Sunday, December 30, 2018

Case o' The Week: Ninth Buys Forfeiture Overture - Valdez and Forfeiture of Substitute Property in Criminal Forfeiture Cases

 Federal funds are currently unavailable, from the President and from Congress.

The Feds can get money, however, from our indigent clients. United States v. Valdez, 2018 WL 6712061 (9th Cir. Dec. 21, 2018), decision available here.

Players: Decision by Judge Graber, joined by Judge Bennett and DJ Kobayashi. 
  Hard-fought appeal by D. Az. AFPD Eddie Cunningham.  

Facts: Valdez pleaded guilty to the attempted smuggling of 10,000 rounds of ammo to Mexico. Id. at *1. That ammo was subject to forfeiture, but wasn’t seized by the Feds. Id. The government therefore sought “forfeiture of substitute property” under 21 USC § 853(p) and 28 USC § 2461(c). Id. 
  Over defense objection, the district court agreed and ordered Valdez and her co-D to pay a personal money judgment for the value of the ammo. Id.

Issue(s): “Defendant complains that, had she been arrested before she caused the ammunition to be transferred, the government would have recovered the ammunition and would have had no ability to seek forfeiture of substitute property. She contends that Congress could not have intended this unfair result, which treats intermediary smugglers differently depending on when they are arrested.” Id. at *5.

Held:We see no inequity in treating persons differently depending on whether they cause contraband to remain in the hands of criminals. For those who cause that additional harm, Congress permissibly has concluded that they must forfeit substitute property.” Id. at *5. “Reviewing de novo the interpretation of the federal forfeiture statutes . . . we conclude that the district court properly ordered forfeiture of substitute property. Accordingly, we affirm.” Id. at *1.
  “[W]e conclude that (A) the government properly sought criminal forfeiture; (B) 28 U.S.C. § 2461(c) authorizes the forfeiture of substitute property; and (C) the district court properly ordered forfeiture of substitute property.” Id. at *2.

Of Note: The origin of the dispute in Valdez was the government’s decision to seek criminal forfeiture of the ammo (or of “substitute property”), instead of civil forfeiture. Id. at *2. That raised the question of whether the criminal forfeiture statute, 28 USC § 2461(c), permitted the court to order payment of substitute property (here, money) when the ammo was not intercepted. Judge Graber recounts the procedures of 21 USC § 853, that apply to criminal forfeiture. She concludes that Congress meant for Section 853 to permit the forfeiture of substitute property (here, money) in criminal forfeiture cases. Id. at *4. 
  Notably, the DOJ – and US Attorney Offices – are increasingly obsessed with touting their forfeiture figures. See e.g, ND Cal USAO press release hereThese billions of dollars in forfeited funds are used “for a variety of law enforcement purposes.” Id. Valdez is a worrisome development, with federal law enforcement agencies hungry for ways to make budgetary ends meet. 

How to Use: No question that in this case, Valdez was directly involved in buying the ammo to be smuggled. That close nexus isn’t always there, however. When wrestling with forfeiture, remember that your client is only on the hook for property that he or she “actually acquired as the result of the crime.” Honeycutt v. United States, 137 S.Ct 1626, 1635 (2017). Justice Sotomayor’s welcome Honeycutt decision is a rare limitation on the Feds’ ever-expanding forfeiture authority: worth a close read, if wrestling with forfeiture issues.
For Further Reading: Among the many innocent folks bearing the brunt of the latest government shutdown are the heroic attorneys who shoulder CJA appointments for our indigent clients. Last week, the Judiciary’s Administrative Office retroactively froze panel payments, beginning December 24, 2018. See generally article here  
  (Criminal AUSAs? Not affected by the shutdown. See DOJ contingency plan here.)  

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


Labels: ,

Sunday, December 23, 2018

Case o' The Week: Merry Christmas, from St. Nintholas - Sanchez and Rule 29 Win (After Stip Facts Bench Trial!)

Charged with "felon in possession."
Stip'ed to all elements.
Bench trial.
Found guilty by the district court.

 And . . . home for the holidays!
United States v. Sanchez, 2018 WL 6720559 (9th Cir. Dec. 20, 2018) (mem.), decision available here.

Players: Mem. dispo by Judges D.W. Nelson, Wardlaw, and visiting DJ Pratt. Admirable reversal for insufficient evidence on a stip facts bench trial for CD Cal AFPD Jonathan Schneller.

Facts: After plea negotiations broke down, Sanchez had a stip facts bench trial on a § 922(g) (felon in possession) charge. Id. He stipulated to an essential element of this crime: that he had suffered a prior felony conviction. Id. This stip was discussed at the pretrial conference, mentioned by the government in opening and closing arguments during the stip facts bench trial, and was filed on the docket after the close of evidence. Id. The AUSA, however, forgot to move the stip into evidence or read it into the record. Id. 
  The defense did not identify this oversight in a Rule 29 motion during trial. Id. Instead, after the district court found Sanchez guilty, the defense moved for a judgment of acquittal arguing that the government had not introduced evidence of all elements. Id. (citing United States v. James, 987 F.2d 648 (9th Cir. 1993)). 
  The district court denied the motion. Id.

Issue(s): “John Alexander Sanchez appeals his conviction, by bench trial, of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). . . . Sanchez contends his conviction was not supported by sufficient evidence, because the stipulation to his prior felony was not properly entered in the evidentiary record.” Id. at *1.

Held:We agree, and reverse his conviction.” Id. “In James, we held that a stipulation that had not been read to the jury or received into evidence” could not sustain a conviction, because there was no fact in evidence that the jury could take as proved. We noted that even a correct and signed stipulation not so presented would not be enough, and expressly rejected the argument that a defendant’s stipulation outside the trial record removed that issue from consideration such that no further evidence on the issue was required because a stipulation is conclusive proof of the fact agreed to. . . . .  
  “In the absence of the stipulation here, insufficient evidence exists that would convince any rational trier of fact beyond a reasonable doubt that Sanchez had been convicted of a crime punishable by over a year of imprisonment.” Id. (internal quotations and citation omitted).
Of Note: Had the government simply agreed to a conditional plea, and allowed Sanchez to appeal the denial of a pretrial ruling, this remarkable reversal of a conviction after a stipulated facts bench trial would have never happened. See Fed. R. Crim. Proc. 11(a)(2).
  We’re told the USAO’s refusal to offer conditional pleas saves government resources. The Feds are right: here, it saved the government the considerable cost of incarcerating Mr. Sanchez after a Section 922(g) conviction.

How to Use: Like a Christmas fruit cake, this brief mem dispo is dense with little nuggets (but is far tastier). The Ninth rebuffs the government’s attempt to limit the legendary James decision to jury trials. The distinction between jury and bench trials is “of no constitutional significance.” Id
  The government’s briefing apparently complained that the defense didn’t identify the government’s failure of proof during trial. See Appellant’s Reply Brief at 2018 WL 4740139. That curious complaint doesn’t even merit discussion in this mem. disp. 
  And the Ninth rejects a “judicial admission” pitch that the government threw into a footnote. “Consigning [the argument to] a single sentence in a single footnote” meant that the government had abandoned the argument. Id. at 1 & n.2.

  Good things come in small packages.  
For Further Reading: Last August, former CJA Panel Attorney David Anderson was nominated by President Trump to serve as the United States Attorney for the Northern District of California. 
  There had been some talk of a confirmation by the Senate last week. Other events – like the unfortunate shut down of the federal government of the United States of America – appear to have intervened. 
  For an update on Mr. Anderson’s confirmation odyssey, see Congressional website here. 

Image of Christmas package from 

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


Labels: , , , , , , ,

Sunday, December 16, 2018

Case o' The Week: Convictions resist a battery of challenges - Kirkland and "Explosive Devices"

  “Batteries not included."
   Ruins Christmas mornings.
  (Convictions? Not so much).

United States v. Kirkland, 2018 WL 6186513 (9th Cir. Nov. 28, 2018), decision available here.

Players: Decision by Judge Watford, joined by Judges Fisher and Friedland. Hard-fought appeal by former CD Cal AFPD Carl Gunn.

Facts: Cops found a box when they searched Kirkland’s home. It contained a radio frequency receiver that could be used to detonate a device, a detonator, and shotgun shells that could provide an explosive charge. Id. at *1. Missing were eight batteries needed to make a functional bomb. Id. At trial, a government expert testified that the box could be made a bomb in minutes, by inserting batteries and by connecting the detonator. Id. Kirkland was convicted of being a felon in possession of a destructive device, and of possessing an unregistered destructive device. Id.

Issue(s): “On appeal, Kirkland challenges the sufficiency of the evidence to support his convictions, on the ground that the device he possessed does not qualify as a ‘destructive device.’ He also argues that his sentence should not have been enhanced under the ‘destructive device’ provision of the Sentencing Guidelines, U.S.S.G. § 2K2.1(b)(3)(B), as that enhancement turns on the same definition of ‘destructive device.’” Id. “He challenges only the sufficiency of the evidence to support the jury’s finding that he possessed a combination of parts ‘from which’ an explosive bomb could be ‘readily assembled.’ In his view, a conviction under subsection (C) requires proof that the defendant possessed every component necessary to construct a functional weapon. Under Kirkland’s reading of the statute, he would be entitled to a judgment of acquittal because the device in question needed eight C-cell batteries to operate, and the government did not introduce any evidence establishing that he possessed such batteries.” Id. at *2.

Held: “We do not think the statute can be read in the manner urged by Kirkland. Nothing in the text of § 921(a)(4)(C) states that a defendant must possess every component necessary to render a partially constructed device capable of detonating. The statute requires only that the defendant possess a combination of parts from which a functional device ‘may be readily assembled.’ As used in this provision, the term “readily” means quickly and easily: The combination of parts possessed by the defendant must be capable of being assembled into a functional device within a short period of time and with little difficulty—measures that may depend on the expertise of the defendant constructing the device. That requirement does not categorically exclude situations in which the assembly process entails the acquisition and addition of a new part.” Id.
  “At the end of the day, regardless of which components are missing from the device, the ultimate question will be the same: Can the missing parts be obtained quickly and easily, and if so, can they quickly and easily be incorporated to render the device functional?” Id. at *3.

Of Note: Gunn’s at war. More specifically, the Ninth contends that Carl Gunn’s urged interpretation was “at war with Congress’s purpose” in enacting the “combo of parts” provision of this statute. Id. at *3.
  Maybe so, maybe not, but – as the defense warned -- this decision leaves “intractable line-drawing” problems for future cases. If this box had batteries, but no detonator, would that be a bomb that is “readily assembled?” What if it was missing the radio frequency receiver? What if the parts were, but it had not been wired?
  All of these scenarios are now “inherently factbound issues that juries will have to resolve on a case-by-case basis.” Id. at *3.

How to Use: Judge Watford flags an important exception to the Kirkland holding: a destructive device needs explosive material. Id. at *3. That wasn’t at issue here, because the shotgun shells were the explosive component of this device. Id.  
  Note this important Kirkland exception to the bits and bobs theory of conviction: a bomb needs something that goes boom.
For Further Reading: Will President Trump’s appointments remake the Ninth? Perhaps less than is assumed. 
  For an interesting article on the actual numbers, see a Brookings report here

Image of “batteries not included” from

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



Labels: , ,

Sunday, December 09, 2018

Case o' The Week: First on the First in the Ninth - Sineneng-Smith and First Amendment Overbreadth

“Anyone not paranoid in this world must be crazy. . . . 
  Speaking of paranoia, it's true that I do not know exactly who my enemies are. But that of course is exactly why I'm paranoid.” 
  ― Edward Abbey, Postcards from Ed: Dispatches and Salvos from an American Iconoclast
The Honorable Judge Wallace Tashima
“[W]e cannot take the government’s word for how it will enforce a broadly written statute . . . any would-be speaker who has thought twice about expressing her views on immigration was not being paranoid.” 
  United States v. Sineneng-Smith, 2018 WL 6314287, at *11 (9th Cir. Dec. 4, 2018), decision available here

Players: Important First Amendment decision by Judge Tashima, joined by Judges Berzon and Hurwitz.
  Huge win for, among many others, Chief Deputy FPD Stephen Sady and R&W Attorney Lisa Ma, D. Oregon FPD, and Carmen Smarandoiu, Appellate Chief, N.D. Cal FPD, for Amicus Curiae Federal Defender Organizations of the Ninth Circuit.  

Facts: Sineneng-Smith ran an immigration firm that assisted clients applying for “Labor Certifications” and green cards. Id. at *2. Retention agreements explained that the goal was to assist clients to “obtain permanent residence through Labor Certification.” Id. Unfortunately, that path to permanent residence ended, yet the retention agreements for these aliens continued for seven years. Id.
  Sineneng-Smith was charged with, among other things, 8 USC § 1324(a)(1)(A)(iv) and § 1324(a)(1)(B)(i): “encouraging or inducing an alien to reside in the country, knowing and in reckless disregard of the fact that such residence is in violation of the law.” Id.
  Her pretrial First Amendment motion to dismiss was denied, and she was convicted after trial. Id. After the case was first argued on appeal, the panel invited amici briefing. Id.

Issue(s): “Section 1324(a)(1)(A)(iv) (‘Subsection (iv)’) permits a felony prosecution of any person who ‘encourages or induces an alien to come to, enter, or reside in the United States’ if the encourager knew, or recklessly disregarded ‘the fact that such coming to, entry, or residence is or will be in violation of law.’ We must decide whether Subsection (iv) abridges constitutionally-protected speech. To answer this question, we must decide what ‘encourages or induces’ means.’” Id. at *1.

Held:We do not think that any reasonable reading of the statute can exclude speech. To conclude otherwise, we would have to say that ‘encourage’ does not mean encourage, and that a person cannot ‘induce’ another with words. At the very least, it is clear that the statute potentially criminalizes the simple words – spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client – ‘I encourage you to stay here.’ The statute thus criminalizes a substantial amount of constitutionally-protected expression. The burden on First Amendment rights is intolerable when compared to the statute’s legitimate sweep. Therefore, we hold that Subsection (iv) is unconstitutionally overbroad in violation of the First Amendment.” Id. at *1.

Of Note: The government urged a “strained” interpretation of “encourages or induce” in a bid to save the statute. Id. at *8. Channeling Justice Scalia, Judge Tashima rejects the effort, and adopts a natural reading that would criminalize “encouraging statements” protected by the First Amendment. Id.
  Along the way, Judge Tashima relies on the great Stevens quote: ““[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” Id. at *11. 
  A terrific opinion (and an important moment of legal history), Sineneng-Smith merits a close read.   

How to Use: On appeal Sineneng-Smith raised a First Amendment challenge: the panel asked for amicus briefing on an overbreadth claim. The government pleaded for “plain error” review, arguing that the overbreadth claim was waived because it was not raised in the initial appeal. Id. at *3. Judge Tashima rejects the government’s scramble: “Because Sineneng-Smith has asserted a First Amendment claim throughout the litigation, her overbreadth challenge ‘is – at most – a new argument to support what has been a consistent claim.’” Id. at *3. 
  Use Sineneng-Smith to brush back on the government’s pervasive “plain error” pitches.
For Further Reading: As reported earlier, President Trump jumped the gun and erroneously lambasted the Ninth Circuit for an admirable asylum decision by NorCal District Judge Jon S. Tigar (prompting an unprecedented defense by Chief Justice Roberts). See “For Further Reading” available here. 
  The Ninth has now caught up with the tweets. A three judge panel (two Republican-appointed judges, and one Democrat-appointed judge) has unanimously denied the government’s motion for a stay of Judge Tigar’s decision. See article here. 
 (Although, as Chief Justice Roberts has explained, the party affiliation of a federal judge doesn't matter). 

Image of the Honorable Judge Wallace Tashima from

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


Labels: , , , , ,

Thursday, December 06, 2018

US v. Sineneng-Smith, No. 15-10614 (12-4-18)(Tashima w/Berzon & Hurwitz). 

The 9th holds that the offense of encouraging and inducing an alien to remain in the US is unconstitutionally overbroad as it violates the First Amendment. The two counts under 8 U.S.C. §§ 1324(a)(1)(A)(iv) and 1324(a)(1)(B)(i) cover a substantial amount of protected of First Amendment speech and activity.  The opinion’s introduction states it well:

We must decide whether Subsection (iv) abridges constitutionally-protected speech.  To answer this question, we must decide what “encourages or induces” means. 

The parties have widely divergent views about how to interpret the statute. Sineneng-Smith and several amici contend that encourage and induce carry their plain meaning and, therefore, restrict vast swaths of protected expression in violation of the First Amendment. The government counters that the statute, in context, only prohibits conduct and a narrow band of unprotected speech.

We do not think that any reasonable reading of the statute can exclude speech. To conclude otherwise, we would have to say that “encourage” does not mean encourage, and that a person cannot “induce” another with words. At the very least, it is clear that the statute potentially criminalizes the simple words – spoken to a son, a wife, a parent, a friend, a neighbor, a coworker, a student, a client – “I encourage you to stay here.”

The statute thus criminalizes a substantial amount of constitutionally- protected expression. The burden on First Amendment rights is intolerable when compared to the statute’s legitimate sweep. Therefore, we hold that Subsection (iv) is unconstitutionally overbroad in violation of the First Amendment.

Congrats to Steve Sady and Lisa Ma of the FPD Oregon (Portland) and Carmen Smarandoiu of the FPD Cal N FPD (SF) for their amicus work on behalf of the FPD of the 9th Circuit. Kudos to defense counsel Dan Cook and the many other amici who weighed in.

The decision is here:

Sunday, December 02, 2018

Case o' The Week: Seeing Double? Indictment Trouble - Chilaca and Multiplicity in Child Porn Cases

 Four bites at the apple are three too many.

United States v. Chilaca, 2018 WL 6165235 (9th Cir. Nov. 26, 2018), decision available here.

Players: Great decision of first impression by visiting SD Texas Chief DJ Rosenthal, joined by Judges Judges Hurwitz and Hawkins.

Facts: Chilaca was charged with four counts of possessing child porn. Id. at *1. A search warrant at Chilaca’s home had revealed a PC (that had an internal hard drive) and two separate hard drives – all linked to a Dropbox account that had child porn. Id. 
  He was charged in four counts, that alleged possession of images in the three hard drives and Dropbox. Id. Chilaca’s motion to dismiss multiplicitous counts was denied, he was convicted after a jury trial of all four counts, and received four 66 month (concurrent) prison terms. Id.

Issue(s): “In this appeal, Chilaca contends that his four counts of conviction were multiplicitous and constituted double jeopardy.” Id. 
  “Section 2252(a)(4)(B) makes it a crime for ‘[a]ny person who either knowingly possesses, or knowingly accesses with intent to view, or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction’ of child pornography. 18 U.S.C. § 2252(a)(4)(B). The indictment charged four § 2252(a)(4)(B) violations. The question is whether, under this statute, simultaneous possession of child-pornography images, stored in different media and found in the same location, creates separate ‘allowable units of prosecution.’ Id. at *2 (footnote omitted).

Held:We, like all other circuits that have considered the issue, interpret § 2252(a)(4)(B)’s use of the phrase '1 or more' to mean that the simultaneous possession of different matters containing offending images at a single time and place constitutes a single violation of the statute. This interpretation is consistent with the provision’s plain language and the structure of the statute as a whole.” Id. at *5. 
  “The government does not dispute that Chilaca’s possession of child-pornography images on the separate media was simultaneous and in the same location . . . . The four counts under § 2252(a)(4)(B) charged in the indictment against Chilaca are therefore multiplicitous.” Id. at *5-*6 (citation omitted).

Of Note: Chilaca’s holding of first impression in the Ninth is a great outcome, and one that follows the outcomes of the four circuits that have tackled this question. 
  Of additional interest, however, is Chief District Judge Rosenthal’s harmless error analysis. In retreat, the government threw a “harmless error” Hail Mary. More specifically, the government argued that the multiplicitous convictions should not be touched because Chilaca had received concurrent sentences. Id. at *6. 
  In a thoughtful analysis the Ninth rejects that harmless error argument, distinguishing its ‘06 Kuchinski decision and focusing on Chilaca’s challenge to the convictions. Id. The defense doesn’t get its hoped-for retrial, id. at *7, but the case is remanded for the district court to knock three of the multiplicitious counts and resentence. Id. Chilaca is a valuable “harmless error” decision, with impact outside of this narrow multiplicity context.

How to Use: Can child porn stored on Dropbox be a “unit of prosecution” under Section 2252(a)(4)(B)? The Court in Chilaca carefully notes that neither party contested whether a Dropbox account qualifies as an “allowable unit of prosecution” under this statute. Id. at *2 & n.2. 
  An interesting footnote to mull.
For Further Reading: President Trump and Senator Ben Sasse (Republican, Nebraska) have opined much of late on the Ninth’s reversal rate at SCOTUS. The Ninth, we are told, is “overturned more than any Circuit in the Country, 79%.”

Hon. Sen. Ben Sasse and President Trump

  Meh – as Mark Twain (and others) have observed, there are “lies, damn lies, and statistics.” 
   For a thoughtful discussion of the real figures behind the Ninth's record at the Supremes, see Does the Ninth Circuit Have the Highest Reversal Rate in the Country? available here.

Image of movie poster, “Multiplicity” from

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


Labels: , , ,