Saturday, November 30, 2019

Case o' The Week: Assault Challenge Worth a Shot - Gobert, Assault, and Johnson

   Is "Assault with a Deadly Weapon" a "crime of violence?"
   Distressingly, yes. 
United States v. Gobert, 2019 WL 6316678 (9th Cir. Nov. 26, 2019), decision available here.

The Hon. Judge Carlos Bea
Players: Decision by Judge Bea, joined by Judges Farris and Christen. Hard-fought appeal by AFPD David Ness, Fed. Defenders of Montana.

Facts: Gobert was driving on a reservation, drinking and using meth with friends. Id. A verbal interaction with another group of men escalated; Gobert shot at their truck with an AR15. Id.
  Among other things, Gobert was charged with 18 U.S.C. § 113(a)(3), assault with a dangerous weapon. Id. In a separate count, he was charged with 18 U.S.C. § 924(c), with the Section 113(a)(3) charge as the basis. Id.
  He plead to the § 924(c) charge, other counts were dismissed, and he was sentenced to five years. Id.
  Later, after Johnson v. United States, 559 U.S. 133 (2010), he filed Section 2255 motion (habeas), attacking the conviction by arguing that the Section 113(a)(3) charge was not a qualifying “crime of violence.” Id.

Issue(s): “The sole question presented by this appeal is whether the offense of assault with a dangerous weapon described in 18 U.S.C. § 113(a)(3) is a crime of violence under 18 U.S.C. § 924(c)(3)(A).” Id. at *1.
  “The Supreme Court has held that to qualify as a “crime of violence” under the elements clause, the offense must have as an element the use, attempted use, or threatened use of “violent [physical] force—that is, force capable of causing physical pain or injury to another person.” Johnson . . . ; Davis, 139 S. Ct. at 2325–26 (applying Johnson to § 924(c)). The question thus is whether the offense defined in the assault with a dangerous weapon statute meets that standard. Under the categorical approach used to make that determination, see Mathis v. United States, 136 S. Ct. 2243, 2248 . . . (2016), the more specific question is whether the least serious form of the offense meets the Johnson standard, see Moncrieffe v. Holder, 569 U.S. 184, 190–91 . . . (2013). If it does, assault with a dangerous weapon qualifies categorically as a crime of violence.”

Held: “We hold that it is.” Id. “There is simply no room to find assault with a dangerous weapon under § 113(a)(3) anything but a crime of violence under § 924(c)(3)(A)’s elements clause following Juvenile Female and Calvillo-Palacios’s binding precedent. The least violent form of each offense is the threat to use violent physical force through the use of a dangerous weapon that reasonably caused a victim to fear immediate bodily injury, which under Juvenile Female and Calvillo-Palacios necessarily entails at least the ‘threatened use of violent physical force’ to qualify the offenses as crimes of violence under § 924(c)(3)(A)’s elements clause. See Calvillo-Palacios, 860 F.3d at 1290; Juvenile Female, 566 F.3d at 948.” Id. at *3.

Of Note: The defense theory in Gobert was that “using a display of force with a dangerous weapon that reasonably causes a victim to fear immediate bodily injury does not necessarily require the use or threatened use of violent force against another as required under Johnson.” Id. at *2.
  Judge Bea rejects that challenge, concluding that Ninth holdings on other “threat” statutes necessarily meant that Section 113(a)(3) required the “threatened use of violent physical force.” Id. at *3. Disappointing, but, as discussed below, a new opportunity?

How to Use: Take a hard look at the § 113(a)(3) jury instructions. See Ninth Cir. Model Jury Instruction 8.7, available here. Curiously, the requirement that the defendant “threatened the use of violent physical force” is not expressly in the model instruction for this offense. 
   Think about these newly-minted, Johnson-required elements when mulling jury instructions, and Rule 29 motions, for this assault offense.
For Further Reading: Can a crime with a mens rea of “recklessness” quality as an A.C.C.A. “crime of violence?” 
  The Supreme Court will let us know. It recently granted cert. on Walker. See summary here.   

Image of Judge Bea from

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


Labels: , , ,

Saturday, November 23, 2019

Case o' The Week: A BEAutiful Appellate Waiver Case - Dailey and SORNA Registration Requirements

Give thanks, for the Ninth's limitations on appellate waivers.

United States v. Dailey, 2019 WL 5688814 (9th Cir. Nov. 4, 2019), decision available here.

Players: Decision by Judge Bea, joined by Judges Gould and Friedland.  

Facts: Jazzmin Dailey was charged with the prostitution of a minor in Las Vegas. Id. at *1. She charge-bargained to violating the “Travel Act,” which criminalizes travelling in interstate commerce with the intent to commit unlawful activity (including non-sexual criminal activity). Id. at *2; see also 18 U.S.C. § 1952(a)(3).
   Her plea agreement contained an appellate waiver.
  In an admirable decision, Chief District Judge Gloria Navarro varied downwards and sentenced Dailey to no imprisonment and three years of probation. Id. at *3.   The sentence included a provision that Dailey had to comply with the Sex Offender Registration and Notification Act (SORNA) as directed. Id. at *3. 
  Dailey was required to register as a sex offender in her state of residence, Arizona. Id.

Issue(s): “On appeal, Dailey makes three arguments challenging the legality of the condition requiring her to register as a sex offender. First, she argues the district court imposed an illegal sentence by requiring her to register as a sex offender because she was not convicted of a ‘sex offense.’ Next, she argues the district court did not provide her adequate pre-sentencing notice that she would be required to register as a sex offender under SORNA. And finally, she argues the district court delegated the Article III power to impose a criminal sentence by leaving the determination whether Dailey would be required to register as a sex offender to the probation office or state officials.” Id. at *1.

Held: “[W]e reject all three arguments, conclude that the sentence was legally imposed, and dismiss the appeal based on the enforceable appellate waiver in Dailey’s plea agreement.” Id.

Of Note: The core issue of Dailey is whether the residual clause in SORNA is subject to the categorical approach, (on the issue of whether an element of the statute of conviction required that the victim was a minor). Id. at *6-*7. Judge Bea concludes it is not: “the statutory text and structure are clear.” Id.
  The Ninth joins the 4th, 5th, and 8th Circuits and holds that a non-categorical approach to the SORNA registration requirements is appropriate. Id. at *7.
  This is bad news for our clients – the non-categorical approach cast a much broader net, and will ensnare defendants like Dailey in the SORNA registration requirements.

How to Use: There’s lots of words, in Dailey, for a case that ultimately upholds an appellate waiver. Judge Bea explains that the familiar Bibler exceptions to appellate waivers includes an unlawful sentence – and that unlawful probation conditions fall within this exception. Id. at *3 (citing United States v. Watson, 583 F.3d 974, 987 (9th Cir. 2009)). Judge Bea then works through each of the challenges to the registration requirement, to consider whether it was lawful. Because the terms of probation were finally concluded to be lawful, the Ninth ultimately enforces the appellate waiver.
  From the defense perspective, this appellate waiver turns out to be a de minimis barrier to full Ninth review of the legality of the conditions of probation (and the same theory applies to supervised release!)
  Consider Dailey when conditions of probation or supervised release get your goat, but there’s an appellate waiver in the plea agreement. If your Ninth challenge goes to the legality of the supervision conditions, an appellate waiver in a plea agreement is essentially a meaningless term: appeal away. If the probation (or supervised release) conditions are unlawful, the plea agreement’s appellate waiver is unenforceable: our clients win. If the conditions are lawful, the waiver is enforced – but our client has had full appellate review of their legality.
For Further Reading: Two more of President Trump’s Ninth nominees, Mr. Lawrence VanDyke and Mr. Patrick Bumatay, cleared another Senate hurdle last week. See article here.  

Image of turkey urging waiver from

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


Labels: , , , , , ,

Tuesday, November 19, 2019

US v. Ped, No. 18-50179 (11-15-19)(Miller w/ Owens & R. Nelson). The 9th affirms a search of a home that led to the conviction of the defendant for being a felon in possession. The 9th concluded there was probable cause based on reliable information that was corroborated, that the defendant was living there.
The 9th vacated SR conditions that were unconstitutionally vague and remanded. The 9th discussed why it was appropriate to demand.
A SR win for Gia Kim, Deputy FPD, Cal C (L.A.).


Sunday, November 17, 2019

Case o' The Week: Miller Sure of Ped-i-Cure - Ped, Conditions of Supervised Release, and Limitations of Appellate Review

The Honorable Judge Eric Miller

  Ninth nixes appellate fixes.
United States v. Ped, 2019 WL 6042813 (9th Cir. Nov. 15, 2019), decision available here.

Players: Decision by Judge Eric Miller, joined by Judges Owens and Ryan D. Nelson. 
  Supervised release win for AFPD Gia Kim, Central District of California.  

Facts: After a parole search for his brother produced guns at his house, felon Ped plead guilty, with a conditional plea agreement. The agreement allowed Ped to challenge the denial of a motion to suppress. Id. at *2.
  The district court imposed (old) standard conditions of supervised release: 1) that Ped “support his . . . . dependents and meet other family responsibilities,” that he 2) “work regularly at a lawful occupation,” and 3) that he “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.” Id. at *4.
  In United States v. Evans, 883 F.3d 1154 (9th Cir. 2018), the Ninth had held that these conditions were unconstitutionally vague. Id. Ped asked these conditions be corrected on appeal.

Issue(s): The government declined to assert the appeal waiver, and agreed that the conditions were unconstitutional. On appeal, “the government suggested that we rewrite the conditions and affirm the judgment as modified.” Id. at *4.

Held:Upon further consideration, the government changed its position and argued that a remand is appropriate. We agree.” Id.

Of Note: The key aspect of the supervised release beef in Ped is not whether the conditions of supervised release are constitutional: they aren’t.
  Instead, Judge Miller spills a fair amount of ink explaining why the appellate court cannot cobble together a fix, and instead must vacate the contested conditions and remand for resentencing. Id. at *5.
  Judge Miller is a new Ninthjurist, and Ped may offer an interesting insight into his views of the limited roles of an appellate court. That worked well for the defense here – but we may be less keen on this district-court deference when we’re attacking a decision under an “abuse of discretion” standard.

How to Use: Ped won this S/R battle, but lost the parole-search war at the heart of this case. Id. at *1. 
  The cops in this case learned that Ped’s brother, who was on “post-release community supervision” (like parole), lived in a house where Ped also resided. Id. at *1. Three months later (and after the Probation Officer was given a new and updated address for the brother) the cops searched the brother’s old original residence without a warrant. Id. at *2. The cops discovered Ped, meth pipe in hand, and went on to extract Ped’s confession to the guns found at the house. Id.
  The suppression issue was whether these sloppy cops had probable cause to believe the brother still lived at Ped’s house, when they relied upon three-month old residence info and when they didn’t bother to learn the new and correct address given to the P.O. Id. at *3.
  “Meh - good enough for government work,” is the gist of the disappointing Fourth Amendment holding: “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials.” Id. at *3.
  Ped, unfortunately, is an important – albeit fact-bound – decision on probable cause and parole searches of third-party residences. It merits a close read for parole-search cases.
For Further Reading: We defense attorneys review our clients’ priors. Turns out we should be checking cops’ priors as well. In a fascinating piece, the East Bay Times reveals the number of cops with “dubious backgrounds” in the McFarland Police Department. See article here.
  Want to see if a cop in your case has a conviction? This article has a link to a convicted-cop database, that you can use to run hundreds of current and former California law enforcement officers who were convicted of a crime since 2008. 

  With our Federal courthouse transforming into the Northern branch office of San Francisco’s Hall of Justice, see article here, this convicted-cop database is of particular interest to the NorCal federal defense bar.

Image of the Honorable Judge Eric Miller from

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


Labels: , , , , ,

Friday, November 15, 2019

1. US v. Dailey, No. 18-10134 (11-4-19)(Bea w/Gould & Friedland). The 9th dismissed an appeal challenging a probation condition. The defendant pled to a Travel Act offense of transporting a minor for the purpose of prostitution. The court, as a condition of probation, required registration as a sex offender. The 9th found this was not an illegal sentence, as the residual clause of SORNA was non-categorical. Moreover, the defendant admitted why and for what purpose she was transporting the minor.

The decision is here:

2.  US v. Norris, No. 17-10354 (11-4-19)(Rawlinson w/Schroeder & O’Scannlain).The 9th concluded no 4th amendment violation took place when the police intercepted a wireless tracking program. The interception was outside the defendant’s house. The defendant though had connected to a third party’s router without authorization.  Thus, he had no Katz expectation of privacy.

The decision is here:

Sunday, November 10, 2019

Case o' The Week: Freeloaders Forfeit Fourth - Norris, the internet, and curtilage

  Internet moochers get no Fourth love.

United States v. Norris, 2019 WL 5688802 (9th Cir. Nov. 4, 2019), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges Schroeder and O’Scannlain. Hard-fought appeal by former ED Cal AFPD John Balazs.  

Facts: The FBI investigated the distribution of child porn through a file sharing network. Id. at *1. The agent couldn’t determine the physical address for the porn’s source: “boysforboys1.” Id. A search of an apartment linked to this address revealed no evidence of child porn. Id.
  Using “Moocherhunter” software, the agents traced the suspected signal that – without permission -- logged onto the apartment’s router. The signal strength of the child-porn addresses suggested they originated in a different nearby apartment. Id. at *2. The agents got a search warrant for this second apartment and found child porn. Norris was charged. Id. at *3.
  Norris moved to suppress, “alleging that use of the Moocherhunter software amounted to a warrantless search in violation of the Fourth Amendment.” Id. The court relied on Jardines, and concluded that because there was no encroachment on Norris’s curtilage there was not a Fourth Amendment violation. Id. The court “concluded that Norris lacked a subjective, reasonable expectation of privacy, because he connected to a third-party’s router without authorization and assumed the risk that his signal would reveal the MAC address to authorities.” Id.
  Norris was convicted after trial and appealed.

Issue(s): “[ ] Norris seeks to have us apply the protections of the Fourth Amendment to the use of a wireless tracking program to identify the address of his wireless device.” Id. at *1.

Held: “[W]e conclude that no Fourth Amendment search occurred in the course of identifying Norris’s wireless device . . . .” Id. 
  “Although physically located in his home, Norris’s wireless signal reached outside his residence to connect to the wireless router in Apartment 242. The FBI captured Norris’s wireless signal strength outside Norris’s residence to determine the source of the signal. The FBI’s actions may be likened to locating the source of loud music by standing and listening in the common area of an apartment complex. Although the music is produced within the apartment, the sound carries outside the apartment. Just as no physical intrusion ‘on constitutionally protected areas’ would be required to determine the source of the loud music, no physical intrusion into Norris’s residence was required to determine the strength of the wireless signal emanating from the devices in his apartment . . . . We conclude that no subjective expectation of privacy exists under these circumstances, where information is openly available to third parties.Id. at *4.

Of Note: What about Kyllo? Recall that in that case SCOTUS rejected the cops’ use of thermal-imaging technology to hunt for heat consistent with weed-grow lights. Id. at *5. Isn’t that analogous to the sniffing of Norris’s internet signal here? 
  Not according to the Ninth. 
  “We agree with the district court that Kyllo does not dictate the conclusion that a Fourth Amendment search occurred in this case.” Id. “Unlike in Kyllo, where the defendant confined his illegal activities to the interior of his home and relied on the privacy protections of the home to shield these activities from public observation, Norris’s activities reached beyond the confines of his home, thereby negating any expectation of privacy.” Id.
   Judge Rawlinson is equally unpersuaded that Norris had a reasonable expectation of privacy in the signal: “it strains credulity to suggest that society would be prepared to recognize an expectation of privacy as reasonable when an individual gains access to the internet through the unauthorized use of a third-party’s password-protected router located outside his residence.” Id. at *6.

How to Use: What if, like the Big Bang Theory’s “Penny,” Norris was an authorized internet moocher? The Norris opinion doesn’t get that far, id. at *5, so there may be a sliver of “reasonable expectation” remaining in that fact pattern.
For Further Reading: Norris is another round Fourth Amendment peg in a square technology hole. A better approach is “digital curtilage.” 
  For an interesting piece discussing that idea, see Professor Andrew Ferguson, The Internet of Things and the Fourth Amendment of Effects, available here.

Image of Penny from “Big Bang Theory” from

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


Labels: , , , , ,

Saturday, November 02, 2019

Case o' The Week: Silence is Golden (Opportunity for AUSA) -- Garcia-Morales and Doyle Comments on Post-Miranda Silence

  “The prosecution's reference to Garcia's silence as evidence of his guilt in this context was a Doyle violation, plain and simple.” 
The Hon. Judge Carlos Bea
 United States v. Garcia-Morales, 2019 WL 5608832, at *5. (9th Cir. Oct. 31, 2019) (Bea, J., dissenting), decision available here.

Players: Decision by DJ Settle, joined by Judge Rawlinson.
  Compelling dissent by Judge Carlos Bea.
  Hard fought appeal by AFD Sara Weinman, Federal Defenders of San Diego, Inc.   

Facts: Garcia was charged with attempted transport of aliens, after he was arrested near the border where three undocumented aliens had been found. Id. at *2. He was Mirandized, waived, and answered videotaped questions. Id.
  Garcia admitted a prior attempt to transport aliens, and that he had been offered a job transporting aliens by a smuggler on the morning of his arrest. Id. He contended, however, that on the day of arrest, he was just scoping out the area. When asked the names of his smuggling contacts, Garcia said he wasn’t feeling “cool with that camera.” Id. The agent offered to turn off the camera later: Garcia nodded his head “yes” twice. Id. The interrogation continued.
  Later, at trial, in the closing argument the AUSA argued that Garcia’s “evasiveness” about other people involved contradicted other statements Garcia had made. Id. The defense did not object.
  Garcia was convicted, and appealed.  

Issue(s): “Garcia alleges that the prosecution committed misconduct by introducing evidence of, and commenting on, his post-arrest silence at trial.” Id. at *1.
  “Because Garcia argues that he selectively invoked the right to silence on the topic of his co-conspirators, he contends that the prosecution's eliciting of testimony and argument about this topic was improper and asks us to remand for a new trial.” Id. at *2.  

Held: “Upon review of the record, we conclude that Garcia was not silent in response to Agent Kahl's questioning on the topic of his co-conspirators. This conclusion is driven by the fact that the exchange between Agent Kahl and Garcia began with Garcia voicing discomfort with video recording and concluded with Garcia agreeing to speak about his coconspirators. At most, the exchange demonstrated that Garcia did not want to discuss his co-conspirators on video tape but was willing to continue talking about the subject later. On the fact-specific record before us, that brief exchange does not amount to the invocation of silence under either standard articulated above.” Id. at *3.
  “Because the prosecution tied its arguments characterizing Garcia as evasive to the evidence and given our holding that Garcia was not silent, the prosecution did not commit misconduct by characterizing him as being evasive about the other people involved in alien smuggling. Rather, the prosecution properly relied on admissible evidence to rebut the theory that Garcia had always intended to turn aliens he picked up over to border patrol.” Id.

Of Note: In a compelling dissent, Judge Bea explains “the prosecution argued in its closing statement that Garcia must be guilty because he was ‘evasive about other people who are involved,’ asking ‘Why does he want the recording turned off? . . . . It wasn't because he had a plan the entire time to turn these people over.’ This is exactly the type of penalty for exercising one's Fifth Amendment rights that Doyle prohibits.” Id. at *4 (Bea, J., dissenting) (emphasis in original).
  “The prosecution's reference to Garcia's silence as evidence of his guilt in this context was a Doyle violation, plain and simple.” Id.
  Judge Bea correctly, and forcefully, argues that the prosecutor’s reliance on post-Miranda silence rose to the level of plain error, meriting reversal. Garcia-Morales is a troubling break from Ninth authority prohibiting comments on silence. Id. 
  This great Judge Bea dissent is, hopefully, the seed of a future en banc flower.

How to Use: The majority decision oddly relies upon an agent’s reference to further interrogation discussions as a reason to find that Garcia did not remain silent (further discussions that never happened, by the way). Id. at *3. Use that quirky fact to limit this unfortunate holding in future Doyle cases.
For Further Reading: Task-Force Feds flaunt local and state cop rules. So reports this fascinating Marshall Project article, available here

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


Labels: , , , ,

Friday, November 01, 2019

US v. Garcia-Morales, No. 17-50323 (10-31-19)(Settle w/Rawlinson; Bea dissenting). The 9th affirms an attempted smuggling conviction despite the prosecutor alleged violation of Doyle v. Ohio (commenting on post-arrest silence).  The defendant was picked up close to the border, by a wilderness preserve. He waived Miranda, and said he was only scoping out the area. The agents pressed him on his co-conspirators. The defendant said he “wasn’t cool” with naming them on camera but could talk about it later. Off camera, he later invoked on the issue.  In his closing the prosecutor argued “evasiveness.” There was no objection.

The majority finds no Doyle violation. The majority concludes that the defendant had not invoked. The “evasiveness” argued was supported by the evidence, and did not go to silence. It undermined the defendant’s claim that he would have turned in undocumented individuals if he came across them.
Dissenting, Bea agreed that the defendant’s hesitancy to name names was not silence. The misconduct, and plain error, was the prosecutor characterizing the refusal to name names as “evasiveness” and repeatedly as “silence” and that silence implied guilty mens rea.  Thus, “silence” was used to prove guilt, and was a Doyle violation.

Note: The lack of objection made this a plain error violation. This is another example of the need to object.
Tough loss for Sarah Weinman, Deputy Fed Def of San Diego.

The decision is here: