Sunday, September 30, 2018

Case o' The Week: The Forbidden Power - Lynch and Jury Nullification

   Nullification: A critical power of the jury, and a violation of a juror's oath.
United States v. Lynch, 2018 WL 4354373 (9th Cir. Sept. 13, 2018), decision available here.

Players: Decision by visiting Judge Rogers, joined by Judge Bybee. Compelling dissent by Judge Watford. 
   Hard-fought appeal by AFPD Alexandra Yates, C.D. Cal. Federal Public Defender.

Facts: In 2007, the Feds charged Lynch with (openly) running a medical marijuana dispensary. Id. at *2. He went to trial.
   During voir dire the district court warned the jury, “nullification is by definition a violation of the juror’s oath.” Id. at *3. The court then asked each juror if they could abide by an oath that “they could not substitute your sense of justice, whatever it may be, for your duty to follow the law, whether you agree with the law or not.” Id. at *12.
  Lynch testified, and explained that an (unidentified) DEA employee told him that the Feds were going to let the counties and state handle marijuana dispensaries. Id. at *3. Lynch was convicted.
  At sentencing, the court found Lynch eligible for Safety Valve on a 5-year mand-min, and sentenced him to a year and a day. Id. at *4.
Issue(s): “Lynch assigns error to a warning against nullification given . . . at voir dire.” Id. at *12.

Held: “This warning was permissible . . . because it was an appropriate exercise of a district court’s duty to ensure that a jury follows the law, and it was additionally justifiable given that the need for the warning was a risk that Lynch’s counsel had himself invited.” Id. “The district court’s caution to the jurors that they should not substitute their own sense of justice for their duty to find facts pursuant to the law was entirely appropriate as a discharge of the court’s own duty to forestall lawless conduct.” Id.

Of Note: The Lynch nullification instruction traces back to the misguided Rosenthal marijuana prosecution, in the Northern District of California. See id. at *12 (citing Rosenthal favorably). Lynch argued that the instruction in his case violated the Ninth’s later Kleinman decision, that prohibited a court from threatening to punish a jury that nullified, or a suggestion that a nullified verdict is unlawful. Id. at *13; see also Kleinman blog entry here. In Lynch, Judge Rogers disagrees and tries to distinguish Kleinman. Id.
The Hon. Judge Paul Watford
   Dissenting Judge Watford has the better argument. Id. at *19. Judge Watford correctly frames the true issue in the case: “May the court instruct jurors that they are forbidden to engage in nullification, and if so, how forcefully may the court deliver the message?” Id. at *20. The dissent is a thoughtful opinion, carefully describing the historical importance of nullification and explaining why the court in Lynch crossed the line. For those who care about the power (not the “right”) of the American jury, this dissent is a must-read.
   Interestingly, jury nullification is an issue that crosses partisan lines -- good Federalists care deeply about the power of a jury to act as “the conscious of the community.” Id. at *19. Hopefully Judge Watford’s dissent catches the eye of some en banc allies on the Ninth.

How to Use: Déjà vu, all over again. Eight years ago, NorCal suffered under a USAO’s policy that demanded indiscriminate filing of priors – a policy that triggered mandatory minimums when a defendant had the temerity to seek pretrial release. See blog entry on “Priors Policy” here. 
  Some worry this ill-considered “priors policy” may be resurrected in the Northern District. If the “priors policy returns,” read Lynch.
  In Lynch, visiting Sixth Circuit Senior. Judge Rogers eviscerates courageous mand-mins efforts: an attempt to inform the jury of the sentencing exposure in the case, and an attempt by a frustrated D.J. to use Safety Valve to avoid the injustice of a five-year mandatory minimum. (Ironically, an act of judicial nullification in a jury nullification case).
  Lynch is an aggravating, but essential, read for anyone fighting mandatory minimums in federal court.
For Further Reading: Lynch perpetuates “the world’s silliest legal dichotomy: Juries can nullify, but lawyers and courts can’t, or won’t, tell them that they can. Advocates for nullification call it a right; opponents call it a power.” 
  For a compelling piece supporting Judge Watford’s dissenting views, see History is clear: Juries were supposed to be able to overturn laws,” available here 

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


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Thursday, September 27, 2018

US v. Estrada, No. 16-50439 (9-18-18)(N. Smith, Berzon & Castel).

The 9th affirms the order denying a motion to suppress a wiretap.  In so affirming, the 9th finds that the district court did not abuse its discretion in concluding the wiretap was necessary, and that other investigative procedures were not sufficient.  Here, the possible use of a high-level confidential informant to infiltrate the gang still might not have resulted in the prosecution of all members, there were questions of corroboration, and there may have been the risk of tipping off, discovery, or retaliation.

The decision is here:


Saturday, September 22, 2018

Case o' The Week: Shotcaller Snitch but Feds "Need" Wire - Estrada and Necessity Showings for Title III Wiretaps

   “Necessity” is the mother of discretion.
United States v. Estrada, 2018 WL 4440367 (9th Cir. Sept. 18, 2018), decision available here.

Players: Decision by Judge N.R. Smith, joined by Judge Berzon and D.J. Castel, S.D. N.Y.

Facts: The FBI began an investigation of the “Westside Verdugo,” a street gang “subordinate to the Mexican Mafia.” Id. at *2. During the investigation (and before the wiretap), the FBI flipped Jonathan Brockus, a “shot-caller” in the organization. Id.
  Brockus identified the Mexican Mafia link who “taxed” the Verdugo’s, successfully participated in a controlled delivery to the Mexican Mafia contact, and let the Feds identify a high-level player. Id. The government successfully obtained a Title III wiretap, with an affidavit that discounted Brockus’ value. Id.
  After that initial tap, and before a re-up, Brockus gave information regarding a homicide: that interview wasn’t reported in the wiretap re-up at *3. Id.
  After the wiretap was over, Brockus was interviewed again, gave helpful information, and was a grand jury witness. Id. at *4. Among other challenges, the ultimate defendants in the case moved to suppress the results of the wiretap, claiming that the Title III applications had not established “necessity” under the authorizing statute. Id.
   That motion was denied, and defendants entered a conditional plea preserving their Title III challenge for appeal (needless to say, this case did not come out of the N.D. Cal). Id. at *4.

Issue(s): “Defendants argue that Brockus was in a unique position to ‘penetrate and dismantle’ the conspiracy because he was essentially a ringleader, and that his prior cooperation showed that he was willing and able to cooperate with law enforcement.” Id. at *6 (footnote omitted).

Held:We affirm the district court’s order denying Defendants’ motion to suppress.” Id. at *1. “We . . . disagree with Defendants’ argument that the district court abused its discretion in determining that the wiretaps were necessary.” Id. at *5. 
  “Because confidential informants may not be believed by a jury, . . . . the testimony of a confidential informant (without significant corroborating evidence) often will not produce an effective case. The district court did not abuse its discretion in drawing that conclusion based on the specific facts presented in the affidavits.” Id. at *8.

Of Note: Habeas counsel fighting claims under AEDPA have the first claim to complain about their controlling body of law. 
  The stalwart attorneys who challenge Title III taps, however, are a close second. 
  In Estrada, the Feds nailed the gang’s Tony Soprano: the self-admitted “shot-caller.” This boss-snitch flipped early in the case, successfully set up a controlled drug sale with a heavy in another gang, coughed up a name in a homicide, gave information “helpful to the investigation” and testified before the grand jury. Yet the Ninth still upheld the “necessity” of this wiretap. 
  Is a wiretap per se “necessary" under  § 2518(1)(b) and (3)(c), if the case involves a RICO investigation? After Estrada, it is tough to glean what Title III’s statutory “necessity” requirement actually entails.

How to Use: In Estrada, Judge N.R. Smith spills much ink explaining how unreliable snitches are. See id. at *7. And this particular informant, the Court emphasizes, gave the FBI some grief. Brockus allegedly tried to shake surveillance, withheld information from his handlers, and was generally squirrelly, according to the FBI affiant. Id. 
  (Query: Did the AUSA reveal all of this Brady / Giglio information on this snitch to the victims of Brockus’ cooperation, before their pleas? Interesting Cal. R. Prof. Conduct 5-110 question). 
   Future Title III necessity challenges should cabin Estrada's necessity holding to its own “bad snitch” facts. This is particularly true because the Ninth emphasizes that it is merely finding no abuse of discretion in this case. (Significantly, the Court makes a point to express "no opinion on whether the government was conclusively entitled to a wiretap based on the facts in the affidavit.”) Id. at *8 & n.9.  
For Further Reading: In 2017, 37 wiretaps were authorized in the Northern District of California.
  Over 40% were authorized in San Jose, the District’s smallest venue.
  In 2017, over 21% of the entire District’s taps were authorized by a single San Jose judge. 

Uncle Sam is listening, in the Northern’s Southern climes. See 2017 Wiretap report here

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



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Monday, September 17, 2018

1. US v. Lynch, No. 10-50219 (9-13-18)(Rogers w/Bybee; dissent by Watford).

The 9th affirms the conviction for marijuana trafficking via a dispensary. On the gov’t’s cross appeal, the 9th remands for a resentencing to impose a mandatory 5 year minimum sentence. The 9th though instructs the court to determine if the defendant’s acts comply with state law.

The issue that prompted the dissent concerns jury nullification. The majority found it firmly stated that the jury had to follow the law. 

Watford, dissenting, argues that the district court went over the line. It seemed to threaten the jurors by using language of violating oath and implying repercussions. This went beyond the instructions to follow the law and not use personal views to determine the verdict.

The 9th found no wrongful impairment of the defendant’s entrapment by estoppel defense. Evidence was kept out because it was hearsay. 

Hard fought appeal by Alexandra Yates of the FPD Cal Central (Los Angeles).

The decision is here:

2. US v. Franklin, No. 17-30011 (9-13-18)(Berlin w/Thacker & Hirwitz).

The 9th holds that Washington’s broad accomplice liability statute renders its drug trafficking law broader than generic “federal drug trafficking” and hence is not a serious drug offense” under ACCA. The 9th follows the interpretation used in Valdivisa-Flores, 876 F.3d 1201 (9th Cir 2017) for “aggravated felonies.”

Congrats to CJA Davina Chen.

The decision is here:




1. US v. Blackstone, No. 17-55023 (9-12-18)(Clifton w/Schroeder & M. Smith).

This appeal raises whether Johnson recognizes a “new right” under then mandatory guidelines so as to make a petition timely. The 9th concludes that the Supreme Court has not yet held that the sentencing guidelines, mandatory at the time of the offense, are subject to a “new right” retroactive challenge under a Johnson vagueness challenge. “Johnson did not recognize a new right applicable to the mandatory Sentencing Guidelines on collateral review.” The 9th holds similarly for the petitioner’s firearms conviction.

There is now a circuit conflict.  The 9th joins three other circuits in holding no retroactive application for a new right (4th, 6th, and 10th).  The 7th Circuit is contrary. 

Tough fight waged by Alyssa Bell, AFPD Cal Central (Los Angeles).

The decision is here:

2.  Martinez v. Cate, No. 15-16433 (9-11-18)(Tashima w/Thomas & Christen).

A state habeas petition granted and new trial ordered for a Miranda/Edwards violation.  The detective pressured the petitioner and did not honor his request for counsel.

The decision is here:

US v. Garcia-Lopez, No. 15-50366 (9-7-18)(Nelson w/N. Smith; Tallman concurring).

The 9th allows a withdrawal from a guilty plea as the change in law as to California robbery not being a COV establishes a fair and just reason. As the panel concluded: “Dimaya  and related Ninth Circuit cases establish that California robbery—the sole charge underlying Garcia- Lopez’s illegal reentry indictment and his removal order—is not a “crime of violence” pursuant to § 16. This fundamental change in the law operates as a “fair and just reason” to allow Garcia-Lopez to withdraw his guilty plea. With respect to Garcia-Lopez’s Motion to Dismiss, we leave that to the district court to consider in the first instance.”

Tallman concurs, arguing that COV jurisprudence is a mess and that Congress needs to step in to establish a workable standard for violent offenses.

The decision is here:

          1.     US v. Peterson, No. 17-30084 (9-4-18)(Rayes w/Smith & Watford).

The 9th affirms a warrantless search of a backpack, and discovery of a handgun, under the “inevitable discovery” doctrine.  Although the defendant was arrested on misdemeanor warrants, and he could have posted bail, thus avoiding having the inventory search of the backpack, the district court found that the officer was going to book him on felony charges of obstruction or fleeing.  If so, the backpack would have been searched. Thus, concludes the 9th, discovery was inevitable.  The 9th does remand for resentencing.  The 9th holds that Washington’s first degree robbery statute is not a COV because it encompasses threats to property.  Lastly, the 9th holds that it was not error to add an enhancement for reckless endangerment because the defendant was acting out during transport to jail.  He violently kicked at the windows, caused concern they would shatter, and continued even after pepper spraying. The transport had to quickly cross multiple lanes of traffic so the defendant could be restrained.

The decision is here:

     2.      US v. Kechedzian, No. 16-50326 (9-4-18)(Fisher w/Watford & Friedland).

The 9th vacates convictions for unauthorized devices due to a prospective juror failing to state she could be impartial.  The juror had been a victim of social security fraud (her SSN number was stolen). She hemmed and hawed during voir dire, and could not explicitly state she could be fair, impartial, and lay aside her biases.  The district court, after an exchange where she said she would try to put aside her feelings, asked her to tell the court if she couldn’t. The juror subsequently did not affirmatively respond when the court asked the panel if anyone had problems with applying the burden of proof. On appeal, defendant argued implied and actual bias. The 9th discusses both, with implied bias having a higher standard and being more difficult to ascertain. Here, the 9th granted relief for actual bias, as the juror never stated she could put aside her bias and decide impartially.  This case is a good example of a court having to have jurors explicitly state they can be impartial.

          The decision is here:

Sunday, September 16, 2018

Case o' The Week: Blackstone on the Law -- Blackstone and Timeliness of Johnson guideline Section 2255 claims

   Sir William would be disappointed.
United States v. Blackstone, 2018 WL 4344096 (9th Cir. Sept. 12, 2018), decision available here.

Players: Decision by Judge Clifton, joined by Judges Schroeder and M. Smith. Hard-fought appeal by AFPD Alyssa Bell, Central District of California FPD.

Facts: In ’99, Blackstone was convicted of Hobbs Act robbery and a § 924(c), and sentenced under the (then-mandatory) guidelines to 290 months. Id. at *1-*2. Two priors were treated as “crimes of violence” that triggered Career Offender. Id. His appeal and habes were denied.
  Within a year of Johnson, Blackstone obtained permission to file a second-or-successive § 2255. Id. Blackstone filed a § 2255 in the district court, and the motion was denied on the merits. Id.
  Back up in the Ninth, the government then argued that Blackstone’s motion was untimely. Id. at *3. On appeal, the government contended that “the Supreme Court’s decisions in Johnson and Welch have not authorized a motion by Blackstone at this point because those decisions pertained to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), and that neither addressed whether Johnson applies to other clauses providing for enhanced sentences based on convictions for crimes of violence.” Id. at *3.

Issue(s): “[A] right newly recognized by the Supreme Court may open the door to filing a § 2255 motion later in time. The question presented in this case is whether Johnson and Welch have opened that door.” Id. at *3.

Held:We conclude that they have not.” Id.
  “[T]he Supreme Court has not yet recognized the right asserted by Blackstone. The Supreme Court has not held that the mandatory Sentencing Guidelines are subject to this vagueness challenge. As a result, Blackstone’s current motion is not timely under the statute. In reaching that conclusion, we agree with similar rulings by three other circuit courts that have considered this issue. We deny a similar challenge by Blackstone to a conviction and sentence under 18 U.S.C. § 924(c) for use of a firearm during a crime of violence because the Supreme Court has not recognized that right, either. We affirm the denial of Blackstone’s motion.” Id.

Of Note: This is a terrifically disappointing opinion. As the Ninth’s Johnson warriors have quickly pointed out, the decision relied on the Tenth’s opinion in Greer. See id. at *5. Blackstone failed, however, to wrestle with how Dimaya affected Greer – or acknowledge that the Tenth itself has now granted rehearing in Ward based on Dimaya (the Tenth had previously dismissed Ward based on Greer).
  The Ninth is now crossways with Cross, a Seventh Circuit case, may soon be sideways with the Tenth in Ward, and is a step behind the Supremes after Dimaya.
  Blackstone should go en banc.  

How to Use: To add salt to the wound, in our view the Ninth stretches to resuscitate the government’s “timeliness” argument. On appeal, Blackstone argued that the government did not raise this argument in the district court. See id. at *4 & n.2. The Court reassures us that the government had argued that the petition was time barred: this appellate theory was just an “alternative argument to support . . . a consistent claim.” Id.
  Until the Blackstone en banc and certiorari dust settles, read footnote 2 closely and take a hard look at the government’s district court claims in your Johnson cases. If the government failed to raise a statute of limitations defense in the district court, or conceded timeliness, the Blackstone resurrection of a waived government claim may be avoidable in your case.  
For Further Reading: In the recent Newton case, a panel including Judges Berzon and Friedland rejected a Johnson claim based on the controlling Watson decision. See mem. dispo here. Notably, the Newton panel avoided the timeliness issue. See id. at 2 fn. 1.
  Of greatest interest, however, it appeared that during the oral argument Judges Berzon and Friedland may have a different view of the timeliness issue, than the Blackstone panel. See oral argument here, starting at 16:25. 

The Honorable Judges Friedland and Berzon

   Here’s hoping that reasonable minds in the Ninth will differ, on Blackstone’s new barrier to our clients’ day in court.

Image of Sir William Blackstone from

Image of the Honorable Judges Friedland and Berzon from 

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


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Saturday, September 08, 2018

Case o' The Week: Won 2-1-1: plea now undone - Garcia-Lopez and Withdrawal of Guilty Pleas

   Delicious double de novo dish, served up by the Ninth.
United States v. Garcia-Lopez, 2018 WL 4262459 (9th Cir. Sept. 7, 2018), decision available here.

The Hon. Judge Dorothy Nelson
Players: Decision by Judge D.W. Nelson, joined by Judges Tallman and N.R. Smith. Concurrence by Judge Tallman.
  Welcome win for CD Cal R&W Attorney David Menninger, C.D. Cal. FPD.

Facts: Garcia-Lopez, an undocumented alien, plead guilty to robbery under California Penal Code § 211. Id. at *2. He was removed, after the § 211 robbery was treated as a “crime of violence” under 18 USC § 16. Id.
  He reentered and was removed again, pursuant to the original order. Id.
   He entered a third time and was charged with illegal reentry. Id. He plead guilty, but later attempted to withdraw his plea.
  That motion was denied; Garcia-Lopez appealed after sentencing. Id. at *2.

Issue(s): “Garcia-Lopez contends the federal indictment filed against him alleging illegal reentry is fundamentally flawed because the removal order on which it was based is invalid. According to the removal order, Garcia-Lopez’s conviction for California robbery was a ‘crime of violence’ pursuant to 18 U.S.C. § 16, and because Garcia-Lopez served at least a year in jail for the offense, it also constituted an “aggravated felony” under 8 U.S.C. § 1101, rendering him deportable . . . . Garcia-Lopez claims for the first time on appeal that California robbery is no longer a ‘crime of violence’ under Dimaya and related Ninth Circuit case law, and that these cases provide a ‘fair and just reason’ to allow him to withdraw his guilty plea.” Id. at *3.

Held: “[O]ur recent decisions and the Supreme Court’s decision in Dimaya firmly establish that California robbery is not a ‘crime of violence’ under § 16(a) or § 16(b).” Id. at *5. “These cases also provide a “fair and just reason” for Garcia-Lopez to withdraw his guilty plea. Fed. R. Crim. P. 11(d)(2)(B).” Id.

Of Note: Garcia-Lopez raised this specific basis for his withdrawal motion for the first time on appeal. Judge D.W. Nelson does a nice job explaining the standard for that scenario, when it is a pure issue of law and where there’s no prejudice to the opposing party. Id. Finding those requirements met, the Ninth mulls both legal questions – whether § 211 is a “crime of violence,” and whether Garcia-Lopez should be allowed to withdraw his plea – under the less-deferential de novo standard. Id. (And holds that Garcia-Lopez would still win under the plain error standard urged by the government). Id. at *5.
  A handy analysis for appellate counsel, when a legal argument wasn’t quite preserved in the district court.

How to Use: Garcia-Lopez is particularly timely, coming hard on the heels of Lorenzo v. Sessions, 2018 WL 4100360 (9th Cir. 2018). Cal H&S Code § 11378 is no longer a “controlled substance offense” for immigration cases (and probably isn’t for federal guideline and Section 851 priors, either). Use Garcia-Lopez’s generous approach to withdrawing a plea based on shifting categorical analysis law, to bolster corrections on live cases (in district court and on appeal) that have Lorenzo § 11378 issues.  
For Further Reading: In the Lorenzo COTW memo, we argued that § 11378 priors should no longer be considered “controlled substance” offenses under the Guidelines. See Lorenzo blog entry here. 
  A respected jurist (and Sentencing Commissioner) agrees. See United States v. Rose Perez, CR 17-00552-CRB-1 (N.D. Cal. Sept. 6, 2018), Ord., Dkt. #32.

The Hon. Judge Charles R. Breyer
  In Perez, District Judge Charles Breyer carefully explains that Lorenzo controls the question of whether § 11378 is a “controlled substance” offense that triggers Career Offender. 
  As Judge Breyer concludes, “The combination of Lorenzo and Leal-Vega controls this case. As Leal-Vega concluded, categorical approach conclusions in the immigration context provide guideposts in the sentencing context. Id. Thus, Lorenzo’s conclusion that violations of § 11378 are not categorically controlled substances offenses dictates the result here: Perez’s prior § 11378 convictions are not controlled substances offenses for the purposes of determining whether she qualifies as a career offender under the Sentencing Guidelines.Id. at 4:16-21.

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


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Wednesday, September 05, 2018

Lucero v. Holland, No. 15-16111 (8-31-18)(Berzon w/Bea & Berg).

This case considers whether the Sixth Amendment Confrontation Clause rights protected in Bruton extend to statements that are nontestimonial, and the impact of Crawford. The 9th, affirming the denial of the petitioner’s habeas claim as to Bruton, holds that here, the codefendant’s statement was nontestimonial and so not within the confrontation clause’s protection under Crawford, and so the Bruton protections concerning the introduction of statements by nontestifying codefendants do not apply.

The petitioner here was convicted of premeditated attempted murder, possession of a shank in jail, and participation in a street gang. Evidence of a “prison note” found on a codefendant, and entered only against the codefendant, with a limiting instruction, did not violate Bruton because it was not a product of police questioning or testimony. The note was meant to be kept hidden. The protections of Bruton were not violated with nontestimonial evidence as defined by Crawford.

The 9th did reverse the conviction for possession of a shank in jail.  There was insufficient evidence, even in the light most favorable to the prosecution. The record was devoid of petitioner’s possession.

The decision is here:


2. US v. Raygoza-Garcia, No. 16-50490 (8-31-18)(Murgia w/Gould & Zouhary; concurrence by Murgia and Zouhary).

The 9th affirms the denial of a motion to suppress narcotics. The Border Patrol found the drugs in the defendant’s vehicle when the car was stopped, on a roving border patrol, for reasonable suspicion. The 9th found reasonable suspicion, although it was a close call, and the 9th, in its concurrence, expressed concern about some of the factors.

The Border Patrol stopped the defendant’s car 70 miles heading north of the border on I-15. The Border Patrol noted the car had crossed the border several times that month (but was clean), there was a different driver now, the car slowed down in traffic when the patrol car approached, the car had Baja plates, the driver sat rigid, and the car had a single key with no keychain (although later that changed to a key chain). The 9th, following Valdes-Vega, 738 F.3d 1074 (9th Cir. 2013)(en banc) reviewed de novo, but gave “due weight” to the police agents’ and courts inferences drawn from facts.  The 9th found sufficient indicia to support reasonable suspicion.

However, in the concurrence, the 9th expressed concern about innocent conduct that may be used to support reasonable suspicion in and of itself.  This includes ethnicity, driving in traffic, and presence of police patrol vehicles. This concurrence warned that innocuous conduct cannot be used alone or predominately. There must be other factors.

The 9th also affirmed the denial of the defendant’s request to have the court take judicial notice of other evidence of Border Patrol stops.

The decision is here:



Sunday, September 02, 2018

Case o' The Week: Ninth Rejects Gov't's Optical Illusion - Lorenzo v. Sessions, Cal H&S 11378 and Federal "Controlled Substances"

  For Alain Baxter, and for Elisio Atenia Lorenzo, isomers make all the difference.
Lorenzo v. Sessions, 2018 WL 4100360 (9th Cir. Aug. 29, 2018), decision available here.

British alpine skier Alain Baxter, disqualified because of a (legal) isomer of meth

Players: Decision by Judge Fisher, joined by C.J. Thomas and Judge Bea.

Facts: Lorenzo, a citizen of the Philippines, was convicted of possession of meth for sale in violation of Cal. Health and Safety Code § 11378. Id. at *2.
  Homeland Security initiated removal proceedings. Id. The removal relied on the characterization of Lorenzo’s priors as “relating to a controlled substance,” as defined (by cross-references) in the INA. Id. at *2.
   Lorenzo moved to terminate proceedings, arguing that the Cali definition of meth was broader than the Fed definition of “controlled substances,” because the federal Controlled Substance Act (“CSA”) included only optical isomers of methamphetamine. California’s definition included both optical and geometric isomers of methamphetamine. Id. at *3.
  The IJ rejected Lorenzo’s challenge, the BIA affirmed, Lorenzo appealed.

Issue(s): “We recognize that, in applying the first step in the categorical approach in this case, we have had to examine a disjunctive list within another disjunctive list. At the more general level, we must examine the disjunctive list of drug types – e.g., cocaine, heroin, methamphetamine – covered by California law. . . . At the more specific level, however, California law also includes disjunctive lists within a drug type, listing, for example, several types of methamphetamine – methamphetamine, its salts, its optical and geometric isomers, and salts of its isomers.” Id. at *7 (citation omitted).

Held: “Although we may not have expressly addressed this situation before, it is apparent that, when this situation arises, we must conduct a Taylor analysis with respect to both disjunctive lists.” Id.
  We hold Lorenzo’s methamphetamine convictions under §§ 11378 and 11379(a) do not qualify as grounds for removal under 8 U.S.C. § 1227(a)(2)(B)(i).” Id. at *3.
  “In sum, California law demonstrates that optical and geometric isomers of methamphetamine are alternative means of committing a single controlled substance offense under California law. The government does not argue otherwise. The overly broad methamphetamine element, therefore, is not divisible. Because the California statute is overbroad and not divisible with respect to the overbroad element, we do not apply the modified categorical approach to determine whether Lorenzo’s convictions involved a type of methamphetamine covered by the CSA.” Id. at *8.

Of Note: This is a huge win for Benjamin Aiken and his Orrick colleagues, and the immigration bar is excited at prospects for relief. Lorenzo, however, has important ramifications for criminal defense as well. Most obviously, § 1326 clients with H&S § 11378 priors now have a challenge to their prior removals. 
  (And other opportunities beckon . . . .)

How to Use: If H&S § 11378 (meth) doesn’t qualify as a “controlled substance” for the INA, does it qualify as a “controlled substance” for the Guidelines (Career Offender, § 2K2.1, etc.), or for a § 851 federal prior?
    Nope (we think).
  In United States v. Leal-Vega, 680 F.3d1160, 1167 (9th Cir. 2012), Judge M. Smith explained that “controlled substances” in the Guidelines refer to the federal drug schedules (the Controlled Substance Act, or “CSA.”). That’s the very same CSA analyzed by Judge Fisher in Lorenzo
  Big red flag for clients with H&S § 11378 priors: they may not be Career Offenders, may have substantially lower felon-in-possession guidelines, and may not be “prior-able” under 21 USC § 851.   
For Further Reading: As Lorenzo illustrates, “categorical analysis” – huzzah!
  In a worrisome development, however, the Sentencing Commission is mulling whether to instead look at “actual conduct” for priors. See final notice here, Priority Three.
  Although Commissioners Barkow and Breyer both have reservations, see hearing video here, at 7:00 – 13:55, a Commission “examination” of the categorical analysis is nonetheless underway.

 Imagine the mischief we’ll make with mini-sentencing trials in federal court, bickering over decades-old evidence from dusty old state proceedings!  

Image of "old evidence" from 

Image of Alain Baxter from

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


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