Sunday, February 25, 2018

Case o' The Week: Deep in the Heart of Texas - Aubry Johnson and Primary Jurisdiction for State and Federal Custody

 Release, release, release encore: Texas bungles, Ninth deplores ignores.
Aubry Johnson v. Gill, 2018 WL 943991 (9th Cir. Feb. 20, 2018), decision available here.

Players: Decision by Judge Ikuta, joined by Judge Tallman. 
  Dissent by visiting Chief D.J. Oliver.

Facts: In Texas state court, Johnson received a long sentence for robbery. Id. at *2. While he was still in state custody, the Feds brought him to district court on different charges. Id. Johnson got another federal sentence – to be run consecutive to the Texas term. Id.
  The Sheriff of Dallas County then began a remarkable chain of mistakes.
  In August 2009, while Johnson was still serving his state sentence, the Sheriff mistakenly released him to the U.S. Marshal. Realizing their mistake, the Sheriff asked for Johnson back from the Feds. Id.
  “A short while later . . . the Dallas County Sheriff's Department informed the Marshals Service that Johnson had completed his state sentence and that the department intended to release Johnson unless the Marshals Service took custody of him. On December 14, the Dallas County Sheriff's Department transferred Johnson to the Marshals Service. This was also a mistake.” Id.
  Johnson finally finished his state sentence, but instead of then releasing him onto the federal detainer to finally start his federal term, the Sheriff mistakingly released him altogether. Id. at *3.
  Johnson was later re-arrested, started his federal term, and filed a § 2241 petition contesting the BOP’s time calcs.

Issue(s): “Johnson objected to [the BOP’s] calculation; he argued that his federal sentence commenced on one of the occasions when the state erroneously transferred him to the Marshals Service . . . . Therefore, Johnson contends, he is entitled to credit against his federal sentence for the time period between August 2009 and June 2011, even though the state already gave him credit for this same time period.” Id. at *3.

Held: “Consistent with our implicit conclusion in Taylor, and with the many decades of judicial interpretation of § 3585 and its predecessors, we therefore interpret ‘custody’ in § 3585(a) as ‘legal custody,’ meaning that the federal government has both physical custody of the defendant and the primary jurisdiction necessary to enforce the federal sentence. Accordingly, under § 3585(a), ‘[a] sentence to a term of imprisonment commences on the date’ that the federal government has primary jurisdiction over a defendant who is ‘received in custody awaiting transportation to’ the official detention facility.” Id. at *5.
  “Because a state’s transfer of temporary control of the defendant ‘extends no further than it is intended to extend,’ . . . and a state that mistakenly transferred a prisoner to the federal government lacked the intent to surrender primary jurisdiction, such a mistaken transfer does not constitute a relinquishment of primary jurisdiction. If the state retains primary jurisdiction, the federal sentence does not commence pursuant to § 3585. Therefore, a prisoner's federal sentence does not commence when the state mistakenly transfers a prisoner to the federal government.” Id. at *6.

Of Note: In a compelling dissent, DJ Oliver worries that this new “primary jurisdiction” rule will unfairly punish inmates who are mistakingly transferred between sovereigns. Id. at *9.
  Judge Ikuta tries to assuage that fear with assurances that the district court can then “fashion remedies.” Id. at *8. Cold comfort for inmates faced with bungling jailers, but seize this slim reed if clients are cheated of custodial credits.

How to Use: For federal clients who owe state time, determining which sovereign has “primary jurisdiction” is critical when advising of custodial exposure. Aubry Johnson gives a long and detailed explanation (and some fuzzy new rules) on how to answer that question -- it is now the place to start for this analysis.
For Further Reading: Whither the Ninth’s two Trump nominees? Hawaiian candidate Mark Bennett should start shopping for robes.
  Oregon candidate and former Judge O’Scannlain clerk Ryan Bounds is having a rougher go of it, though his confirmation appears to be moving forward.
  For an interesting analysis on these judicial developments from another O’Scannlain clerk, see Above the Law article here

Image of Dallas County Sheriff badge from

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


Wednesday, February 21, 2018

Johnson v. Gill, No. 15-16400 (2-20-18)(Ikuta w/Tallman; dissent by Oliver).

