Thursday, November 30, 2017

US v. Molinar, No. 15-10430 (11-29-17)(Friedland w/Christen; dissent Fletcher)(Note:  This is an Ariz. FPD case).

The 9th holds that Arizona's robbery statute does not categorically involve the use of violent force.  As such, it does not qualify as a "crime of violence" under the force clause.  The majority however does find that it qualifies as generic robbery under the Guidelines definition of the term. Dissenting, Fletcher asserts that the statute is overbroad with respect to generic robbery as well.
In the majority opinion, the 9th recognizes that the Supreme Court's decision in Johnson v. US, 559 US 133 (2010) overrules prior 9th precedent that found the Arizona statute to be a COV under the force clause.  The 9th's analysis for the generic or enumerated term focuses on "immediate danger to the person." In its analysis, it concludes that the state's application of robbery to include an implied threat falls within a generic understanding.  The majority acknowledges that it is a close question.  This also applied to attempted robbery.

In the dissent, Fletcher argues that the state courts expanded the generic definition under State v. Moore, 2014 WL 4103951 (Ariz Ct App) to beyond the generic definition.
Although the sentence was confirmed, Ryan Moore, AFPD with Arizona (Tucson), fought hard and well, overturned 9th precedent, won on "force," and has a circuit split.

The decision is here:

Tuesday, November 28, 2017

US v. Robertson, No. 16-30178 (11-27-17)(Gould w/McKeown & Rothstein).

This is an interesting opinion regarding the reach of the Clean Water Act, how to discern a holding from a Supreme Court fractured opinion, a Circuit split as to the test, reconciling 9th precedent, and finally an affirmance of the conviction for discharging dredged materials into wetlands and a tributary.  There is more: the 9th holds that “waters of the United States” is not unconstitutionally vague and also finds that you can’t raise sufficiency of the evidence in a first hung jury in the second trial. The 9th finally finds no error in allowing expert testimony.

If you have a CWA case, this opinion is critical.  The 9th adopts Kennedy’s concurrence in Rapanos v. US, 547 US 715 (2006), which creates a significant nexus test between wetlands and traditionally understood navigable waters. The opinion discusses how the 9th treats precedent, other circuits, and a fractured Supreme Court.

Tough fight is put up by Michael Donahue of D. Mont. Defenders (Helena).

The decision is here:


US v. Johnson, No. 16-10184 (11-27-17)(Tallman w/Siler & Bea).

The 9th holds that a parolee’s significantly diminished privacy interests allow a warrantless search of his cell phone. Riley v. California does not apply and neither does the 9th Cir’s decision in US v. Lara, 815 F.3d 605 (9th Cir 2016)(applying Riley to probationer’s cell phones). The 9th finds no error in the finding that the parolee’s aunt gave consent to search the apartment. There was also no Crawford violation, nor hearsay violation, as they were used to rebut a third party culpability defense.  The case was remanded for resentencing on the gov’t’s cross appeal as a prior armed robbery is a crime of violence.

The decision is here:

Thursday, November 23, 2017

Case o' The Week: Brown and Blue and Read All Over - Bud Ray Brown and Federal Escape Charges (from State Jails!)

  No good deed goes unpunished (by a federal prosecutor).
United States v. Bud Ray Brown, 2017 WL 5586562 (9th Cir. Nov. 21, 2017), decision available here.

Players: Decision by visiting First Circuit Judge Lipez, joined by Judges Wardlaw and Owens.  

Facts: Brown was serving a federal sentence when Washington dragged him into state custody on a writ ad prosequendum (related to a state murder charge). Id. at *1. While Brown was in a county jail, a rope made out of bedclothes was discovered hanging out of his cell -- the window itself was gone. Id.
  [Ed. note: watch the fascinating video about this attempt at this link. An anorexic octopus couldn’t escape through the five-inch-wide window slits at the Spokane County jail].
  Brown’s cellmate, Henrikson, was facing federal charges. When Henrikson went to federal trial, the AUSA tried to admit this attempted escape as evidence of guilt. Id. Brown exonerated his cellie with a handwritten declaration, where Brown took full blame for the attempted escape. Id.
  The feds then spun around and indicted Brown for attempted escape, from a county jail. Id. Brown entered an unconditional plea of guilt to the charges. Id.

Issue(s): For the first time in this circuit, we address the impact of a writ of habeas corpus ad prosequendum on the question of whether an inmate serving a federal sentence remains under ‘the custody of the Attorney General’ as per 18 U.S.C. § 751(a) when he is held at a state-run institution pursuant to the writ. [ ] Brown appeals the district court’s denial of his pre-plea motion to dismiss, filed, in part, on the ground that he was not in federal custody as a matter of law at the time of the attempted escape.’ Id. at *1.”

Held: “We now hold that Brown remained under the custody of the Attorney General for purposes of § 751(a) despite his incarceration at a state-run jail, and affirm the judgment of the district court in full.” Id.

Of Note: Wait - why did the AUSA bother to charge Brown with federal attempted escape (and from a state jail, to boot?) After all, the federal attempted-escape indictment didn’t come down until five months after the attempt to escape from county jail was thwarted. Id. at *4. (Plus newscasters and jailers couldn't keep a straight face when trying to describe this inane escape attempt). 
  A single, critical fact changed before the AUSA decided indict a federal attempted escape (from a local county jail): Brown’s handwritten confession offered in his cellmate's trial, taking the blame for the attempted escape and exonerating his cellie.
  Despite this troubling history, the Ninth summarily rejects Brown’s prosecutorial vindictiveness claim in five brief paragraphs. Id. at *4. There is not even the solace of dicta, worrying about the impact of this AUSA’s actions on the integrity of federal criminal trials.
  Brown sends a chilling message to witnesses with the temerity to testify for the defense: a federal indictment may be your reward. Use Brown for your Sixth Amendment fight for defense-witness immunity. The Ninth has now documented the very real dangers that await witnesses who dare to speak up for our clients.

How to Use: The silver lining in this opinion is welcome language on the ability to even take up this appeal, despite the fact that Brown did not have a conditional guilty plea. The Ninth helpfully explains that Brown’s core appeal is a jurisdictional claim, “challenging a conviction independently of factual guilt.” Id. at *2. It is therefore not precluded by the Fed. R. Crim. 11(a)(2) bar on appeals after unconditional pleas. Id. Helpfully, the opinion then collects other issues that dodge the appellate bar after unconditional pleas. Id. at *2 & n.2. 
  Most notably, the prosecutorial vindictiveness claim described above is tackled by the Ninth on appeal. Interesting.
  The take-away? With a solid jurisdictional hook to get you in the Ninth’s door, looks like ancillary (but related) arguments can avoid the 11(a)(2) bar – despite an unconditional plea. 
  Very welcome news, in a world where the Feds seem increasingly desperate to shut down all defense appeals.
For Further Reading: Feeling blue? Senators are, too. 
  The longstanding “blue slip” rule allowed Senators to have a meaningful say in judicial appointments. Last week, Senator Grassley (R-Iowa) announced that confirmation hearings would be going forward for two circuit nominees, despite the absence of blue slips (including one missing from a GOP Senator). See article here.

Image of the Spokane County jail windows and bedclothes-rope from this case, from

Steven Kalar, Federal Public Defender Northern District of California. Website at


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Tuesday, November 21, 2017

US v. Brown, No. 16-30143 (11-21-17) (Lipez  with Wardlaw & Owens).

In an issue of first impression concerning "federal custody,'  the 9th holds that when an inmate is serving a federal sentence, but is held in state custody pursuant to a writ of habeas corpus ad prosequendum, he is still under the custody of the Attorney General for purposes of the offense of "attempted escape" under 18 USC 751(a).  The 9th also held that it had jurisdiction even though the defendant had entered an unconditional guilty plea because the issue was jurisdictional.

The defendant also raised an issue of prosecutorial vindictiveness. The defendant's "attempted escape" charge occurred five months after the conduct, and upon his giving a declaration at his cellmate's trial (the declaration stating that the defendant had been planning an escape for some time).  Because of the timing, the defendant argued that the prosecutor failed to rebut the presumption of vindictiveness.  The 9th held that the court did not err in denying the motion.  Courts defer to prosecutor’s charging decisions pretrial.  Here, the declaration gave the prosecutor evidence.  There is no presumption of vindictiveness.

The decision is here:

Sunday, November 19, 2017

Ninth Demures on Isomer: Kelly and DEA Authority to Temporarily Schedule Controlled Substance Isomers

 Q: What do you get when the DEA temporarily criminalizes an isomer, without making any findings about its dangerousness or whether it is prone to abuse?
 A: 70 months.
United States v. Kelly, 2017 WL 4875214 (9th Cir. Oct. 30, 2017), decision available here.

Players: Decision by Judge Tallman, joined by Judges Gould and Watford.
  Hard fought appeal by AFPD Erica Choi, District of Nevada Office of the Federal Public Defender.

Facts: Kelly sold an undercover officer what was reported to be MDMA – but it was actually “ethylone.” Id. at *3. Ethylone is a “positional isomer” of “butylone.” Id. at *4.
  (“An isomer is a molecule with the same chemical formula as another molecule, but its atoms are arranged in a different sequence. For example, butylone and ethylone share the chemical formula C12H15NO3, but they differ in the location of a functional group.”) Id.
  At the time, butylone was a “designer drug” listed as a Schedule I controlled substance under the DEA’s temporary scheduling authority. Id. at *3. The DEA made specific findings as to butylone (the “parent drug.”) Id. at *6. It did not make findings as to ethylone, an isomer of butylone, and it did not mention this isomer in the required letter to the Secretary of Health and Human Services. Id. at *3.
  After Kelly was charged with possession with intent to distribute ethylone, a Schedule I controlled substance, he moved to dismiss. Id. at *4. The district court denied his request for an evidentiary hearing, to present expert testimony that an isomer does not necessary have the same effects and properties as the substance (parent drug) itself. Id. at *4 & n.7. The court also denied the Fed. R. Crim. P. 12(b)(3)(B)(v) motion to dismiss. Id.
  Kelly entered a conditional plea and was sentenced to seventy months of custody. Id. at *5.

Issue(s): “Kelly argues that the DEA did not place ethylone into Schedule I as a matter of law because §§ 811(h) and 812(b) require that the DEA name and make findings for each individual isomer it intends to temporarily schedule. He contends that the DEA’s failure to do so violated the Constitution’s non-delegation doctrine.” Id. at *5.

Held:Kelly’s argument is misreading the CSA. The plain language of the statute permits the DEA to make findings for a parent substance as a basis to temporarily schedule that substance and its isomers. The DEA properly made findings for butylone and provided notice covering butylone and its isomers as required in §§ 811(h) and 812(b). In following the congressional mandate, we hold the DEA did not violate the non-delegation process.Id. at *6.  

Of Note: This decision has no real relevance anymore to butylone and ethylone: that drug and isomer were permanently added as permanent Schedule I substances on March 1, 2017. See id. at *3 & n.5. The decision’s significance is its holding that the DEA’s findings on a parent drug for a temporary Schedule I designation covers isomers of that parent drug. Id. at*6.
  Curiously, the DEA’s permanent scheduling process (a process with far fewer protections, checks and balances than the temporary procedures) generally only covers optical isomers. Id. at *4.
  There is much angst over the dangers of designer drugs in Kelly, and touted deference to Congressional intent, but the holding itself is a worrisome take on DEA’s power to criminalize drugs on an expedited schedule, with comparatively little review or notice.   

How to Use: What happens when two established policies for reading a statute or regulation come into conflict: the rule of lenity, and Chevron deference? The magistrate judge in Kelly gave the nod to Chevron, holding that the rule of lenity did not apply to an administrative regulation. Id. at *4.
  Judge Tallman avoids this knotty problem, finding the reg was plain so the rule of lenity didn’t come into play. Id. at *8 & n.8.  
  An issue that lives on to be fought another day (not yet resolved by the Supreme Court, reports Kelly).
For Further Reading: What could be worse than the FBI using a snitch that was an undocumented alien, who lied about his identity?
  Loaning him out to another law enforcement agency – without telling them. See L.A. Times article, here

Steven Kalar, Senior Litigator N.D. Cal. Website at


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Sunday, November 12, 2017

Case o' The Week: Of Weird Hairdos (and Batson, too) - Hernandez-Quintania and Prima Facie showings for Batson challenges

 “On its face” (prima facie), an AUSA struck two minority jurors.
  (But turns out the Ninth wants a little more facie in its prima).
    United States v. Hernandez-Quintania, 2017 WL 5103671(9th Cir. Nov. 3, 2017), decision available here.

Players: Decision by visiting Chief D.J. Freudenthal, joined by Judges W. Fletcher and Ikuta. 
  Hard fought appeal by Ass’t Fed. Defender Doug Keller, Federal Defenders of San Diego, Inc.

Facts: Hernandez-Quintania, an undocumented alien was removed repeatedly to Mexico then found in California. Id. at *1.
  At the § 1326 trial, half of the venire “appeared to be minorities,” (said the court). The defense struck four minorities. Id. at *5.
  When the AUSA struck two minority jurors the defense raised a Batson challenge. Id.
  (Recall that the Supreme Court has explained in Foster v. Chatman that Batson is a three-step process:

   1. A prima facie showing by the defense;
   2. If that showing is made, a race-neutral basis for striking required from the government; then
   3. A judicial finding on whether there was purposeful discrimination.)
Id. at *3.
  The court stopped at Batson Step One, and found that the defense had not made a prima facie case. In the course of its Batson analysis, the district court opined that it was a “very mixed” jury composition, including “One guy, Number 3” who “has a weird hairdo from my perspective.” Id. at *4.
  Hernandez-Quintania was convicted.

Issue(s): “Hernandez–Quintania challenges the district court’s finding that he did not make a prima facie showing for his Batson challenge. . . .  Id. at *3.   
  “Hernandez–Quintania argues the district court committed a structural error when it impermissibly speculated as to the race-neutral reasons the prosecutor might have had for striking the juror. [He] also argues the district court misapplied the standard at step one.” Id. at *4.

Held:Hernandez–Quintania did not argue that the two jurors who appeared to be minorities were questioned differently, that the government exercised a pattern of striking apparent minority panel members, that the government struck a large number of panel members from the same racial group, or that the jury composition was disproportionate because of the strikes. In fact, the record demonstrates that the jury contained six apparent minority jurors and that Hernandez–Quintania struck more minority jurors than the government. The totality of the circumstances does not raise an inference that the government’s challenges were racially motivated.
  Hernandez–Quintania also argues the district court erroneously ‘raised’ the prima facie bar by stating, ‘I have to be convinced that it's at least—I won't say likely, but plausible that he was removed solely because of his minority status. And here, I couldn't reach that conclusion at all[.]’ This passing remark does not alter the record, which supports the district court's finding that Hernandez–Quintania failed to offer any support or argument that the government's challenges were racially motivated.” Id. at *5.

Of Note: A different, lead issue in Herndandez-Quintania relates to § 1326 defenses. At trial an agent made reference to the fact that way back in ’04, Hernandez-Quintania had applied for admission. Id. at *2. The government did not, however, introduce at trial any evidence of the outcome of that application, or that the defendant had not reapplied for admission in the removals and reentries after 2004. Id. On appeal, the defense argued these failures of proof barred conviction on this 2016 “found in” case. Id.
  In what appears to be a holding of first impression for the Ninth, visiting Chief D.J. Freudenthal concludes that the “consent to reapply” must come after the most recent deportation.” Id. at *3.  Another rule for the tome of remarkably complex immigration / reentry jurisprudence.

How to Use: Defense counsel played the cards that they drew in this case, but the opinion illustrates the dangers of the fuzzy “totality” review of Batson challenges on appeal. If possible, sharpen initial Batson challenges with something more than just the race of the struck juror to sharpen that prima facie showing.     
For Further Reading: Batson remains as sadly topical as ever. Last June, the California Supreme Court overturned attempted murder convictions for the exclusion of Latinos from a Kern County jury (for the first time in sixteen years!) See California’s top court overturns convictions because prosecutor excluded Latinos from jury, available here.

Steven Kalar, Federal Public Defender, Northern District of California. Website at


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Sunday, November 05, 2017

Case o' The Week: Ninth Cries Fowl(er) on Nexus-less Obstruction - Federal Nexus for witness tampering and obstruction

 How light is the government's burden? The Feds had to prove a nexus that is "more than remote, outlandish, or simply hypothetical." 
  (And they still managed to come up short!)
 United States v. Christopher Johnson, 2017 WL 4974579 (9th Cir. Nov. 2, 2017), decision available here.

Players: Decision by Judge Paez, joined by Judges Berzon and Christen.

Facts: Johnson was a (county) jail deputy. Id. When an inmate used an emergency intercom inappropriately, Johnson and another deputy, Kirsch, responded. The confrontation ended with a violent attack on the inmate. Id.  Johnson wrote several reports about the incident that day. Id.
  Johnson and Kirsch were federally indicted for assault, and Johnson also charged with obstruction under 18 USC § 1512(b)(3). Id. at *2. That statute criminalizes hindering the investigation of a judge or officer of the United States. Id. (quoting Section 1512(b)(3)) (emphasis in opinion).
  The first trial ended in a mistrial: the deputies were acquitted of assault in the second trial. Id. Johnson, however, was convicted of obstruction. Id. In his Rule 29 and new trial motions Johnson argued that Fowler v. United States, 563 U.S. 668 (2011) required proof of a reasonable likelihood that his actions hindered communications to an officer of the United States. Those motions were denied.

Issue(s): “On appeal, Johnson argues that the Government failed to present sufficient evidence of a federal nexus for the alleged offense.” Id. at *1.

Held: “Reviewing de novo and applying the federal nexus standard established in Fowler v. United States, we agree. More precisely, we hold that there was insufficient evidence for any rational juror to find that it was reasonably likely that Johnson’s reports would have reached federal officers. We therefore reverse the district court’s denial of Johnson’s motion for a judgement of acquittal under Federal Rule of Criminal Procedure 29.” Id. at *1.

Of Note: In a decision of first impression, Judge Paez holds that the holding of Fowler, decided in the context of § 1512(a)(1)(c), applies with equal force to a different subsection of the statute: § 1512(b)(3). In so doing, the Court gives a bit of a smack down to the government’s protests, characterizing the government’s argument as “a distinction without a difference,” and an argument that would “make Fowler a nullity.” The Court accordingly declined the government’s invitation “to read Fowler in this nonsensical way.” Id. at *3.
  The punchline? Both of these subsections of the federal obstruction statute now require “a reasonable likelihood that [the obstructive] communication would reach a federal officer.” Id.

How to Use: What exactly is “reasonable likelihood” proof of nexus that is required in a criminal trial? Judge Paez mulls this conundrum in Johnson. It ain’t beyond a reasonable doubt – indeed, the government doesn’t have to even prove “more likely than not.” Id. at *4. The government, however, must “demonstrate that the likelihood was ‘more than remote, outlandish, or simply hypothetical.’” Id. (citing Fowler, 563 U.S. at 678).
  The Second and Fourth Circuits have built on a Third Circuit test, and require “additional appropriate evidence” (whatever that is) to satisfy Fowler’s “reasonable probability” test. Id. at *4.
  In Johnson, Judge Paez dodges the final question of whether (or what) “additional appropriate evidence” is a proof requirement – under any analysis, there was insufficient proof of a nexus here for conviction. Id. at *4-*5. The precise jury instructions required for the federal nexus component of this offense remain a fight for another day in the Ninth. If facing these charges, push the boundaries for the highest standard of proof you can muster. Johnson has a very thoughtful discussion of three circuits’ treatment of this issue at *4: start the battle with this Johnson’s helpful review of the current state of the law.
For Further Reading: The author of Johnson, the Honorable Judge Richard
The Hon. Judge Richard Paez
Paez, waited 1,506 days from his nomination by President Clinton until his confirmation in the senate: over four years. See article here. At the time, Judge Paez held the record for the longest Senate wait for federal robes.
 Things have changed.
  Last week, four Circuit judges were confirmed in just one week (with a DJ thrown in for good measure). See article here . The speed and volume of Senate confirmations last week came close to setting new records.
  Early suspicions are being, well, confirmed: the venerable Senatorial blue slip (or lack thereof) is becoming less of a factor in the pace of a judicial confirmation. See generally here; see also Memorandum of the Honorable Senator Feinstein of September 25, 2017, available here.
  As for the Ninth?  There is one nominee thus far, in Oregon, to replace Judge O’Scannlain. See judicial nomination report here; and press release here
   Three additional spots remain open in the Circuit: the seats of the Honorable Judges Harry Pregerson, Barry Silverman, and Richard Clifton. See United States Courts, Current Judicial Vacancies, available here.  

Image of “Obstruction of Justice” from

Image of a blue slip by US Congress -, Public Domain,

Steven Kalar, Federal Public Defender, Northern District of California. Website available at


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Friday, November 03, 2017

US v. Hernandez-Quintania, No. 16-50171 (Freudenthal w/Fletcher & Ikuta). 

This is an appeal from a 1326 illegal reentry conviction. Two interesting issues: (1) when does permission to reenter need to take place; and (2) Batson.

The defendant was removed from the United States in 2015.  In 2016, law enforcement found him lying down in an intersection.  A 1326 charge, and a SR violation (from 2014), followed. At trial, the government presented evidence that permission was not given since the 2015 removal.  However, an agent made reference to an application for admission in 2004.  On appeal, the argument was that the application could have been granted or was still pending or there was insufficient evidence to convict. 

The 9th rejected the argument.  The 9th examined the statute, and the plain text, and held that: "In examining the language of the statute, we conclude that the Attorney General's consent to reapply must come after the most recent deportation."

As for Batson, the prosecutor struck two minorities from the jury pool.  The defendant raised a Batson challenge.  The district court found that no prima facie case was established to give to an inference of discriminatory purpose.  The court observed that the pool was very mixed; and that there were a number of minorities seated on the jury. The 9th agreed.  The 9th found that the court's musing why the prosecutor may have struck the jurors were not structural error.  The defense failed to show that these minority prospective jurors were questioned differently, exercised a pattern of striking minority jurors, struck a large number of minority jurors, or that the pool was disproportionate.
The decision is here:

Thursday, November 02, 2017

US v. Johnson, No. 16-50018 (11-2-17)(Paez w/Berzon & Christen).

The 9th reverses the denial of a judgment of acquittal in an obstruction of justice prosecution under 18 U.S.C. § 1512(b)(3).  The prosecution, and conviction, was for failing to include material information about the use of force against a county inmate in the Santa Barbara Jail. (The jury acquitted on the assault charge).   The 9th held that the government failed to show a nexus with a federal prosecution, or that the information would have reasonably reached federal officers. In so holding, the 9th applied the standard of Fowler v. United States, 563 US 668 (2011).  Although Fowler concerned 1512(a)(1), witness tampering, it is applicable to obstruction.  Fowler requires a "reasonable likelihood" of tampering, and that standard should be used here.  In this matter, the prosecution only presented evidence that the defendant (a corrections officer) knew of the constitutional prohibition against excessive force, and that an expert witness had reviewed FBI witness interviews.  The prosecution did not present evidence that federal officers were in contact with the county; had investigated similar incidents in the past; or had established a policy of investigating such beating or striking incidents, assisting the state and county, or sharing such information.
The decision is here: