraudulent conduct that occurred in Montana (the count of conviction) when determining restitution, and thus misinterpreted the Mandatory Victim Restitution Act (‘MVRA’). See 18 U.S.C. § 3663A.” Id. at *1.

Held: Under 18 U.S.C. § 3663A and Ninth Circuit precedent, the district court could properly order restitution for all victims harmed by Johnson’s scheme, including those harmed by conduct beyond the count of conviction. Accordingly, we vacate the district court's restitution order and remand for the court to make factual findings to determine whether Johnson’s activities beyond the [Montana] event are sufficiently related to be included for restitution purposes in Johnson’s overall scheme to defraud.” Id. at *3.

Of Note: The district court agreed with the defense and kept this fraud trial a Montana case, tried to a Montana jury: Seattle and Florida events were excluded. The AUSA could have appealed -- unlike the defense, the government can bring an interlocutory appeal of evidentiary rulings. Id. at *2 (citing United States v. Loftis, 843 F.3d 1173, 1175-76 (9th Cir. 2016)).
  But the government didn’t.
  Having waived that interlocutory appeal, could the government later argue these “outside the conviction” frauds when seeking restitution? Yep.
  Judge Callahan rejects the defense pitch that the government’s failure to bring an interlocutory appeal limited the government’s post-conviction, restitution appeal. Id. at *2. The government’s failure to raise an interlocutory appeal does not bar raising the decided issue after entry of a final judgment. In Johnson, that was the case even though the restitution order “flows from the same issue as the district court’s evidentiary hearing.” Id.
  There are rational reasons for these double-standards around interlocutory appeals (double-jeopardy being foremost) . . . but this line of law is nonetheless perpetually galling.

How to Use: Thought the AUSA failed to argue it, the law at the time of this restitution hearing was clear that fraud conduct beyond the count of conviction can be used for MVRA restitution. Id. at 3 & n.4. 
  It isn’t new law, but the rule is worth adding to the research file: “restitution may be ordered for all persons directly harmed by the entire scheme and is thus not confined to harm caused by the particular offenses for which the defendant was convicted.” Id. at *3 (quotations and citation omitted).
For Further Reading: Will NorCal be flooded with § 1326 cases? Well, it got a little harder for ICE to trigger the tsunami last week, when the Hon. William H. Orrick issued a preliminary injunction against Executive Order 13768.
  While many have applauded WHO for his decision, fewer have actually read the (admirable) order. Interestingly, it is quite restrained – as Judge Orrick explains, “The Counties’ motions for preliminary injunction against Section 9(a) of the Executive Order are GRANTED as further described below. That said, this injunction does nothing more than implement the effect of the Government’s flawed interpretation of the Order.”
  The opinion that has made the Northern District (or rather, “the Ninth Circuit”) the latest Tweet-target can be found here.

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


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Thursday, April 27, 2017

1. US v. Harris, No. 16-10152 (4-20-17)(per curiam w/Tallman, Watford, & Guirola).  Defendant's interest in a trust qualifies as property under the federal debt collection procedure (garnishment). The government is not seeking to compel distributions from the trust to satisfy a 1997 debt arising from convictions. The government's writ of garnishment continues until the debt is satisfied.

The decision is here:

2.  US v. Rivera-Muniz, No. 15-10560 (4-20-17)(Kobayashi w/Bybee & N. Smith). This is a categorical challenge to voluntary manslaughter as a Crime of Violence under 2L1.2 for a 1326 conviction. Defendant argues that the "recklessness" prong of the California penal statue. The 9th held that voluntary manslaughter was a CoV because it was an enumerated offense in the guidelines and the state statute fell within the common law and commonly understood elements of the offense.

The decision is here:

3.  US v. Fryberg, No. 16-30013 (4-21-17) (Graber w/Ikuta & Hurwitz). This is a confrontation issue.  The defendant was charged and convicted as a prohibited possessor of a firearm.  On appeal, he argues error in the court admitting into evidence return of service of a notice of a domestic violence protection order hearing.  The hearing was held before a tribal court and the defendant did not appear for the hearing.  A protective order was then issued.  Subsequently, the defendant acquired several firearms. The government then charged him as a prohibited possessor.   At trial, the government relied on the return of service to prove the defendant knew there was a hearing set. The officer who had served the notice was deceased. 

The 9th holds that the admission of the return of service did not violate hearsay or confrontation clause.  The return of service was admissible under the public records exception to hearsay under Fed R Evid 803(8)(A)(ii).  The service of a notice is ministerial. The notice was basically an observation, and non-adversarial.  The court did not abuse its discretion in its admission or in allowing it in as trustworthy.

As for the confrontation objection, the return of service was not testimonial.  While the return of service smacked of a prosecutorial function, and not civil like many immigration matters, it was not though a new record for this prosecution. It was an administrative filing contemporaneous to a ministerial function.

The decision is here:

4.  US v. Johnson, No. 15-30350 (4-21-17)(Callahan w/Paez & England). The 9th reversed and remanded to allow the court to impose more restitution.  The defendant was convicted of wire fraud.  The victims of that fraud were given restitution but not the victims of other conduct.  The court concluded that it could only award restitution for the count of conviction.  The 9th held that this was error.  Under 18 U.S.C. § 3663A (MVRA), restitution could be ordered for victims harmed by the defendant's scheme, including beyond the count of conviction.  The remand is to determine if the defendant's activities beyond the conviction were sufficiently related to the conviction to be included for restitution purposes for the other victims.

The decision is here:

5.  Weeden v. Johnson, No. 14-17366 (4-21-17)(Hurwitz w/Molloy; Callahan dissenting). The 9th found IAC in this juvenile habeas.  The petitioner was 14 when she allegedly organized a bungled robbery in which a victim was shot and died.  She was not present.  The defense lawyer mounted a character defense; he did not have testing done because it would interfere with his trial strategy.  Subsequent testing, post-conviction, revealed severe cognitive deficiencies.  The 9th reversed for IAC, stating that counsel's investigation must determine trial strategy and not the other way around.  Such failure to investigate violated Strickland.  Callahan dissented, arguing that deference must be paid to trial counsel and state courts.  She fears this per se rule regarding experts will shake many sound state convictions.

The decision is here:

Sunday, April 23, 2017

Case o' The Week: Sixth Amendment Decision Sticks in Defense Craw-ford: Fryberg and the Right to Confrontation

 Feeling non-Confrontational?
 Admirable in personal relationships.
 Less so, in criminal trials.
United States v. Fryberg, 2017 WL 1416516 (9th Cir. April 21, 2017), decision available here.

Players: Decision by Judge Graber, joined by Judges Ikuta and Hurwitz.

Facts: Ms. Gobin sought a domestic violence restraining order against Fryberg. Id. at *1. A Tribal Police Officer (and brother-in-law of Gobin) filed a completed service of return of notice of a hearing on the restraining order. Id. Fryberg didn’t show at the hearing, and a restraining order was entered against him. Id.
  Fryberg got guns while subject to that restraining order. He was charged with 18 USC § 922(g)(8), possessing firearms while under a D.V. protection order. Id. at *2.
  An essential sub-element of this federal charge was that Fryberg had actually been served with notice of the hearing that produced the protective order. Id. Before the case went to trial, the Tribal Police officer that had allegedly served the notice of the hearing, died. Id.
  Over defense objection, the district court admitted the (deceased) officer’s certificate of service: Fryberg was convicted. Id.  

Issue(s): “Defendant argues that the district court erroneously admitted the key piece of evidence that the Government introduced to show that Defendant received actual notice of the hearing on the protection order—the return of service of the hearing notice . . . Defendant argues that (1) the district court erred in admitting the return of service as a ‘public record’ under Federal Rule of Evidence 803(8) and (2) the admission of the return of service violated the Confrontation Clause of the Sixth Amendment.” Id. at *2 (footnotes omitted).

Held:We conclude that the admission of the return of service did not violate either the rule against hearsay or the Confrontation Clause of the Sixth Amendment, and we affirm Defendant’s conviction.” Id. at *1.

Of Note: Crawford “‘rescued’ the right of confrontation ‘from the grave.’” Id. at *5 (quoting Clark, 135 S. Ct. at 2184 (Scalia, J., concurring in judgment)). 
  Fryberg (we would argue) re-entombs it.
   As it confronts Confrontation, the Ninth admits that Fryberg “lies somewhere between” two post-Crawford Ninth decisions. Id. at *6. This “return of service” document, the Court concedes, “had more of a criminal prosecutorial function than the immigration document at issue in Orozca-Acosta.” Id. Ultimately, however, the Ninth deems this “notice” document as something that’s primary purpose was not for use at a future criminal trial – and therefore not subject to Crawford. Id. at *6.
   Way back in ’05, it was clear that the core Crawford question would be: “what is testimonial evidence?” See blog entry here. Fryberg is one disappointing answer.

How to Use: Judge Graber delivers a number of evidentiary sub-holdings that ultimately lead to the decision’s outcome. The Court concludes that the officer was “under a legal duty to report when he completed the return of service,” satisfying FRE 803(8)(A)(ii). Id. at *3.
  Even though the Tribal Officer was a cop, and even though Fryberg faced a criminal case, the Court holds that the "notice of service" was not “a matter observed by law-enforcement personnel” (an express FRE limitation on the “public record” hearsay exception in a criminal case.) Judge Graber deems the notice of service a “largely ministerial act” to avoid this FRE limitation. Id. at *4.
  Finally, the Court rejects Fryberg’s arguments that a “lack of trustworthiness” undermined the admission of this hearsay evidence – the defense contended that the alleged place of service did not, in fact, exist, and observed that the deceased officer was also the D.V.-complainant’s brother-in-law. Id. at *5.
  Fryberg is, unfortunately, a must-read when the witness stand is empty, and the government’s case relies on paper instead of testimony. The "testimonial" legal landscape is not yet fully defined, but this case is another Ninth landmark.
For Further Reading: Three Ninth jurisdictions – San Francisco, Los Angeles, and an island in the Pacific – were called out by A.G. Sessions during his first Sunday morning interview. See “This Week” interview of 4/23/17 here.       Mulling tea leaves? Watch this interview.

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


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