The petitioner ping-ponged between state and federal custody.  Serving a state sentence (6 years), and then a consecutive federal sentence (88 mos), the petitioner was released to federal custody not once, but twice — and was placed on state parole for a period before the Marshals came calling and took him in. Petitioner argued that his federal sentence should begin running when he was first taken into federal custody because BOP then had primary custody of him.

The 9th disagreed. The 9th pointed out that the State’s erroneous transfer did not mean it relinquished primary jurisdiction. The petitioner was in State custody first, and the transfers were errors, not manifestation of relinquishment. The State even gave petitioner credit for the federal custody.  The federal authorities also gave petitioner federal credit when he was placed on State parole.

Dissenting, Oliver argues that petitioner’s time in federal custody should count against his federal sentence.  The State had given up primary jurisdiction, whether intentional or erroneously, and the BOP had his body. When he was in federal custody, he was there to commence his federal sentence.

The decision is here:

Sunday, February 18, 2018

Case o' The Week: Stay & Abey A-OK - California Rule of Professional Conduct 5-110 and Section 2254 Litigation

 Ethical rules for prosecutors have no teeth, some complain.
 (Tell that to the A.G. now dealing with exhaustion in Fresno . . . .)
Diaz-Sanchez v. Beard, 2018 WL 636921 (9th Cir. Jan. 31, 2018).

Ed. Note: A slow week in the Ninth is a good opportunity to flag developments for an important new Cal. Rule of Professional Conduct – 5-110, “Special Responsibilities of Prosecutors.”

Players: Intriguing opinion by ED Cal Magistrate Judge Sheila K. Oberto.

Facts: Diaz-Sanchez, a state prisoner, was convicted of multiple counts of second degree murder, attempted murder, and kidnapping: he was sentenced to 45 years to life. Id. 
  In 2014, he filed a § 2254 petition. Id. at *1. In 2017, the district court adopted the M.J.’s 2015 recommendations to dismiss as time barred. Id. 
  In 2017, Diaz-Sanchez moved for reconsideration: that claim remains pending. Id. 
  In 2018, the Petitioner moved to stay and abey unexhausted claims based on the November 2017 change to California Rule of Professional Conduct 5-110. Id. at *1. Diaz-Sanchez set forth three unexhausted claims under the new rule, invoking the 
  1) special duties of a prosecutor to disclose information about a witness which is relevant to evidence that calls into question trial counsel’s mental competency; 
  2) duty to disclose State Bar decisions, and 
  3) duty to disclose impeachment evidence and not to introduce false evidence.” Id. at *2.
  The A.G. did not Reply to the motion. Id.

Issue(s): Are Petitioner’s disclosure claims, “plainly meritless?” Id. at *2 (citing Rhines v. Weber, 544 U.S. at 269, 278(2005).

Held:From the limited record, the Court cannot say that these disclosure claims are ‘plainly meritless.’ . . . Further, nothing in the record suggests that Petitioner has intentionally or maliciously failed to pursue his potentially meritorious claim. . . . Indeed, Petitioner could not have pursued these claims because the California Supreme Court adopted the new rule on November 2, 2017, after Petitioner filed his Motion for Reconsideration on October 5, 2017. Accordingly, the Court finds good cause for the unexhausted claim and will grant a stay and abeyance under Rhines.” Id. at *2 (internal quotations and citations omitted).

Of Note: New Rule 5-110 largely tracks ABA Model Rule 3.8. Compare California Rule of Professional Conduct 5-110, available here , with Model Rule 3.8, available here.
  Rule 5-110 is magnificent. Happily, in our view this enlightened new rule applies with equal force to federal prosecutors practicing in California. Thanks to the Citizen’s Protection Act (and through the local rules of District Courts likethe ND Cal.), California rules of professional conduct apply (we contend) to AUSAs practicing in the Golden State. 
  The ND Cal FPD has modified our initial discovery letters to include Rule 5-110 requests, and a potential 5-110 disclosure issue has already lurked around the edges of federal NorCal trial. 
  Potent stuff, this: a new rule that merits very close study by California’s state and federal defense bars.

How to Use: Subsection (F) of 5-110 requires a prosecutor to disclose to a court and / or the defendant, after conviction, any “new, credible and material evidence” creating a “reasonable likelihood” that a convicted defendant did not commit the crime. We routinely send pre-conviction discovery letters – in the vein of Diaz-Sanchez; should we also send California D.A.s and AUSAs post-conviction requests for Section (F) evidence?
Nominee Mark Bennett
For Further Reading: President Trump has nominated his second Ninth jurist (the first nominee is from Oregon). 
   Former Hawai’i State Attorney General Mark Bennett was recently nominated to fill Judge Richard Clifton’s seat. See article here
Judge Mark Bennett
   Though blue slips are not yet formal for Mr. Bennett, from the initial reactions of the two (Democratic) state senators a smooth confirmation seems likely. 
  Hawai'an Mark Bennett would presumably be a very different jurist than the Iowan Judge Mark Bennett, who frequently visits in the Ninth (though it is always foolish to judge a judicial book by its Presidential cover).

The Honorable District Judge Mark Bennett from 

Nominee Mark Bennett from 

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



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Sunday, February 11, 2018

Case o' The Week: Savor the Waiver - Laney and Defendant Confirmation of Jury Waivers

 Defense counsel wants a bench trial.
 The AUSA wants a bench trial.
 The district court is fine with a bench trial.
 Is the defendant down with an empty jury box?

 The Ninth would like to know.
United States v. Laney, 2018 WL 706497 (9th Cir. Feb. 5, 2018), decision available here.

Players: Decision by Judge Hawkins, joined by Judges W. Fletcher and Tallman. 
  Admirable win for ND Cal CJA panel stalwarts Scott Sugarman, Sugarman & Cannon, S.F., and for Robert Beles, Beles & Beles, Oakland.

Facts: Laney and his co-defendant, Federico, were managers in construction companies. Id. at *1. In a complicated scheme, they were accused of colluding to inflate costs, then pocketing payments for fictitious work. Id. at *2. They were charged with mail fraud. Id.
  Trial counsel (different attorneys than appellate counsel) submitted stipulations for a bench trial, with counsel’s e-signature. The stips had no signatures from the defendants, and no indication that defendants’ were involved in discussions leading to the stip. Id. The district court accepted the stip, there was an eleven-day bench trial, and the pair were found guilty of multiple counts. Id.
  Laney and Federico were sentenced to sixty and seventy months, respectively. Id. They appealed, challenging (among other things), the validity of the jury waivers.

Issue(s): “In these consolidated appeals, we must determine whether a presumption of validity attaches to a stipulation by defense counsel that their clients waive their right to a jury trial on their criminal charges.” Id. at *11 (footnote omitted). “Laney and Federico contend that their convictions must be vacated because the record does not reflect adequately that they made voluntary, knowing, and intelligent waivers of their rights to a jury trial.” Id. at *3.

Held:We conclude that counsel’s stipulations in this case did not raise a presumption of validity, and the record is insufficient to show that the jury trial waivers were voluntary, knowing, and intelligent. Therefore, although we conclude that the convictions are supported by sufficient evidence, we reverse and remand based on the ineffective jury trial waivers.” Id. at *1 (emphasis added).

Of Note: In a decision of first impression, the Ninth joins sister circuits in holding that a waiver of a jury trial must (logically) be signed by the defendant him or herself. Id. at *3.
  That’s a laudable rule, but as a practical matter, this new requirement for defendant signatures is probably irrelevant. DJs alarmed by this trial do-over in Laney will likely heed the Ninth’s advice – the Circuit has “implored the district courts to conduct colloquies with the defendant before accepting a waiver of his or her right to a jury trial.Id. at *3 (quotations and citation omitted).
  If you and the government plan on a bench trial, anticipate a DJ demanding a defendant’s in-court colloquy and express waiver (a better policy approach, in any event). This is a heck of a waiver to ask of a defendant: best that our clients going into that decision very well informed, and very clear on the record.

How to Use: Sasquatch in the Humboldt redwoods. 
 Bipartisanship in D.C.

A Bipartisan Bigfoot in D.C.

  Conditional pleas in the Northern District of California. 
  Each of these fantastic beasts are rumored to exist -- though documented instances have proven exceedingly rare.
  Add to this list, “Structural Error reversal on appeal.”
  Structural Error, a great bulwark of constitutional rights, has been steadily eroded on all fronts in the last decade or two. That makes the structural error reversal in Laney particularly sweet. Id. at *5.
  Note that Judge Hawkins specifically rejects the government’s scramble at post-trial reconstruction, offered to try to salvage the convictions from the structural error reversal. Id. This is a useful rebuff for appellate folks to remember in future cases: Rule 23 issues (jury waivers) are evaluated in the context of the time of the waiver, not in retrospect after the trial is complete.
For Further Reading: Remarkably, AUSAs often balk at bench trials (the federal government really doesn’t trust a federal judge to deliver a verdict?) Should the federal government get to veto our clients’ request for a bench trial, particularly in sensitive cases, such as child porn?
  For an interesting article arguing against a black ball for the government, see, Waiver of Jury Trials in Federal Criminal Cases: A Reassessment of the “Prosecutorial Veto” available here 

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


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Wednesday, February 07, 2018

Earp v. Davis, No.15-56989 (2-6-18)(Tallman w/Farris & N. Smith).

Affirming the district court’s denial of further discovery and dismissal of claim, the 9th holds that the court did not abuse its discretion in declining to authorize further discovery to support petitioner’s claim for prosecutorial misconduct. The petitioner sought to connect those responsible for evidence spoliation of DNA, supporting a claim of innocence, with witness intimidation. The court, after a hearing, found no basis. The 9th also found that the court did not improperly weigh and value the credibility of the petitioner’s witnesses.

The decision is here:
US v. Laney, No. 15-10563 (2-5-18)(Hawkins w/Fletcher & Tallman).

The 9th reverses convictions based on ineffective jury waivers. Defense counsel’s stipulation that their clients waived their right to a jury trial on fraud charges. Counsel’s stipulations were electronically signed, and filed following a conference call with the court. There is no record that the defendants were present during these calls. The stipulation set forth reasons for a bench trial, including evidence issues, scheduling, and allowance for a joint trial, which permitted various defendant’s statements to come in against co-defendants as to avoid a Bruton problem.

The 9th concludes that the record does not adequately show the waivers were voluntary, knowing, and intelligent as required by Fed R Crim P 23(a)(1). Usually written waivers are required; an oral waiver is permissible if the record clearly reflects personal express consent, in open court, knowingly and intelligently given. A post-trial reconstruction of the record cannot substitute.  The stipulation here is “tantamount to an oral waiver by counsel outside the defendant’s presence, which our precedent deems insufficient.” 13. The error is structural and reversal and remand is required.

The 9th rejects the contention that the evidence was insufficient to support the convictions.

The decision is here:

Sunday, February 04, 2018

Case o' The Week: Low Marks for Gov't Semantic Gymnastics - Lidia Rodriguez and "Reckless Disregard" Jury Instruction

  Huzzah for the Heartland.
United States v. Lidia Rodriguez (9th Cir. Jan. 30, 2018), decision available here.

Players: Notable decision by the Hon. D.J. Mark Bennett, N.D. Iowa, joined by Judges Kozinski and Friedland. 
  Admirable win for AFPD M. Edith (“Edie”) Cunningham and FPD Jon Sands, Office of the Federal Public Defender, District of Arizona. 

Facts: Lidia Rodriguez, a citizen, was stopped at the border coming into the States: she and her passenger were questioned. Id. at *1. The passenger had a border crossing card, but was allegedly “ill at ease,” wore a new shirt (a purported sign of aliens who changed out of clothes after crossing the desert), and had an empty wallet despite his story that he was coming to the States to shop. Id. at *1-*2. The passenger later admitted in a depo (admitted at trial) that he was an undocumented alien with a false border-crossing card. Id. 
  Rodriguez was tried on a charge of transporting an illegal alien for financial gain. The government sought a “reckless disregard” instruction. Id. at *3. The reckless disregard instruction ultimately given to the jury did not require proof that Rodriguez was aware of the risk (a subjective component). Id. at *4. 
  After an Allen charge, and an alternate juror subbing in, Rodriguez was convicted. Id. at *3.

Issue(s): “Rodriguez seeks reversal of her conviction and remand for a new trial . . . . She contends a jury instruction incorrectly defined ‘reckless disregard.’” Id. at *1.

Held:We reverse.” Id. 
  “[A] correct definition of ‘reckless disregard,’ consistent with Supreme Court and Ninth Circuit law, would include the defendant’s disregard of a risk of harm of which the defendant is aware.” Id. at *7 (quotations and citations omitted) (emphasis added).

Of Note: Lidia Rodriguez is a terrific decision – both for its legal analysis, and for its holdings. In a careful deconstruction, Judge Bennet surveys the evolution of the “recklessness” mens rea requirement. He parses (and rejects) cases that relied upon in the commentary to the Ninth’s model instruction, and explains why the Eighth, Tenth, and Eleventh have it wrong in light of the Supreme’s 1994 Farmer opinion. Id. at *3-*8. 
  Along the way, the Ninth grumbles that it is “unable to follow or accept the government’s semantic gymnastics” arising from a recklessness definition that didn’t require a subjective awareness of risk. Id. at *6. 
  Rodriguez is now a lead opinion on the “reckless” mens rea standard – it is your starting point in any case where this instruction may loom. (Along these lines, dust off your Rolodex and start calling shrinks. We’ll need mental health experts to address our clients’ (subjective) capacity to appreciate the “risk of harm.” With “subjective” in play for this instruction, our clients’ various impairments become very real and relevant issues).

How to Use: Appellate advocates –read Rodriguez. The Court gives us a very favorable read on the preservation of objections for instructional error, id. at *4, sternly enforces the government’s waiver of its “harmless error” argument, id. at *8, and rejects that damnable “exceptional circumstances” trope that gifts the government a Mulligan on its harmless error whiffs, id. at *9-*11. 
  Our AOB’s will glitter with Rodriguez nuggets.
Hon. Judge Mark Bennett
For Further Reading: Who is this Hawkeye, this outspoken visiting D.J.? 
  The Honorable District Judge Mark Bennett is a jurist with views. He’s a brave critic of the grave injustices of mandatory minimum sentences. See NPR interview here. 
  He’s a brave visiting judge in the Ninth, cheerfully challenging incorrect majority opinions with dissenting dissertations. See United States v. Leal-Felix, 625 F.3d 1148, 1151 (9th Cir. 2010) (Bennett, D.J., dissenting), rev’d by 665 F.3d 1037 (9th Cir. 2011) (en banc). 
  And perhaps most notably, Judge Bennett is at the forefront of efforts to recognize the reality of implicit bias, and its pervasive impact on our criminal justice system. See, e.g., Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes, available here
  Love those heartland values.

Image of the Honorable Judge Mark W. Bennett from

Steven Kalar, Federal Public Defender Northern District of California


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Thursday, February 01, 2018

US v. Watson, No. 16-15357 (2-1-18)(per curiam w/Wallace, Watford, & Sands).

The 9th affirms a denial of a habeas petition arguing that federal armed bank robbery, 18 USC 2113(a) and (d), is not a “crime of violence” under the force clause of 924(c). The 9th reasons that since unarmed bank robbery requires force, so too must armed bank robbery.  The 9th rejects the argument that one way of committing bank robbery, through intimidation, does not meet the Johnson standard requiring violent physical force. The 9th finds that “intimidation” requires a taking of property in a manner that a reasonable person would fear of bodily harm.  Gutierrez, 876 F.3d at 1256-57.  It requires an implicit threat of harm. The 9th also rejects the argued lack of adequate mens rea in intimidation, holding that “intimidation” requires a knowing use of violent physical force; it cannot be through negligence. Lastly, the 9th rejects the amicus argument that even if the offense of bank robbery is a COV, it is one indivisible statute that also includes extortion, which is not a COV.  The 9th concludes that the statute is really two offenses, bank robbery and extortion.

Kudos for the effort of Peter Wolff, FPD Ofc, Hawaii, and amicus of AFPDs Mia Crager, David Porter, and FPD Heather Williams of Cal E (Sacramento).
The decision is here:
US v. Walton, No. 15-50358 (2-1-18)(Rakoff w/M. Smith & Friedland).

An ACCA enhancement is reversed.  Under US v. Dixon, 805 F.3d 1193 (9th Cir. 2015), California robbery is not a COV. The 9th also concludes that first degree robbery under Alabama is not a COV because the state’s third degree robbery is not sufficiently violent to qualify as a COV. Third degree becomes first degree if the defendant had a deadly weapon. Third degree robbery requires force but it can be nonviolent force.  For an ACCA COV, the Supremes have required “substantial” force. Johnson, 559 US at 140; and Castleman, 134 S.Ct 1405(2014). Such force is lacking here and the govt has not argued divisibility.  Thus, the defendant goes from 4 predicate COV felonies to 2, and is not ACCA.

Congrats to Jonathan Libby, AFPD, Cal Central (Los Angeles).
The decision is here: