Friday, August 30, 2019

US v. Chi, No. 17-50358 (8-30-19)(Bea w/Rawlinson & Settle). The 9th affirms a conviction on a count of an illegal money transaction over $10,000, pursuant to 18 U.S.C. § 1957. The illegal act was “against a foreign nation,” and specifically “bribery of a foreign official,” pursuant to 18 U.S.C. § 1956. On appeal, defendant argues that the reference to “bribery of a public official” refers to the federal bribery statute, 18 U.S.C. § 201, and required those elements and definitions. The 9th disagrees. The 9th holds that “bribery of a public official” under § 1956 has an ordinary common meaning is not constrained, nor limited, by § 201.  Indeed, the South Korean Criminal Code has an offense that “fits comfortably” within the ordinary meaning of “bribery of a public official.” There was no instructional error. There was also sufficient evidence to support the conviction.

The decision is here:


Wednesday, August 28, 2019

US v. Hanson, No. 18-30037 (8-28-19)(Tallman w/Ikuta & N. Smith). The defendant was convicted of receipt of child porn while on SR for a previous child porn conviction. The court committed plain error in sentencing him for the SR violation using the 2017 guidelines instead of the 2007 guidelines. This violated ex post facto (2 yrs instead of 5 years). The sentence is vacated and remanded because the court, in fashioning an appropriate sentencing package, seemingly had taken the two sentences into consideration.

The decision is here:

2. US v. Lillard, No. 16-30194 (8-28-19)(Fletcher w/Hawkins; Bennett dissenting). This is a MVRA issue regarding the definition of “period of incarceration.” The 9th holds that pretrial detention is not a “period of incarceration” for purposes of applying an inmate’s receipt of “substantial resources” to be applied to restitution.  This holding is a result examining the language and statutory context of the provision 18 USC 3664(n) and the application of the rule of lenity. The amount here is $6,671.81. The matter is not moot because the defendant pled and received a 196 month sentence.

Dissenting Bennett argues that pretrial detention counts as a “period of incarceration,” that there is no ambiguity, and that the rule of lenity does not apply.

Congrats to AFPD Greg Murphy, Washington West FPD (Seattle) for the win.

The decision is here:

3. US v. McAdory, No. 18-30112 (8-28-19)(Hawkins w/Fletcher & Bennett). “When is a felony not a felony for the purposes of 18 USC 922?” It isn’t a felony when, under a mandatory sentencing scheme, the defendant is exposed to a sentence that does not exceed one year.  This was the holding in US v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019), and it applies here.  Valencia-Mendoza defines “punishable by” as the sentence to which the defendant is actually exposed under Washington’s mandatory sentencing scheme, overruling US v. Murillo, 422 F.3d 1152 (9th Cir. 2005), which looked to the statutory max, and not the guidelines. Valencia-Mendoza was compelled by two intervening Supreme Court cases, Carachuri-Rosendo v. Holder, 569 US 563 (2010) and Moncrieffe v. Holder, 569 US 184 (2013). In this case, the defendant’s priors were all under a year, and those sentences were mandated. The conviction is vacated, and the court is ordered to dismiss the indictment.

Congrats to Ann Wagner and Greg Geit, AFPDs in FPD Wash. W (Seattle) for the win: a dismissal!

The decision is here:


Tuesday, August 27, 2019

US v. Fitzgerald, No. 18-10116 (8-26-19)(Per curiam w/Watford & Hurwitz; dissent by Fletcher). This case concerns whether Nevada’s attempted battery with substantial bodily harm in violation of Nev. Rev. Stat. 200.481(2)(b) and 193.330 is a  “felony conviction” and a COV. The district found it was neither. The 9th disagrees, and vacates and remands the sentence.  The 9th finds the conviction is not a “wobbler”. Under US v. Johnson, 920 F.3d 628 (9th Cir. 2019), the court looks to the designation given by the state and how it is treated. The state treats this conviction as a felony. It is also a COV due to the requirement of substantial bodily harm. Dissenting, Fletcher argues that bodily harm is overbroad, as a mere touching of third degree burn, for example, may have prolonged pain.

Tough loss after a spirited defense by AFPD Amy Cleary of Nevada FPD (Las Vegas).

The decision is here:
1. Panah v. Chappell, No. 13-99010 (8-21-19)(Owens w/Wardlaw & Nguyen). The 9th affirmed a capital conviction and sentence. It rejected the petitioner’s Napue claim (knowingly false serology testimony presented).  The 9th was troubled by the testimony, and even aghast at the lack of pretrial investigation and mitigation, but AEDPA deference and the terrible facts of the case made any error harmless.

Tough case and valiant efforts by Joe Trigilio, Mark Drozdowski, and Susel Carrillo-Orellana of the FPD Cal Central CHU (Los Angeles).

The decision is here:

2. US v. Green, No. 17-30227 (8-21-19)(Berzon w/Tashima & Fletcher). The 9th vacated sentencing and remanded in a rare allocution/acceptance of responsibility case. The 9th held that here it was plain error for the district court to conclude that it must decide acceptance before hearing from the defendant at allocution. This error was both procedural and substantive.

The contested matter here was relevant conduct for guns in a safe (the defendant was a prohibited possessor). He received an adjustment for the number of guns.  He admitted possession of the gun on him when stopped. His argument was that the govt could not prove the other guns in the safe were his. The govt could (via recording after his arrest asking about the safe). The court then implied that his contesting the adjustment endangered his acceptance. Defense counsel said that the defendant intended to allocate and express contrition.  Too late, stated the court, because procedurally he had to make the finding before allocution.  As summarized above, the 9th found this both procedurally and substantively plain error.  The court is not compelled to decide acceptance before hearing allocution.

The decision is here:

Sunday, August 25, 2019

Case o' The Week: Ninth Very Intentional, on Recklessness - Begay, Recklessness, and Crimes of Violence

  No “crazy pills” were ingested in the writing of this opinion.

The Hon. Judge D.W. Nelson

United States v. Begay, 2019 WL 3884261 (9th Cir. Aug. 19, 2019), decision available here.

Players: Decision by Judge D.W. Nelson, joined by Judge Clifton. Dissent by Judge N.R. Smith. 
  Admirable victory for AFPD “Edie” Cunningham, D. Arizona.

Facts: Begay was convicted of second-degree murder, in violation of 18 USC §§ 1111 and 1153. Id. at *1.
  He was also convicted of discharging a gun during a “crime of violence” (this murder), under 18 USC § 924(c). Id. at *2.

Issue(s): “Begay was convicted of discharging a firearm during a ‘crime of violence’ under 18 U.S.C. § 924(c). On appeal, Begay argues that second-degree murder does not qualify as a ‘crime of violence.’” Id.  

Held: “To determine whether second-degree murder is a ‘crime of violence’ we apply the ‘categorical approach’ laid out in Taylor . . . Based on the facts of this case, it may be hard to understand how the shooting of [the victim,] Ben by Begay might not be a ‘crime of violence.’ Under the categorical approach, however, we do not look to the facts underlying the conviction, but “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of” a “crime of violence.” See Descamps. . . . The defendant’s crime cannot be a categorical ‘crime of violence’ if the conduct proscribed by the statute of conviction is broader than the conduct encompassed by the statutory definition of a “crime of violence.” See id.” Id. at *3.
  Second-degree murder does not constitute a crime of violence under the elements clause—18 U.S.C. § 924(c)(3) (A)—because it can be committed recklessly. Id. at *4. “We REVERSE Count Two of Begay’s conviction for discharging a firearm during a “crime of violence” under 18 U.S.C. § 924(c)(1)(A) . . . .” Id. at *6.

Of Note: Judge N.R. Smith begins his dissent by quoting Zoolander: “I feel like I am taking crazy pills.” Id. at *6 (N.R. Smith, J., dissenting).

  In Judge Smith’s view, the majority should have used second-degree murder’s “malice aforethought” requirement as some sort of proxy, that revs-up a reckless-conduct offense into qualifying as a “crime of violence.” He urges this novel “malice aforethought” theory as a new way to find that a reckless second-degree murder is serious enough to be a “crime of violence.” Id.
  Judge Smith’s dissent conspicuously baits the en banc hook. The Ninth shouldn't bite – the dissent doesn’t grapple with the reality of the controlling Ninth Circuit, en banc Fernandez-Ruiz decision, and fails to engage with the Majority’s (correct) reading of Voisine. While this outcome may stick in some craws, Begay’s legal analysis is spot on.   

How to Use: The nub of Begay is this: did the Supreme Court’s 2016 decision in Voisine, holding that a “misdemeanor crime of domestic violence” includes “reckless assaults,” overrule the Ninth’s 2006, en banc Fernandez-Ruiz decision, holding that crimes that can be committed recklessly are not “crimes of violence” under § 16? Id. at *5. 
  In a thoughtful and principled analysis, Judge D.W. Nelson carefully explains that Voisine left this question open. Id. Judge Nelson remains faithful to Ninth Circuit law interpreting 18 U.S.C. § 16 to 18 U.S.C. § 924(c), and – staying true to precedent – continues to hold that a “crime of violence under 18 U.S.C. § 924(c)(3) requires the intentional use of force.” Id.
  Read Begay carefully when considering a “reckless” offense the government argues is a “crime of violence.” Under existing Ninth authority, “reckless” just won’t cut it.
For Further Reading: Last week a (Latino) Tenderloin drug dealer was sentenced in federal court, in the Northern District of California. See N.D. Cal. USAO Press Release here. 
  A week or so before, the “Federal Initiative for the Tenderloin” (“FIT”) kicked off, with drug charges filed against nine (Latino) defendants in the Tenderloin. See N.D. Cal. USAO Press Release here. 
 Days before that, thirteen (Latino) defendants were charged in a drug trafficking conspiracy, for allegedly selling drugs in the Tenderloin. See N.D. Cal. USAO Press Release here. 

  Substitute “Latino defendant” for “black defendant,” and the USAO's new “FIT"-focus has some Safe Schools déjà vu, all over again. See “For Further Reading,” available here; and here.

Image of the Honorable Judge D.W. Nelson from
Image of “Tenderloin National Forest” from

Steven Kalar, Federal Public Defender ND Cal. Website at


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Wednesday, August 21, 2019

Avena v. Chappell, No. 14-99004 (8-9-19)(Thomas w/Graber & M. Smith). The 9th reverses the denial of a capital penalty IAC claim. The 9th found that the complete failure of counsel to present any mitigation was IAC. Investigation could have presented character evidence, evidence of childhood abuse, habitual PCP use, and the need for self-defense in a prison setting.  None of this was done. There was prejudice. The evidence was exactly the type that could have persuaded a juror to show mercy.

Congrats to Sean Kennedy, Michael Lightfoot, and Deputy FPD Mark Krozdowski, FPD Cal Central (Los Angeles)

The decision is here:


Tuesday, August 20, 2019

1. US v. Begay, No. 14-10080 (8-19-19)(Nelson w/Clifton; dissent by N. Smith). Note: This is an Az FPD Case. Is second-degree murder a categorical “crime of violence”? The 9th holds it is not. As such, although the murder conviction is affirmed the 924(c) is reversed, and so is mandatory restitution. 

The majority’s holding that second degree murder is not a COV rests on a categorical analysis. The focus is on recklessness. The 9th concludes that recklessness, even gross recklessness, is not intentional. The example is firing into a house or car. The majority finds the Supreme Court’s recent decision in Voisine (misdemeanor recklessness) specifically refers to only that offense and explicitly does not foreclose other circuits’ approaches to other offenses.

The conviction is affirmed. Under plain error, the 9th found no error in not requiring the prosecution to prove not acting in the heat of passion” beyond a reasonable doubt. The defense was “someone else shot.” 

Dissenting, N. Smith is incredulous that second degree murder is not a COV (“I feel like I am taking crazy pills.” p. 18). Calling it an “unbelievable result,” contrary to Supreme Court precedent, and the 9th’s own analysis — no categorical flights of fancy—the dissent finds the opinion defies “reality and logic.”  All of this occurs in the first two paragraphs. This is followed by 13 pages of how wrong the majority must be. The dissent’s point ultimately is that malice aforethought acts as the intent for murder, and that a depraved heart with its degree of recklessness makes this a COV. 

Congrats to Edie Cunningham, AFPD, FPD Az (Tucson) on a hard fought and hard argued win.

The decision is here:

2. US v. Shayota, No. 17-10270 (8-19-19)(O’Scannlain w/Schroeder & Rawlinson. Concurrence by O’Scannlain). This is a confrontation clause issue. The 9th allows introduction of a witness’s prior civil deposition testimony after the witness subsequently invokes 5th amendment rights against self-incrimination. The defendant argued that his right to confront was violated because the government, which introduced the civil testimony (attended by defendant’s lawyers) could have granted immunity to the witness and thus making him available. The 9th finds a tension in the confrontation issue and a lack of clarity in precedent.  However, the 9th sidesteps a definitive ruling, holding that in this case, a fraud conviction, any possible error is harmless. 

O’Scannlain wants to call attention to the sidestepping and pens a concurrence. The concurrence is a call, bordering on a chastisement, for the circuit courts to examine the historical context of privileges, availability, and the confrontation clause. He believes that various precedents need to be harmonized, or re-examined; that unavailability possibly could be narrowed; or redefined.

The decision is here:

3.  US v. Cuevas-Lopez, No. 17-10438 (8-19-19)(Friedland w/Clifton; Ikuta dissenting). The 9th applies the “single sentence” rules of USSG 4A1.2(a)(2) to 2L1.2(b)(2) and (b)(3). Simply put, two 3.5 year sentences, imposed to run consecutively, handed down at the same proceeding, counts under the new 1326 offense enhancement guidelines as a 7 year sentence (an enhancement is imposed if a sentence is greater than 5 years). The 9th so finds through various allusions, omissions, justifications, and assuming what the Commission intended. The 9th is loath, and states as much, to foster a Circuit split with the 5th, which recently found a single sentence.

Dissenting, Ikuta would find that the plain language requires the convictions to be considered under 5 years. She employs a simple but powerful analysis: the offense guideline refers to “a conviction” and not “the sentence.” Chapter 4 refers to “the sentence.” The Commission in amending the Guidelines could have made this plain but did not.

The decision is here:

1. US v. Crum, No. 17-30261 (8-16-19)(Per curiam w/Fletcher & Bybee; dissent by Watford). The 9th vacated and remanded for resentencing in an Oregon case where the district court had found that delivery of meth was not a controlled substance offense under 2K2.1(a)(4)(A). The issue is whether “solicitation” makes the state statute overbroad. Majority finds itself bound by prior precedent, Shumate, 329 F.3d 1026 (9th Cir. 2003), which had construed   “delivery” as including solicitation. The reliance by the district court on Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017), was misplaced. Sandoval concerned drug trafficking under the Controlled Substances Act and not the Guidelines.  There are problems with the analysis in Shumate and also Vea-Gonzales, 999 F.2d 1326 (9th Cir. 1993). The panel seems to suggest en banc review.

Watford, dissenting, would find the Oregon statute still overbroad. It criminalizes a mere offer to sell as a delivery.  A mere offer to sell is also not solicitation.

Tough loss for AFPDs Ted Blank and Robert Schwarz of the Federal Defender Services of Idaho (Boise).

The decision is here:

2. US v. Cano, No. 17-50151 (8-16-19)(Bybee w/Graber & Harpool).  This is a significant cell phone/border search case.  The defendant was arrested for carrying cocaine through San Ysidro’s POE. Following the arrest, a Customs Agent seized the cell phone and searched it: first manually and then using software that accesses all texts, logs, media, and application data.  The defendant’s motion to suppress was denied.

The 9th reversed the denial of the motion and vacated the conviction. The 9th held that searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. The 9th clarifies US v. Cotterman, 709 F.3d 952 (9th Cir. 2013)(en banc)  by holding that “reasonable suspicion” it means that officials must reasonably suspect that the cell phone contains digital contraband. The 9th stresses that cell phone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband.

Congrats to Harini Raghupathi of the Federal Defenders of San Diego, for this important win.

The decision is here:

Pizzuto v. Blades, No. 16-36082 (8-14-19)(Per curiam w/Fisher, Gould, & Rawlinson). This is an Atkins capital petition. The 9th affirms the district court’s denial of habeas relief. The Idaho Supreme Court denied Atkins relief because petitioner’s IQ test was above 70. This was before the Supreme Court’s decisions in Hall, Brumfield, and Moore, which found that a strict IQ score above 70 should not preclude intellectual disability consideration. AEDPA deference compelled the 9th to find that the Idaho Supreme Court, in 2008, did not unreasonably apply Supreme Court precedent. 

The 9th did specifically stress that the state Supreme Court could reconsider these Atkins questions in light of Supreme Court subsequent decisions, and with the benefit of an evidentiary hearing, and evolving psychiatric clinical standards. The 9th noted that the court could address whether these standards now would violate the 8th amendment. 

Tough case for Joan Fisher, AFPD, Cal E (Sacramento).

The decision is here:
Two hard fought appeals from the FPD Oregon:

1. US v. Nejad, No. 18-30082 (8-13-19)(Watford w/N. Smith & R. Nelson). The 9th affirmed a “personal money judgment” in the criminal forfeiture context. The 9th did so based on prior precedent, finding that Honeycutt v. US, 137 S.Ct 1626 (2017) did not overrule it. The gov’t need not identify specific property, but can collect a sum of the forfeited value. However, the government must follow the provisions and constraints of 21 USC 853(p) and return to seek enforcement.

The decision is here:

2.  US v. Hernandez-Martinez, No. 15-30309 (8-13-19)(Berzon w/Graber & Robreno). 18 USC 3582(c)(2) allows a court to reduce a previously imposed sentence based on a guidelines reduction. However, the reduction is not allowed if the original sentence was below the new amended guideline range. This would not include substantial assistance departures.  See US v. Padilla-Diaz, 862 F.3d 856 (9th Cir. 2017).  Hughes v. US, 138 S. Ct 1765 (2018) did not overrule Padilla-Diaz. Hughes held that C pleas (stipulated) can be reduced under 3582c2 if the sentence had used the guidelines as a factor.

The decision is here:
US v. Sainz, No. 17-10310 (8-12-19)(Piersol w/Tashima & M. Smith). In an issue of first impression, the 9th holds that a district court cannot sua sponte raise a defendant’s waiver of the right to seek relief under 3582(c)(2) and then deny relief on that ground.

Here, the defendant was being sentenced on a drug charge. He had cooperated. At sentencing, the court and the defendant discussed a lowering of the guideline range that was proposed, but was not yet in effect. The defendant was then sentenced.  In his plea, he had expressly waived the right to file a 3582(c)(2) motion.  Subsequently, though, he filed such a motion.

The district court (a new judge) then sua sponte raised waiver and denied the motion. The 9th deemed this an abuse of discretion. Failure to raise an issue is deemed waived, and the gov’t failed to raise waiver in the district court. The court raising it sua sponte risked becoming an advocate. The dismissal was reversed and the case remanded.

Congrats to Carmen Smarandoiu, AFPD, Cal N (San Francisco).

The decision is here:


Riley v. Filson, No. 17-15335 (8-9-19)(McKeown w/M. Smith & Hurwitz). The 9th held that the district court did not abuse its discretion in denying the State’s 60(b)(6) motion seeking relief from a grant of habeas relief.  This case is about state law interpretation, especially relating to first-degree murder and the elements.  In 1991, the 9th interpreted Nevada state law as regards to first-degree murder in 1991 in Riley I, 786 F.3d 719 (9th Cir. 2015). The 9th found three separate elements.  The State now argues that the state supreme court changed its interpretation post-Riley and thus undermines Riley I. The 9th disagrees.  While the definitions for a period – 1992 to 2000 – were merged, the “window” of this merger occurs after the petitioner’s conviction was final. The 9th acknowledges that the state supreme court may disagree with whether these elements need to be defined separately; there is no disagreement with the three separate elements.

Congrats to David Anthony and Ben McGee, AFPDs with the Nevada FPD (Las Vegas).

The decision is here:

Sunday, August 18, 2019

Case o' The Week: Neutral Calls For Strikes and Balls - Sainz and Judicial Assertion of Defense Waivers

  The bench makes the calls, notes the Ninth: let the players play the game.
United States v. Sainz, 2019 WL 3770817 (9th Cir. Aug. 12, 2019), decision available here.

Players: Decision by visiting District Judge Piersol, joined by Judges Tashima and M. Smith.
  Big win on national issue of first impression for N.D. Cal FPD Chief of Appeals Carmen Smarandoiu.

Facts: Sainz pleaded guilty to drug crimes and was sentenced to 188 months. Id. at *1. Id.
  In a post-sentence cooperation agreement, Sainz waived his right to seek post-sentence reductions of his sentence under 18 U.S.C. § 3582(c)(2). Id. At the cooperation re-sentencing hearing, the court went down to 120 months. Id.
   Roughly a year later, Sainz moved for another reduction of his sentence under § 3582(c)(2) – specifically, for a reduction under Amendment 782, which had lowered his guideline range by thirty months or so. Id. at *2. Although neither party raised the earlier waiver of such claims, the district court denied Sainz’s motion based on the § 3582(c)(2) waiver in his cooperation-agreement. Id.
  Sainz appealed.

Issue(s): “We begin our analysis by nothing that no circuit has directly addressed whether it is appropriate for a district court to invoke sua sponte a defendant’s waiver in an agreement with the government of the right to file a § 3582(c)(2) motion.” Id. at *2.
  “In this case of first impression, we consider whether a district judge may sua sponte raise a defendant’s waiver of the right to seek relief under 18 U.S.C. § 3582(c)(2) and deny the defendant’s motion for resentencing on that ground.” Id. at *1.

Held: “We hold that it may not. . . . [and] reverse the . . . denial of Sainz’s motion for a sentence reduction.” Id.

Of Note: Our job is to take swipes at the government, but the wise exercise of prosecutorial discretion also merits a nod.
  Sainz’s counsel was ND Cal FPD Appellate Chief Carmen Smarandoiu. Ms. Smarandoiu reported to the Ninth that the N.D. Cal. U.S. Attorney’s Office generally did not assert § 3582(c)(2) waivers in the many cases where they existed. The Sainz decision cites this unrebutted assertion, id. at *6 n.3, which goes on to report that the majority of the district’s Drug Resentencing cases were resolved by stipulations between the FPD and USAO (despite the existence of waivers for many of our clients).
  Many of NorCal’s drug clients received real resentencing relief, and are now serving far fewer years in prison, because the USAO quietly, and deliberately, refrained from invoking § 3582(c)(2) waivers during the administrations of U.S. Attorneys Haag, Stretch and Tse.
  Nothing more becomes the federal government than self-imposed restraint.

How to Use: Sainz has a complicated procedural history, but a clean new rule: district courts cannot sua sponte invoke waivers that are not asserted by the government.
  The Ninth makes it clear that this rule applies to the Circuit as well: “Although we have not addressed whether a district court may raise a defendant’s waiver, we have concluded that, on appeal, courts should not raise waiver sua sponte.” Id. at *2.
  The Court declines “to hold that the government’s silence about a defendant’s waiver of the right to file a § 3582(c)(2) motion allows the district court to sua sponte raise the waiver.” Id. at *4. “In other words, the government must do more than remain silent: it must expressly invoke the waiver to avoid waiving it.” Id. Sainz is well-written and thorough in its discussion of the “waiver of waiver” problem.
  Turn to Sainz when your district (or appellate) judge edges out of their role as a neutral ump, and starts swinging at waivers not raised by the AUSA.
For Further Reading: Our problem with crime, A.G. Barr just explained, arises from District Attorneys who “style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.” See DOJ Press Release here
  In a similar vein, E.D. PA U.S. Attorney McSwain just blamed a tragic shooting in Philadelphia on a “culture of disrespect for law enforcement” “promoted and championed” by D.A. Larry Krasner. See E.D. PA USAO Press Release here   Closer to home, 73 were just arrested in San Francisco's Tenderloin a single day, in an effort clearly coordinated with the NorCal USAO’s Helping HandFIT” project. See article here

  This is how Federalists respect states’ rights, and honor local control of local criminal justice issues? See essay by Edwin Meese, here

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



Sunday, August 11, 2019

Case o' The Week: Ninth Has Patience of Jobe for (Long) Delayed Search Warrant - Jobe, Herring, and Search Delays

 (Rotten Herring).
United States v. Royce Jobe, 2019 WL 3757596 (9th Cir. Aug. 9, 2019), decision available here.

Players: Decision by visiting DJ Korman, joined by Judges Wardlaw and Hurwitz. 
  Hard-fought appeal by AFPD Margaret Farrand, CD Cal FPD.

Facts: DHS Special Agent Paul Cotcher got a state warrant for Jobe’s residence, on suspicion of a marijuana distribution. Id. Among other things, the search produced a laptop that was seized, but not searched. Id.
   Cotcher then convinced the Feds to take the case. Nearly three weeks later, he got a federal search warrant for the laptop. Id. Twenty days after it was seized, the laptop was finally searched. Id. That search produced evidence leading to federal charges. Id.
  The district judge granted Jobe’s suppression motion, finding unreasonable delay before the federal warrant was secured and laptop was searched. Id. at *2. 
  The government appealed. Id.

Issue(s): “Jobe argues that even if the seizure of the laptop under the state warrant does not provide a basis for exclusion, the twenty-day delay between that seizure and the subsequent execution of the federal search warrant justifies suppression.” Id. at *2.

Held: 1. P.C. in State Warrant, and Herring: “We accept that there was insufficient probable cause to seize the laptop. The state judge lacked a substantial basis for concluding that probable cause existed to seize the laptop because Cotcher’s affidavit did not mention a computer or any electronic devices, much less state any facts suggesting that Jobe’s laptop would likely contain evidence of a marijuana growing operation. . . . Nevertheless, Cotcher’s affidavit supporting the state warrant contained sufficient information to render his reliance on the warrant reasonable.” Id. at *2.
  2. Delay: “Even assuming that the delay was unreasonable, we disagree.” Id. at *2. “[United States v. Cha, 597 F.3d 995, 1003 (9th Cir. 2010)] is our only prior decision addressing the issue posed in Herring in the context of delays.” Id. at *3. “Cha and Herring . . . explain that suppression is warranted to deter deliberate, reckless, or grossly negligent conduct.Id.

Of Note: Special Agent Paul Cotcher illegally seized a laptop, despite an acknowledged lack of probable cause in the state search warrant. The Ninth, however, finds reliance on the state warrant “reasonable.” Id. at *2. 
  SA Cotcher then held the illegally-seized laptop for nearly three weeks, before finally getting a warrant authorizing a search. The district court (appropriately) suppressed. Although the Ninth grudgingly concedes that “Cotcher could have been more efficient in preparing an application” for the federal search, the Circuit still reverses the district court’s grant of the suppression motion, again citing Herring
  As predicted a decade ago, Herring is methodically hollowing-out Fourth Amendment remedies – and by extension, Fourth Amendment protections.

How to Use: Three weeks! That’s an awfully long time for SA Cotcher to sit on an (illegally) seized laptop, before he and the USAO finally get around to getting a second warrant. District Judge Korman spends much of the opinion trying to distinguish Judge Beezer’s decision in Cha – a case where a one day delay merited suppression. 
  Delayed-warrant search cases in the Ninth are now going to have to wrestle with the awkward spectrum of Jobe and Cha: start with this unwieldy pair of opinions when the dust is thick on your client’s seized evidence.
For Further Reading: A decade ago, NorCal U.S. Attorney Russoniello infamously focused prosecutions on S.F.’s Tenderloin. His initiative federalized low-level drug sales, using the threat of drug mand-mins to coerce quick pleas to high federal sentences. The controversial effort even drew criticism from former AUSAs. See article here. Many of the harsh drug sentences from that era have been reduced over the years, thanks to Johnson, Crack Resentencing, Drug Resentencing, and the First Step Act. 
  Two years ago, NorCal’s U.S. Attorney’s Office charged 37 (all black) defendants in a Tenderloin “Safe Schools” initiative. After litigation, the USAO dismissed the cases in the face of a racial-profiling discovery motion by the FPD’s office (and an order compelling discovery production by the Honorable Judge Edward Chen). See “For Further Reading,” at blog entry here
  Five days ago, U.S. Attorney David Anderson announced “F.I.T.”: a new “Federal Initiative for the Tenderloin.” See N.D. Cal. USAO Press Release here. Thirty-two defendants have been charged federally thus far, though notably, another 73 were arrested by S.F. cops in the Tenderloin last week.

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


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Sunday, August 04, 2019

Case o' The Week: When in Doubt, File it Out - Fabian-Baltazar and Duty to File Notice of Appeal

  Hard to savor waiver favor.
United States v. Fabian-Baltazar, 2019 WL 3418449 (9th Cir. July 30, 2019), decision available here.

Players: Per curiam decision with Judges Rawlinson, Bea, and Hurwitz. Win for ED Cal AFPD Peggy Sasso.    

Facts: Fabian-Baltazar pleaded guilty to possession for distribution of over 50 grams of meth. Id. at *1. His plea agreement had waivers of the right to appeal and collateral attack. Id. 
   After sentencing, he nonetheless filed a § 2255. The habeas motion alleged (among other things) that his trial counsel committed IAC by failing to file a notice of appeal. Id. The district court’s dismissal, based on the plea agreement waivers, was affirmed by the Ninth. Id.
   The Supreme Court granted cert., vacated, and remanded, in light of Garza v. Idaho, 139 S. Ct. 738 (2019). 
  The government declined to enforce the collateral attack waiver on remand, to the Ninth, so the Circuit analyzed the case “as involving only an appeal waiver.” Id. at *2.

Issue(s): “The parties agree that a remand is required in light of Garza but disagree about the scope of the remand. Fabian-Baltazar argues that we should simply reverse the district court’s order and direct it to address the merits . . . . The government argues that, before proceeding to the merits, the district court must first determine whether Fabian-Baltazar requested his attorney to file a notice of appeal.” Id. at *2.

Held: “Fabian-Baltazar’s § 2255 motion contends that he expressly instructed his attorney to file a notice of appeal. But, the government has never had the opportunity to challenge that assertion, because . . . . prior rulings held that the collateral attack waiver nonetheless barred the § 2255 motion. The district court therefore should determine on remand whether such an instruction was given, and if not, whether counsel failed to consult, and if so, whether that failure constituted deficient performance.” Id. at *2.

Of Note: On their surface Garza and Fabian-Baltazar are nice outcomes: the defendants may get to file appeals, despite appellate waivers. 
  Counsel in the trenches, however, worry about breach: will the government start backing out of deals when a defendant demands an appeal despite an appellate waiver? See generally Garza, 139 S. Ct. at 756 (Thomas, J., dissenting) (discussing potential life sentence – instead of imposed ten-year term -- if Garza breached plea agreements by filing an appeal).
  The facts of Fabian-Baltazar illustrate the cost-benefit conundrum. Mr. Fabian-Baltazar was caught with 2,636 grams of meth. See D.Ct. Ord. Denying Habeas Mot., 2015 WL 1497537, *5. The government kept its side of the plea-agreement bargain, and recommended five offense levels off for Acceptance and Safety Valve. The district court varied down an additional 15 months from the guideline range, to a ten-year term. See id. 
  Fabian-Baltazar’s habeas, however, complains that he didn’t get below the mand-min of ten years (a promise not made in the plea agreement). Id. at *4.
  Will Mr. Fabian-Baltazar's long quest to file an appeal ultimately end in an Anders brief and breach exposure?
  Garza may vindicate appellate rights, but it adds real challenges to defense counsel charged with advising and protecting indigent clients.   

How to Use: Beware of Fabian-Baltazar’s lessons:

1. It is per se IAC to not file an appeal when expressly requested by our clients – even if there is an appellate waiver;

2. If you “consult” with the client after sentencing (consult means, “advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes,”), it is only IAC to not file notice of an appeal if we are expressly told to file by our client;

3) If you do not “consult” with your client about filing an appeal (even if there is an appellate waiver), it may be IAC.
  Id. at *2.

The punchline? Consult with clients about filing an appeal, even if there is an appellate waiver (and wise to document that discussion in a letter or memo).
For Further Reading: Rather than fuzzy law on our duties, IAC claims over alleged failures to notice appeals, and messing with habeas evidentiary hearings, wouldn’t it be simpler just to eliminate appellate waivers altogether?
  Don’t scoff: there seems to be a growing judicial skepticism to the things. In 2018, for example, the Second Circuit refused to enforce a waiver where no consideration was apparent in the plea agreement. See Second Circuit blog here

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


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