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


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