Monday, April 29, 2019

US v. Wijegoonaratna, No. 17-50255 (4-26-19)(Gould w/Nguyen & Owens).  The 9th affirms convictions on health care fraud.  The defendant—a doctor—referred patients to hospice when they were not terminal.**  The defense was that the doctor was lazy in negligently relying on nurse assessments but did not intentionally defraud Medicare.  The jury convicted on seven separate counts (significance will be discussed below).

On appeal, the 9th found no error in the prosecutor’s closing.  The prosecutor argued that the defendant’s history and notes were copied by the intake staff.  This was a reasonable inference.
In sentencing, the 9th found no merit in procedural and loss objections.  However, the 9th vacated the sentence in part because of an ex post facto error.  The prosecutor charged seven separate counts of healthcare fraud.  Each count is treated separately.  The prosecutor could have charged it as a continuing offense; they did not.  As such, most counts were under the 2010 guidelines and one count under the 2016.  The court used the 2016 guidelines for all the counts, which was an ex post facto violation, even under plain error review. As the 9th observed, there are consequences for separately charging counts.

Cf. Monty Python and the Holy Grail (1975)(Bring Out Your Dead):

Dead Collector: Bring out yer dead!
[A large man appears with a (seemingly) dead man over his shoulder]

Large Man: Here's one.
Dead Collector: Nine pence.

"Dead" Man: I'm not dead.

Dead Collector: What?

Large Man: Nothing. [hands the collector his money] Here's your nine pence.

"Dead" Man: I'm not dead!

Dead Collector: 'Ere, he says he's not dead.

Large Man: Yes he is.

"Dead" Man: I'm not.

Dead Collector: He isn't.

Large Man: Well, he will be soon, he's very ill.

"Dead" Man: I'm getting better.

Large Man: No you're not, you'll be stone dead in a moment.

Dead Collector: Well, I can't take him like that. It's against regulations.

"Dead" Man: I don't want to go on the cart.

Large Man:' Oh, don't be such a baby.

Dead Collector: I can't take him.

"Dead" Man: I feel fine.

Large Man: Oh, do me a favor.

Dead Collector: I can't.

Large Man: Well, can you hang around for a couple of minutes? He won't be long.

Dead Collector: I promised I'd be at the Robinsons'. They've lost nine today.

Large Man: Well, when's your next round?

Dead Collector: Thursday.

"Dead" Man: I think I'll go for a walk.

Large Man: You're not fooling anyone, you know. Isn't there anything you could do?

"Dead" Man: I feel happy. I feel happy.

[The collector paces for an idea, then whacks the body with his club, solving the problem]

Large Man: Ah, thank you very much.

Dead Collector: Not at all. See you on Thursday.

Large Man: Right

The decision is here:




Sunday, April 28, 2019

Case o' The Week: Doc Convicted When Patients Didn't Die - Wijegoonaratna and Ex Post Facto Issues at Sentencing

  Reports of impending deaths (unfortunately) exaggerated.

United States v. Wijegoonaratna, 2019 WL 1870688 (9th Cir. Apr. 26, 2019), decision available here.

Players: Decision by Judge Gould, joined by Judges Nguyen and Owens.
  Nice sentencing win in a tough case, by former CD Cal AFPD, current CD Cal CJA member Alyssa Bell.  

Facts: Dr. Wijegoonaratna certified patients as “terminal,” and eligible for Medicare-funded hospice care. Id. at *2. In reality, however, the majority of these patients did not die within six months (85% of hospice patients die in hospice). Id. at *1-*2. 
  Wijegoonaratna was convicted after trial of seven counts of healthcare fraud. Id. at *2. The district court sentenced Wijegoonaratna for six of the counts using revised guidelines that post-dated the conduct. Id. at *7. The defense did not object.

Issue(s): “Wijegoonaratna contends that the district court violated the ex post facto clause . . . by sentencing him under the revised Guidelines Manual on the six counts . . . arising from conduct that occurred before the revision.” Id. at *7. “The crux of the issue . . . is whether Wijegoonaratna was charged with a continuing offense. If so, application of the 2016 Guidelines . . . to all counts would not violate the ex post facto clause.” Id. at *8.

Held: “[T]he government’s decision to charge Wijegoonaratna with multiple counts has consequences. The government could have charged Wijegoonaratna’s offense as a continuing offense, but it chose not to do so. For that reason, the ex post facto rule that applies to continuing offenses—just like the statute of limitations rule for continuing offenses—does not apply here, where the health care fraud was charged as multiple counts. Instead, the district court was required to calculate and apply the guideline ranges from the Guidelines Manual in effect at the time of each count. It did not. We vacate Wijegoonaratna’s sentence and remand for further proceedings consistent with our decision.” Id. at *8.

Of Note: Wijegoonaratna didn’t object to the use of the revised guideline at sentencing, so what is the standard of review? In an interesting discussion, Judge Gould notes that this would typically be “plain error” review. Id. at *7. Because this ex post facto issue is a “purely legal” question, however, the panel reviewed this sentencing issue de novo. Id. 
  This approach isn’t without controversy –Judge Graber has sought to take this “purely legal” carve-out en banc. Id. (citing Yijun Zhou, 838 F.3d at 1015-17 (Graber, J., concurring)).
  Hopefully the en banc review suggested by Judge Graber never happens –until it does, this “purely legal” hook can help us avoid the pit of plain error.

How to Use: Wijegoonaratna was sentenced to 108 months – a term that was lower than both the old guideline, or the new revised guideline, ranges. Id. at *7 & n.3. Although the actual sentence imposed was below these guideline ranges, Wijegoonaratna still earned a remand for the ex post facto error. Id. Why? Because “regardless of whether the sentence imposed is inside or outside the Guidelines range,” the appellate court’s job is to “ensure that the district court committed no significant procedural error, such as . . . improperly calculating the Guidelines range.” Id.
  Twelve years after SCOTUS made this principle crystal clear in Gall, the government still argues on appeal that guideline error is harmless (or, in an odd recent government brief, that such guideline error is “moot.”) Use Wijegoonaratna footnote 3 to fend off this tiresome attack.      
For Further Reading: Does a DJ worry about the appellate standard of review, when contemplating a below-guideline sentence? An interesting piece tackles that question (and concludes, “it depends.”) See “Do Standards of Review Matter? The Case of Federal Criminal Sentencing, available here
  For a very helpful outline untangling the extraordinarily confusing standards of review, see the Ninth’s “S.O.R.” webpage, available here

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


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Friday, April 26, 2019

US v. Rodriguez, No. 17-10233 (4-24-19)(Berzon w/Friedland; dissent by Cardone). The 9th addresses “whether uncontested drug quantities in a court-adopted [PSR] constitutes specific drug quantity findings that bind district courts in subsequent … sentence reduction proceedings.” (4). The 9th holds that, “without an explicit and specific drug quantity finding by the original sentencing judge, drug quantities in an adopted PSR are not binding in 3582(c)(2) proceedings.” (4).

Dissenting, Cardone argues that the district court had made a sufficiently specific finding as to drug quantity.  As such, the defendant would be ineligible for a sentencing reduction.
The decision is here:
US v. Guerrero, No. 17-50384 (4-22-19)(Per curiam w/Wallace, Tashima, & Robreno).  This is a chilling per curiam.  In it, the panel forecloses raises supposedly a new theory on appeal on a bad stop suppression issue.  There is also a circuit split on the standard of review.

The defendant was convicted of being a prohibited possessor.  The police stopped the car in which the defendant was a passenger.  He had a gun and ammunition.  He challenged the stop – supposedly for failure to signal a turn – by arguing that the driver had in fact signaled.  The court credited the officer. 
On appeal, defendant argued that California state law only requires a signal if it affected movement of another vehicle.  No affect, no violation.  The 9th deemed this a new argument, and a new ground for suppression.

In such a case, what should be the standard for review? “Good cause,” holds the 9th . The 9th looks at the 2014 amendments to Fed R Crim P 12 which states that an untimely motion requires “good cause.” See US v. Keesee, 358 F.3d 1217, 1220 (9th Cir 2004). This displaces the “plain error” standard. And yet, sister circuits disagree.  Three circuits – 5th, 6th, and 11th – review for plain error under Rule 52(b). The 9th is sympathetic to the “plain error,” musing that if they were writing on a “blank slate,” they “might be inclined to follow” plain error.  Alas, though, this is a three judge panel and “may not forge our own path” in this instance. 
Here, no “good cause” was shown and the defendant did not challenge the ruling on the ground raised.  Thus, the denial of the motion is affirmed.

Kudos to Gia Kim of the FPD Cal Central (Los Angeles) for arguing this issue.
The decision is here:

Sunday, April 21, 2019

Case o' The Week: It Isn't What You Know . . . - Price and Mens Rea Requirements for Int'l Flight Sex Offense Statute

 No “know?”

 No problem.  
United States v. Price, 2019 WL 1575875 (9th Cir. Apr. 12, 2019), decision available here.

Players: Decision by Judge Wardlaw, joined by Judge Nguyen. 
  Concurrence by visiting Sixth Circuit judge Ronald Lee Gilman, “unabashedly” adopting draft opinion written by Judge Stephen Reinhardt, before his untimely passing. 
  Hard-fought appeal by CD Cal AFPD Jonathan Libby.  

Facts: Price, a 46-year old man, moved from his assigned seat to sit next to a young woman on a flight from Tokyo to L.A.. Id. at *1. He fondled the breast of the sleeping 21-year old Japanese student, slipped his hand in her underwear, and touched her vagina. Id. 
  Price was charged with a violation of 18 USC § 2244(b), which prohibits knowingly engaging in sexual contact with another person, without their permission, on an international flight. Id.
  At trial, Price disputed the § 2244(b) jury instruction. Id. at *3. Price asked for an instruction that required proof that he knew the sexual contact was without the woman’s permission. Id.
  The district court denied that instruction, Price was convicted, and appealed.

Issue(s): “Price appeals his conviction, contending that the government was also required to prove beyond a reasonable doubt that he subjectively knew that his victim did not consent.” Id. at *1.

Held: “To read ‘knowingly’ to apply to the second element in § 2244(a) [prohibiting sex acts criminalized in other statutes] would both be grammatically unnatural and produce absurd results. Because a conviction under § 2244(a) does not require that the government prove the defendant’s knowledge of the additional element, we should read § 2244(b) in the same manner.” Id. at *6.
  “In enacting the Sexual Abuse Act of 1986, of which 18 U.S.C. § 2244(b) is a part, Congress sought to expand criminal culpability for sexual acts and contacts and facilitate prosecution of those crimes. Thus it placed the burden on the actor who knowingly engages in sexual contact with another person to first obtain that person’s consent, objectively given. The government need not prove that the defendant subjectively knew he lacked consent, as Price asserted here. It need only prove that the victim did not consent as an objective matter.” Id. at *11.

Of Note: The Ninth’s April 2018 decision in Yovino v. Rizo made recent news. In Yovino, the Supreme Court rejected an en banc vote by Judge Reinhardt that was cast before he passed away, and before the opinion was issued. See Washington Post article here. “Federal judges are appointed for life, not for eternity,” the high Court clucked disapprovingly. Id.
The Hon. Judge Stephen Reinhardt
  It is interesting to remember this SCOTUS’ scolding, when reading the compelling concurrence in Price. See id. at *11 (Gilman, J., concurring). Visiting Judge Gilman persuasively explains why this statute should be read to include a knowing mens rea as to whether the defendant was acting with permission. Id. Judge Gilman explains that before his death, Judge Reinhardt was a member of the Price panel and wrote a draft opinion. Judge Gilman reveals, “Unabashedly, much of this concurrence can be attributed to the portions of Judge Reinhardt’s draft opinion with which I fully agree.” Id.
  “Eternity” might be a stretch, but it is fair to say that Judge Reinhardt’s remarkable legacy continues well beyond his death.

How to Use: Sex offenses on international flights? Rare. 
  Disputes over mens rea requirements? Common. 
   The bulk of Price is statutory analysis of this infrequently-charged crime, inferred from adjacent statutes and assumed from the (low) custodial term at stake for this offense. Id. at *7-*8. For better or worse, turn to Price when mens rea and statutory interpretation battles arise – the decision has some helpful inverse propositions (for example, high-exposure statutes support the need for higher mens rea requirements. Id. at *7.
For Further Reading: Ninth - 4:3:2. Four vacancies, three nominees, hearings held on two. 
   For a quick tabular recap of the current nomination status of the Ninth Circuit in the 116th Congress, see “Judicial Vacancies and Nominations,” available here 

Image of “The Price Isn’t Right” from

Image of the Honorable Judge Stephen Reinhardt from

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


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Thursday, April 18, 2019

Washington v. Ryan, No. 05-99009 (4-17-19)(Gould w/N. Smith; Callahan dissenting). The 9th grants sentencing relief in this pre-AEDPA capital habeas. The majority holds that counsel was ineffective in its investigation of mitigation and representation. In a pre-AEDPA review, evidence existed for childhood abuse, diffuse brain damage, and substance abuse.

Callahan, dissenting, argues that the majority does not follow the Strickland deferential standard, but engages in second-guessing and in cherry picking facts.

The decision is here:

Monday, April 15, 2019

US v. Price, No. 15-50556 (4-12-19)(Wardlaw w/Nyguyen; concurrence by Gilman). This has been the week for “flight” (as in airplane) opinions (see yesterday’s venue entry).

This opinion deals with the “knowingly” engaging in sexual contact under 18 U.S.C. § 2244(b). The act occurred on an international flight from Tokyo to Los Angeles.  The contact occurred when the victim was asleep at the time.  On appeal, the defendant argues that in addition to the  gov’t proving beyond a reasonable doubt  that he knowingly had sexual contact with the victim, the government also must prove that he subjectively knew the defendant did not consent. The defendant argues that “knowingly” in the statute refers to both engaging in conduct, and knowing that he was acting without consent.

In affirming the conviction, the majority rejected this reading of requiring a subjective “knowing” that the conduct was without permission.  It stated that such a requirement was contrary to the text, the structure of the statutory scheme, and its purpose.  The intent of the legislation in criminalizing sexual conduct within this federal jurisdiction was a focus on the defendant’s conduct.  The 9th’s reading prevents the defendant from asserting a subjective belief that the victim was “enjoying herself.”

The 9th held as well that there was probable cause, and that he was properly Mirandized. The court acted within its discretion in refusing the jury’s request to read back portions of the victim’s testimony.

Concurring, Gilman would require that “knowingly” in the statute be applied to “without that other person’s permission.” He argues  that this is a better reading the text, and one supported by the Supreme Court in Flores-Figueroa v. US, 556 US 646 (2009)(knowingly applied to each element of the statute).  The statute does not criminalize innocent sexual conduct based on a fact – lack of permission – unknown to the defendant.  The lack of permission can be proved by the gov’t by circumstantial evidence.

There is now arguably a split with the 8th Circuit’s reading of a related statute, 2242(2), in US v. Bruguier, 735 F.3d 754 (8th Cir. 2013)(en banc).

Gilman concurs because any error was harmless.  He notes too that his “concurrence” was taken from a draft opinion authored by Judge Reinhardt before his death. Nguyen replaced him.  This was consequential.

Deputy Federal Defender Jonathan Libby of Cal Central (L.A.) presented the “knowingly” issue well.  Again, we apparently have a circuit split.

The decision is here:
US v. Monique Lozoya, No. 17-50336 (4-11-19)(M. Smith w/Settle;  partial concurrence and dissent by Owens). 

This is an interesting opinion—think of it as an in-flight venue.  Indeed, the case concerns the proper venue for a simple assault (class B) that occurred on a flight from Minneapolis to Los Angeles.  Somewhere over the Great Plains, the defendant, in a middle seat, grew annoyed with the jostling from the seat behind her. She confronted the passenger when he left the seat. In her version, his abrasive shout startled her and she reactively “made contact with his face.”  In the victim’s version, she yelled at him to stop tapping the TV screen, and hit him with the back of her hand, causing his nose to bleed.

About a month after the incident, the defendant faced a violation notice for a class B misdemeanor. She subsequently was charged with an information.  This is important because of the issue of Speedy Trial.  The court, and then the 9th, found no violation.

At a bench trial, with various witnesses, the court convicted the defendant of simple assault under 113(a)(4). The defendant had moved for a rule 29 acquittal based on venue.  This was denied.

On appeal, the 9th found that venue was violated.  The 9th deemed venue improper in California Central. The proper venue was where the charged offense occurred: somewhere before the flight entered Cal Central airspace.  The 9th looks at article III of the Constitution, Supreme Court precedent (US v. Rodriguez-Moreno, 526 U.S. 275 (1999), and the statute for venue, 18 U.S.C. § 3237.  Each authority focuses on the offense, charged conduct, or incident.  Rodriguez-Moreno clearly states that to ascertain venue, a court must look at the charged conduct and the location it took place. The interstate commerce requirement for the assault, moreover, does not transfer to venue.

The 9th acknowledges this is contrary to the 10th and  11th Circuit precedent.  The 9th dismissed the opinions as pre-Rodriguez-Moreno and without analysis.

The 9th recognizes issues with exact location but states that modern technology and witnesses can prove venue.  It also says that Congress could fix the statute easily by making venue proper where the flight landed. 
Dissenting, Owens believes that the 9th is too clever.  It misapplies the conduct rule, ignores the purpose of venue (why over the Great Plains – with no connection -- and not where the flight landed), and flies blind as to problems with, say, the Northeast, where there are multiple districts and Circuits, all possible venues, or not.

As to be expected, both the majority and dissent use the facts of air flight to be creative (i.e. “friendly skies)”.  Owens starts his dissent with a listing of films where criminal conduct takes place on flights (“You do not need to watch Passenger 57, Flightplan, Turbulence, or even the vastly underrated Executive Decision to know that dangerous activity occurs on airplanes” 26). 

Congrats to Deputy Federal Defender Jim Locklin, Cal Central (Los Angeles) for quite a win.  Many of us will now listen to possible periodic updates on venue as we cruise at 30,000 feet in middle seats.

The decision is here:
US v. Johnson, No. 18-10016 (4-9-19)(Bennett w/M. Smith & Nguyen).

This opinion reminds us that objections to facts in the PSR matters, even in criminal history.  The 9th affirms a sentence in a felon in possession appeal. The defendant argues on appeal that his prior conviction was erroneously characterized and counted as a felony; he contends that it was a California “wobbler” and thus a misdemeanor. Although the gov’t said that the review should be plain error, and the defendant said de novo, the 9th said it didn’t matter because under Rule 32, the defendant failed to object to the facts that a prior was a felony, and indeed, even conceded in the sentencing memo that the defendant had “two felonies.” Alternatively, the 9th reaffirms the approach of “wobblers” under Moncrieffe v. Holder, 569 US 184 (2013), where the conduct could be both a felony and a misdemeanor.  There is no “wobbling” here, because the conduct was punished as a felony. The 9th stresses that a wobbler conviction is punishable as a felony, even if a court later exercises its discretion to reduce the offense to a misdemeanor. The classification of a wobbler conduct as a misdemeanor does not operate retroactively.

The decision is here:


Sunday, April 14, 2019

Case o' The Week: A Wobble Bobble? - Christopher Johnson, Claims vs. Arguments, and Rule 32 on Appeal

  Priors may wobble, but they don’t fall down (in the Ninth).
United States v. Christopher Johnson, 2019 WL 1523106 (9th Cir. Apr. 9, 2019), decision available here.

Players: Decision by Judge Mark Bennett, joined by Judges M. Smith and Nguyen. 
  Hard-fought appeal by AFPDs Amy Cleary and Cullen Macbeth, D. Nevada FPD.

Facts: Johnson pleaded guilty to being a felon in possession of a firearm. Id. at *1. The DJ assigned a base offense level of 20, based on prior “crime of violence” felony priors. Specifically, Johnson had been convicted in California for assault with a deadly weapon (not a firearm), in violation of CPC § 245(a)(1). Id. at *2. Johnson had been sentenced to six months in county jail for that offense. Id. 
  In federal court, the defense objected to the use of this assault prior as a “crime of violence” because it lacked the necessary men rea. Johnson did not, however, object to its classification as a felony. Instead, in its sentencing memo, the defense stated Johnson had two prior felony convictions. Id. 
  The district court counted this Cali prior as a felony crime of violence: Johnson appealed.

