Sunday, January 26, 2020

Case o' The Week: Red Flags for the SCOTUS Bull - Cooley and En Banc Order Opinions

 Much Ado about Nothing, or a Comedy of Errors?
United States v. Cooley, 2020 WL 399390 (9th Cir. Jan. 24, 2020) (Ord. denying reh’g en banc), order available here.

 Players: Judges Berzon and Hurwitz, concurring in the denial of rehearing en banc. Judges Collins, Bea, Bennett, and Bress dissent.  

Hon. Judge Marsha Berzon
Hon. Judge Daniel Collins
Facts: In an opinion filed in 2019, a three-judge panel considered a district court’s grant of a motion to suppress. United States v. Cooley, 919 F.3d 1135 (9th Cir. 2019). The Court unanimously held that an officer who made an arrest in Indian Country acted “outside of his jurisdiction as a tribal officer when he detained . . . Cooley, a non-Indian, and searched his vehicle without first making any attempt to determine whether Cooley was in fact an Indian.” Id. at 1141. In June of 2019, the government sought rehearing en banc.  

Issue(s): Should the Ninth Circuit rehear this case en banc?

Held: No. United States. Cooley, 2020 WL 399390 (9th Cir. Jan. 2020) (Ord.), at *1.

Of Note: Cooley is a defense win, and welcome Fourth Amendment (ish) protection. With all respect, however, it isn’t the case of the century. It certainly is not a decision with broad application: it is primarily an opinion of interest to Ninth Defenders with non-Indian clients who are searched in Indian Country by tribal officers who are not cross-designated by federal magistrates. The Cooley e.b. order is notable not for the outcome of the case, but for the heated opinions around the order denying rehearing en banc.
  First, Judges Berzon and Hurwitz concurred in the denial of rehearing en banc. They characterize the dissent from the order denying rehearing en banc as “an outlier:” “Even within the questionable genre of dissents from denial of rehearing en banc, see Martin v. City of Boise, 920 F.3d 584, 588 (9th Cir. 2019) (Berzon, J., concurring in denial of rehearing en banc), Judge Collins’s dissent to the denial of rehearing . . . is an outlier. It misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion.” Id. at *1 (Berzon, J. concurring in the denial of rehearing en banc).
   Judge Collins, by contrast, has a different view, in his dissent from the denial of rehearing en banc: “The panel’s extraordinary decision in this case directly contravenes long-established Ninth Circuit and Supreme Court precedent, disregards contrary authority from other state and federal appellate courts, and threatens to seriously undermine the ability of Indian tribes to ensure public safety for the hundreds of thousands of persons who live on reservations within the Ninth Circuit. I respectfully dissent from our failure to rehear this case en banc.” Id. at *5 (Collins, J., dissenting from denial of rehearing en banc). Judge Collins characterizes the concurrence of Judges Berzon and Hurwitz as a “belated” attempt to defend a “stealth overruling” of Ninth Circuit authority. Id. at *6. The majority decision, contends Judge Collins, is “plagued” by a “critical legal error,” is “deeply flawed,” and he quips about one legal issue that “only thing that is astonishing is that the concurrence finds this astonishing.” Id. at *19 & n.10.
  Quite the fight, ‘twixt left and right.

How to Use: An interesting article summarizes the impact thus far of President Trump’s appointees on the Circuit courts. See Law360 article here
   The piece ends with good advice: “There’s a lesson there for lawyers as well: Know your audience. Trump’s appointees will only grow in numbers, and influence, as his presidency progresses. And as recent cases have demonstrated, it pays to be in tune with how they think. ‘Insofar as there is fervent debate on the academic right about a particular question that’s relevant to your case, you probably want to be aware of it because there’s a good chance these judges are going to be aware of it,’ Adler said.” Id.
  Consider Cooley and these ten new Ninth jurists – maybe some Second Amendment authority, or administrative law regs, or EPA rulings with criminal ramifications, deserve another look?
For Further Reading: All 29 Ninth Circuit judicial spots are filled –while 26 await in the Ninth’s district courts. For a tally of where appointments stand, see the Ninth Circuit overview, here

Image of Judge Collins from

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


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Thursday, January 23, 2020

Cook v. Kernan, No. 17-17257 (1-21-20)(Callahan w/N. Smith; concurrence by Callahan; dissent by Murguia). AEDPA deference compels the affirmance of this habeas denial. Convicted of three first-degree murders, and having his death sentence commuted to life under Atkins, the petitioner argued his confessions were involuntary and taken in violation of Miranda. The petitioner had mental deficiencies and met the Atkins standard. In affirming the denial of relief, the majority held that, under AEDPA deference, the California Supreme Court’s decision was not unreasonable. Even the fact that it was a summary denial still required deference. 

Concurring, Callahan wrote that even if there was error, and the state reached the issue of prejudice, she would agree that it was harmless.

Dissenting, Murguia would find that the state supreme court’s decision was unreasonable as to the Miranda waiver and prejudice.

The decision is here:


Saturday, January 18, 2020

Case o' The Week: Attempted Robbery of Absent Victims? "Substantial" Enough for Ninth - Soto-Barraza and Substantial Steps for Attempted Robberies

Which victim triggers the lowest level of proof, to sustain a federal conviction for attempted robbery?

  A.  A federally-insured bank;
  B.  An armored car, or;
  C.  An international drug smuggler?

United States v. Soto-Barraza, 2020 WL 253560 (9th Cir. Jan. 17, 2020), decision available here.

Agent Terry Memorial, in Mesquite Seep Arizona

Players: Decision by Judge Ikuta, joined by Judge Hurwitz and DJ McShane.

Facts: Border Patrol agents were searching for armed gangs, who preyed on drug smugglers bringing pot across the border. Id. at *1. The agents detected armed suspects (but no victim drug smugglers were around). A gun battle ensued: one agent was killed. Id. 
  Recovered AK-47-style guns, ammo, and backpacks were associated by DNA and prints to Souto-Barraza and Sanchez-Meza. Id. 
  The men were charged with the murder of the agent, Hobbs Act conspiracy to interfere with commerce by robbery, attempted interference with commerce by robbery, assault on the Border Patrol Officers, and carrying and discharging a firearm in furtherance of a crime of violence. Id. at *2.
   Souto-Barraza and Sanchez-Meza were convicted at a trial, and sentenced to life. Id. at *3.

Issue(s): “The defendants argue that there was insufficient evidence to establish they had taken a substantial step [for attempted robbery] because there was no evidence that marijuana smugglers were actually present in their immediate vicinity or that a robbery was imminent . . .  [D]efendants rely primarily on cases considering whether defendants had taken a substantial step toward robbing a store or bank.” Id. at *8.

Held:But here the defendants were targeting individual victims, not a building. In these circumstances, courts place greater weight on other factors, such as whether the defendants are lying in wait for the intended victim, . . . or have begun traveling to the location where the victims may be found. . . . Because the central inquiry is whether the evidence is sufficient to demonstrate that the defendants will carry through with the offense unless interrupted, there is no requirement that the actions constituting the attempt have a particular geographic proximity to the object of the substantive offense. . . . . Nor need a criminal act be imminent. . . . . Because a reasonable jury could have concluded that Soto- Barraza and Sanchez-Meza did all they could to prepare to rob marijuana smugglers they would encounter and would have followed through with the crime had the [Border Patrol] agents not intervened, the district court correctly denied defendants’ motion for judgment of acquittal.” Id. (internal citations and quotations omitted)

Of Note: In this opinion Judge Ikuta also rejects an interesting extradition argument about “dual criminality.” Id. at *4. 
  Much of the decision, however, discusses and distinguishes prior authority on attempted robbery. Id. at *6. Judge Ikuta focuses on the “substantial step” analysis, and distances this case from attempted robbery cases where a building was targeted. Id. at *7. The Ninth appears to create two lines of analysis: one for attempted robberies of banks (or armored cars), and a second for attempted robbery of individuals. Id. at *8. 
  (Why those two fact patterns produce different standards isn’t entirely clear). 
  Yet another quirk in the quirky law of “attempt."

How to Use: The defense did earn one reversal in this case. The government conceded that conspiracy to commit Hobbs Act robbery is not a crime of violence. Id. at 8 & n.8. The Ninth thus reversed the convictions for “carrying and discharging a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(i), (iii).” Id. at 2 & n.2.
  Judge Ikuta curiously buried this reversal in a mem dispo referenced in a footnote. Id. at *8 & n.8. Nonetheless, snag the government’s concession and the Ninth’s holding for future use.
For Further Reading: What was the source of at least two of the assault weapons recovered from the scene of this Border Patrol Agent’s murder? 
  The ATF! 
  In “Operation Fast and Furious,” ATF Agents in Phoenix let suspects walk away with weapons – 2,000 guns, in all. Two of these ATF “walk-away” guns were carried by the crew in the gun battle in this this case. For a remarkable account of this tragic operation, see article here

Image of memorial to Border Patrol Agent Brian Terry from

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


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Tuesday, January 14, 2020

US v. Mayea-Pulido, No. 18-50223 (1-3-20)(Friedland w/M. Smith & Bastian). This is an equal protection challenge as to derivative citizenship.  The defendant was convicted of illegal reentry under 1326, but he argued that 8 U.S.C. § 1432(a), by applying different requirements for derivative citizenship depending on the parent’s marital status versus their being legally separated, violated equal protection.

Previously, applying rational basis review, the 9th had rejected the claim under Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir 2003). However, the Supreme Court in Sessions v. Morales-Santana, 137 S. Ct 1678 (2017), had rejected the categorical assertion that immigration statutes must always be given rational basis review. Heightened scrutiny may be required if the situation—between parents based on gender—required.

Ah, this panel decided, Barthelemy’s blanket use of rational basis may be irreconcilable with Morales-Santana, but that the statute is still given rational basis. The 9th concluded that heightened scrutiny is not required in all parental distinction cases. Here, rational basis is appropriate because a group or gender or status is not singled out or put in a suspect classification. Legal separation or sole custody does not reflect historical discrimination.  The reason is that Congress acted rationally in distinguishing between requiring both parents to be naturalized for derivative citizenship but only requiring one parent to be naturalized so long as the parents were legally separated, meaning that the naturalized citizen had sole custody. This rational basis is to protect the rights of the non-naturalized parent who may still have custody.

Another valiant hard fought appeal by Kara Hartzler, Fed Defenders of San Diego.

The decision is here:


Sunday, January 12, 2020

Case o' The Week: Ninth Chokes on Strangling Challenge - Harrington and Double Counting in Assault Guideline

Convicted for strangling, higher guideline for strangling -- and double-counting challenge strangled, too.

  United States v. Harrington, 2019 WL 7161279 (9th Cir. Dec. 24, 2019), decision available here.

Players: Decision by Judge W. Fletcher, joined by Judges Callahan and Christen. Hard-fought appeal by AFD Jeremy Sporn, Federal Defenders of Eastern Washington and Idaho, Inc.  

Facts: Harrington strangled his spouse in Indian Country, and pleaded guilty to assault in violation of 18 USC § 113(a)(8). Id. at *1. (This statute criminalizes strangling a spouse within specified jurisdictions). At sentencing, the government sought three additional levels under USSG § 2A2.2(b)(4), because the offense involved strangling a spouse. Id. Over defense objection the court imposed the enhancement.

Issue(s): “Harrington contends that the district court impermissibly double counted when it applied a three-level enhancement for strangling a spouse under § 2A2.2(b)(4) of the U.S. Sentencing Guidelines (“Guidelines”). He contends that because his conviction was for strangling a spouse, that conduct was already accounted for in the base offense level of § 2A2.2(a).” Id.

Held:We affirm the district court.” Id. at *1. “Harrington contends that the district court erred in applying the three-level adjustment for strangling a spouse in subsection (b)(4), on the ground that the base offense level in subsection (a) has already taken that conduct into account. We disagree. A plain-text reading of the Guideline indicates that the base offense level contemplated by § 2A2.2(a) does not necessarily capture the conduct detailed in the ‘specific offense characteristics.’” Id. at *3.

Of Note: The acid test for double-counting is whether it is possible to come within the guideline enhancement, without that conduct having been an element for the offense of conviction. See id. at *3 (quoting United States v. Reese, 2 F.3d 870 (9th Cir. 1993)). Here, “strangling” was an element of the federal offense. It was also one (of several) triggers for the specific offense enhancement.
  Judge Fletcher explains, however, that it is possible to trigger this particular base offense level enhancement without a victim being strangled. Id. at *3. Because the conduct tied to the element of conviction – strangling – was not necessarily required for this guideline enhancement, the Ninth finds no double counting. 
  Disappointing result, but the Ninth’s old Reese test ultimately controls the double counting analysis.

How to Use: In Harrington, there was a good-faith legal dispute over a particular guideline enhancement. Notably, the USAO for the ED of Washington was not afraid to defend its legal position in the Ninth. The government allowed Mr. Harrington to enter a conditional plea, and take up a sentence imposed that was over 78 months. See id. at *2. Harrington is a good reminder that a conditional plea needn’t be an all-or-nothing proposition: they aren’t just to preserve appeals for suppression motions. Give Harrington to your local AFPD: other USAO’s should emulate ED WA’s admirable courage in allowing all types of conditional plea agreements.

For Further Reading: What a three days, in San Francisco.
District Attorney Chesa Boudin
  On January 8, 2020, former public defender Chesa Boudin swore in as the District Attorney for the City of San Francisco. See article here. Among other campaign promises, Mr. Boudin has pledged to eliminate gang enhancements. See article here 
  The day after Mr. Boudin swore in, US Attorney David Anderson promptly held a press conference and announced federal capital charges for alleged gang members. See article here
The Hon. US Attorney David Anderson
  The day after Mr. Anderson's press conference, on January 10th, Mr. Boudin fired the managing attorney of the D.A.’s gang unit. See article here.
  If you’re interested in Federalism, the proper relative roles of federal and city governments in local crime enforcement, and the power struggles over policy decision-making on criminal law issues, spend three days in the City by the Bay.

Image of the 2018 Federal Sentencing Guidelines from

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


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Sunday, January 05, 2020

Case o' The Week: Marriage is a Dangerous Thing - Mayea-Pulido and Equal Protection Challenges to Immigration Statutes

  Defendant guilty, because parents remained married.
United States v. Mayea-Pulido, 2020 WL 35963 (9th Cir. Jan. 3, 2020), decision available here.

Players: Decision by Judge Friedland, joined by Judge M. Smith and DJ Bastian. 
  Hard-fought appeal by AFD Kara Hartzler, Fed. Defenders of San Diego, Inc.

Facts: Mayea-Pulido, the son of unmarried Mexican nationals, was born in Mexico. Id. at *2. He and his parents moved to the U.S. shortly after his birth. His parents married, and his father became a naturalized U.S. citizen. 
   Mayea became a lawful permanent resident (“LPR”), but never applied for citizenship. His mother, who remained married to his father, also never applied for citizenship. Id. 
  At the time Mayea-Pulido turned 18, the immigration statute conferred automatic citizenship if both of the child’s parents had previously naturalized. Id. There were exceptions: for example, in the event of separation one naturalized parent sufficed. Mayea did not meet any of these exceptions, and he remained a non-citizen. Id. 
  As he grew older, Mayea-Pulido was convicted of crimes, his LPR status was revoked, and he was removed and reentered multiple times. Ultimately he was charged with a § 1326 offense and went to trial. Id. Mayea-Pulido moved for judgment of acquittal, arguing that the immigration statute was unconstitutional. Id. at *3. He argued that he would have been a citizen if his married parents had been legally separated (where he would have obtained citizenship from his father). Id. 
  His motion was denied, he was convicted, and appealed. Id.

Issue(s): “Luis Mayea-Pulido challenges his conviction for illegal reentry, which he contends is invalid because he is not an ‘alien’ who could be guilty of that crime. Mayea argues that he should have automatically become a . . . citizen as a result of the naturalization of one of his parents prior to the reentry in question. But because his parents were married, and the derivative citizenship statute at 8 U.S.C. § 1432(a) (1996) required married parents to both naturalize to confer citizenship to their child, he did not become a citizen. Mayea argues that, by making his parents’ marital status a factor in the derivative citizenship determination, § 1432(a) violates the Constitution’s equal protection guarantee.” Id. at *1.
  “In Mayea’s telling, this statutory scheme impermissibly discriminates on the basis of parental marital status by allowing the children of legally separated parents to become U.S. citizens more easily than the children of non-separated parents.” Id. at *4. 1

Held:We disagree and affirm Mayea’s conviction.” Id. at *1.

Of Note: The Ninth previously rejected a similar challenge. See Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003). Id. at *4. Why another opinion now? Because AFD Kara Hartzler cleverly renewed the attack after Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017). Id. In Morales-Santana, SCOTUS rejected a statutory scheme that imposed different requirements on unwed mothers, and unwed fathers, for conferring citizenship of a child born abroad. Id. at *4. Because the statute differentiated based on gender, the Court applied heightened scrutiny and found an equal protection violation. Id. at *5.
  The Ninth, unfortunately, was unpersuaded: applying rational basis review to this statute, it rejected this equal protection challenge. Id. at *8.

How to Use: In Barthelemy, immigration statutes were given deference and subject to mere rational basis review. In Mayea-Pulido, Judge Friedland agrees that approach now longer flies: immigration statutes can now be subject to heightened scrutiny – a useful opening for future EP challenges. Id. at *5-*6.
For Further Reading: Remember the remarkable “Safe Schoolslitigation? San Francisco has finally agreed to settle civil claims brought by the victims of these race-based arrests, made in San Francisco's Tenderloin. See, San Francisco Settles Suit Over Racially Biased Drug Arrests for $225k, available here
  Interesting that this civil case settles just as waves of Hondurans are now targeted for small-scale drug scales in the new “Federal Initiative for the Tenderloin.” See press release on “FIT” here

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


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