Issue(s): “On appeal, Johnson argues that the district court erred by applying a crime-of-violence enhancement to his offense level. We first consider whether Johnson’s concessions in the district court foreclose his newly minted argument that his underlying conviction for violation of California Penal Code (‘CPC’) § 245(a)(1) was not actually a felony under California law. Reviewing de novo, we also examine Johnson’s CPC § 245(a)(1) conviction to determine whether it truly was for a felony, and if so, whether, in light of Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), a felony conviction for violating CPC § 245(a)(1) can be a predicate offense for a crime-of-violence enhancement.” Id. at *1.

Held:Because the answer to all three questions is yes, we affirm Johnson’s sentence.Id.

Of Note: The troubling holding Christopher Johnson is not really the “crime of violence” holding -- though disappointing, this holding on Cali assault is old news. The real problem is the Ninth’s rejection of a new defense argument on a preserved claim that the crime-of-violence enhancement was improper as to a particular prior. Id. at *2. 
  On appeal, Johnson argued that this § 245(a)(1) prior was actually a “wobbler;” a uniquely Californian breed of offense where felonies can be “wobbled” down to misdemeanors. Id. The Ninth didn’t buy it. “We reject Johnson’s belated attempts to characterize his underlying California conviction as a misdemeanor.” Id. Because trial counsel didn’t dispute the PSR’s characterization of the prior as a felony, appellate counsel was stuck with that “fact” on appeal – even though the defense had asserted a claim in the district court that the prior didn’t qualify as a felony crime of violence. Id. at *4.
 The law in the Ninth has long been that parties can waive claims, but not arguments . Notably, in its briefing the Nevada FPD cited United States v. Pallares-Galan,359 F.3d 1088 (9th Cir. 2004) for that proposition. See AOB, 2018 WL 2234305 at *15-16. Yet the Ninth doesn’t cite or address Pallares in Christopher Johnson. As the NorCal appellate brain trust has observed, this is particularly troubling given the Ninth’s fondness for this “claim / argument” distinction when it salvages the government’s new arguments on appeal. See, e.g., United States v. Blackstone, 903 F.3d 1020, 1025 & n.2 (9th Cir. 2018); see also “How to Use” discussion here. 
  Beware of Christopher Johnson – the “claims / arguments” line of authority may have a PSR-objection carve-out, now. The decision is worth a close read for its great emphasis on Fed. R. Crim. Proc. 32 ramifications in the district court, and the corresponding encroachment on the claims/argument distinction on appeal.

How to Use: Despite the waiver holding discussed above, the Ninth does go on to hold in the alternative that this wobbler prior was not actually a mido. Id. at *5.
  For better or worse, Christopher Johnson is now a lead case on the analysis of Cali wobblers -- turn to the discussion at *5-*7 when your client has California “wobbler” priors at issue (and object in the district court!)
For Further Reading: What’s a wobbler?
  For a brief and accessible summary, written for a federal practitioner, see California ‘Wobblers’: How to Determine Whether a Prior California Conviction Was a Felony or Misdemeanor, by former CD Cal AFPD Davina Chen, available here

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


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Saturday, April 06, 2019

Case o' The Week: Protection sans Objection - Haines and FRE 412 Evidence

  The Federal Rules of Evidence cannot be used as both a sword and a shield.

  (By the defense).
United States v. Haines, 918 F.3d 694 (9th Cir. Mar. 14, 2019), decision available here.

Players: Decision by visiting District Judge Adelman, joined by Judges Wallace and Friedland.  

Left to right, the Honorable Judges Wallace and Friedland, and the Honorable District Judge Adelman
Facts: Haines and his friend King were charged with transporting two minor females from Nevada to California to work as prostitutes. Id. at 696. Over time, the girl alleged to have worked for Haines changed her story to the Feds. By trial, she testified that she did not prostitute for Haines and that her grand jury testimony was false. Id. Instead, she testified that she worked independently. Id.
   At trial, Haines attempted to question the girl about her prior prostitution activities (that did not involve a pimp), arguing that this was relevant to the question of whether he recruited her or encouraged her to engage in prostitution. Id. The district court excluded this testimony under Federal Rule of Evidence 412, the “rape shield” rule. Id.
  Haines was convicted, and appealed.

Issue(s): “Haines argues that evidence of J.C.’s prior prostitution activities should have been admitted under the exception to Rule 412 for 'evidence whose exclusion would violate the defendant's constitutional rights'—here, his due process right to present a complete defense and his Sixth Amendment right to confront witnesses.” Id. at 697.

Held: “[I]n cases involving adult victims forced or coerced into prostitution, courts have rejected such arguments, concluding that evidence of other prostitution activity has little or no relevance. Courts have reasoned that just because a victim agreed to engage in sex for money on other occasions does not mean she consented to, e.g., being beaten or having her earnings confiscated by the defendant.” Id. at 697-89 (citations omitted).
  “Haines cites no case holding that a defense such as the one he sought to present here triggers the exception in Rule 412. And we see no reason to depart from the persuasive authorities set forth above that held to the contrary.” Id. at 698-99.

Of Note: The unusual fact in Haines was that the female victim-witness for this Fed. R. Evid. 412 brouhaha was putatively a defense witness. She had recanted her grand jury testimony by the time of trial (after a jailhouse call from Haines, unfortunately). Atypically, the witness wasn’t objecting to the admission of this prior-prostitution evidence by Haines. The government was therefore using Rule 412 not as a shield, to protect a witness’s privacy, but as a sword, to prevent a defendant from eliciting favorable testimony “from a recalcitrant witness.” Id. at 699.
  No matter, concluded the Ninth, in a disappointing limitation on a defendant’s constitutional right to present a defense. “[A]llowing the victim’s wishes to control opens the door to mischief.” Id.      

How to Use: The narrow window left open on this type of “prior prostitution” evidence is when the government “opens the door” by suggesting that an alleged pimp introduced a minor to prostitution (that she was “an innocent lamb led to the slaughter).” Id. at 700. The Ninth holds this door wasn’t opened in the Haines case, in part because the district court warned the government against this line of evidence and argument.  The Court seems to recognize, however, that this type of evidence could be admissible if made relevant by the government’s approach.
For Further Reading: On March 26, the Senate confirmed President Trump’s nomination of the Honorable Magistrate Judge Bridget Bade, of Phoenix, to the Ninth Circuit Court of Appeals. See press release here
  Judge Bade will be joining two confirmed Ninth Circuit Trump nominees: the Honorable Judge Mark Bennett of Hawai’i, and the Honorable Judge Ryan Nelson of Idaho. See Ninth Circuit chart here
 Two additional Ninth nominees cleared the Senate Judiciary Committee on April 4, 2019: Mr. Daniel Collins, of L.A.’s Munger, Tolles & Olson, and Mr. Daniel Lee, of L.A.’s Jenner & Block. See article here

Image of (skeptical) United States v. Sha-Ron Haines panel from

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


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Thursday, April 04, 2019

US v. Mutee, No. 17-15415 (4-4-19)(Per curiam w/ Wallace, Rawlinson, and Watford). (Editorial Note: This is an Az FPD habeas case). In a Johnson habeas, the 9th decides that a conviction under North Carolina’s breaking and entering statute qualifies as a predicate felony for ACCA. 

Petitioner here argues that the statute is overbroad. Petitioner argues that the state statute can include mobile homes. However, recently, the Supreme Court in US v. Stitt, 139 S.Ct 399 (2018) held that generic burglary includes burglary of mobile structures used or adapted for overnight accommodations. Petitioner’s argument relied on pre-Stitt 9th Cir precedent, US v. Grisel, 488 9th Cir 844 (9th Cir. 2007) (en banc), which held that generic burglary requires entry of a structure designed for occupancy in one place. This panel therefore abrogates Grisel’s “use of one place” in light of Stitt.

The decision is here: