Friday, February 28, 2020

Case o' The Week: Ninth Finds Arpaio Lacks Convictions -- Vacatur and the Musingwear rule

Every man in this picture has been found guilty of a crime

(but only one has not been "convicted.)"

United States v. Joseph Arpaio, 2020 WL 946065 (9th Cir. Feb. 27, 2020), decision available here.

Players: Opinion by Judge Bybee, joined by Judges N.R. Smith and Collins.  

Facts: Arizona Sheriff Joseph Arpaio was found guilty of criminal contempt after a bench trial. Id. at *2. [Note: Arpiao was “found guilty” – not “convicted!”] 
  Before he was sentenced, Arpaio was pardoned by President Trump. Id. Arpaio’s motion for vacatur of the verdict was denied by the district court. Id. Arpaio appealed both the verdict of guilt, and the denial of vacatur. Id. at *3. 
  When DOJ refused to oppose Arpaio’s appellate efforts, the Ninth appointed a special prosecutor. See generally blog entry here 
   Among other challenges on appeal, Arpaio argued in the Ninth that the “Musingwear rule” required vacatur. (“[T]he ‘Munsingwear rule,”. . . provides for vacatur in cases mooted while on appeal.” Id. at *4.

Issue(s): “First, Arpaio argues that because his pardon mooted any challenge to the court’s verdict, that verdict must be vacated, and it was an abuse of discretion for the district court to refuse to do so. At oral argument, however, Arpaio clarified that, if we agree that his challenges to the findings of guilt are moot because they will have no future preclusive effects, then he seeks no further relief beyond that determination.” Id. at *3.

Held:Arpaio’s threshold claim is that the district court abused its discretion by refusing to vacate the district court’s verdict under Munsingwear. Arpaio urges us to correct the district court’s legal error and vacate the verdict. See 28 U.S.C. § 2106. We disagree with Arpaio, but follow a slightly different path from the district court. We hold that, because the mootness issue here arises from the fact that the district court’s findings of guilt can be given no future preclusive effect, the Munsingwear rule does not apply, and Arpaio is not entitled to vacatur. We thus affirm the judgment of the district court.Id. at *3.

Of Note: The Court’s decision hinges on the word, conviction. Judge Bybee explains that when there was a finding of guilt, Arpaio was not actually subject to a final judgement of conviction. In reality, a “[f]inal judgement in a criminal case means sentence. The sentence is the judgement.” Id. at *4 (citation omitted). 
  Because there was no final judgement of conviction, the Musingwear rule  did not apply, and the denial of Arpaio’s vacatur motion stood. (Presumably, had the President waited to pardon until after sentencing, there might have been a different outcome on this appeal . . . )

How to Use: When your client is offered a Presidential pardon, remember to ask the White House to wait until there is a “final judgement of conviction” after sentencing.
For Further Reading: Have you wondered how the addition of ten jurists appointed by President Trump will affect the Ninth Circuit? 

   For a fascinating, inside-baseball account on how the new crew are changing the old ways, see Maura Dolan, “Trump has flipped the 9th Circuit — and some new judges are causing a ‘shock wave’”, Los Angeles Times, available here.
  Of particular interest is Judge M. Smith’s insight on the combined impact of the senior judges: “Of the senior judges who will be deciding cases on ‘merits’ panels — reading briefs and issuing rulings — 10 are Republicans and only three are Democratic appointees, Smith said. ‘You will see a sea change in the 9th Circuit on day-to-day decisions,’ Smith predicted.” Id.

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


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Wednesday, February 26, 2020

1) Allen v. Ives, No. 18-35001 (2-24-20)(Fletcher w/Christen; dissent by Callahan). Reversing a dismissal for lack of jurisdiction, the majority held that a career offender under the old mandatory guidelines may be “actually innocent” under 28 U.S.C. § 2241 if his state conviction for sale of marijuana is found not to be a “controlled substance offense” under Taylor, Deschamps, and Mathis. Even though the petitioner got relief under the First Step Act, his petition is not moot because supervised release can be reduced.

Callahan dissented, arguing that the 2255(e) escape hatch is foreclosed by prior precedent.

Congrats to AFPD Elizabeth Daily, FPD Ore (Portland).

The decision is here:

(2) Ross v. Williams, No. 16-16533 (2-24-20)(en banc)(Friedland; dissent by Ikuta). This is a “related back” issue under habeas.  The 9th holds, in essence, that Fed R Civ Pro 10(c) is satisfied when a pro se petitioner sets out specific grounds for relief in an attached court decision. The amended and original petitions share a common core of operative set of facts.

The dissent argues that the standard is unworkable broad, too complex, inconsistent with habeas pleadings, AEDPA’s statute of limitations, and even Supreme Court precedent.

Congrats to AFPD Jon Kirshbaum, Nev FPD (Las Vegas). Amicus support provided by David Porter and Gabriel Chin, NACDL and Aoki Center for Critical Race and Nation Studies. 

The decision is here:


US v. Gagarin, No. 18-10026 (2-13-2020)(Gould w/Bea; concurrence by Friedland). Alert: Circuit inflict! For “aggravated identity theft,” the 9th and the 7th differ in their interpretation of the identity of “another person.”

The 9th affirms the convictions here. In this insurance fraud case, involving submitting fraudulent insurance policies, the 9th finds the defendant “used” a means of identification in forging her cousin’s signature. This was “without lawful authority” despite the cousin’s agreeing to the use of her identity.  Under the 9th’s precedent, the use of an “actual person’s” identity constitutes aggravated identity theft. The 7th Circuit takes a more restrictive approach, requiring no consent. 

The majority opinion criticizes the approach of an en banc 7th Circuit. The concurrence, by Friedland, would be more generous. She agrees the 9th is bound by its own precedent.

The 9th also found no error in imposing a sentencing enhancement for being a manager or supervisor. It also upheld restitution.

Hard fought appeal by Carmen Smarandoiu and Candis Mitchell of Cal N (San Francisco). 

The decision is here:

Sunday, February 23, 2020

Case o' The Week: A Grand is "Substantial" (in the Ninth) - George and "Substantial financial hardship" guideline enhancement

The Hon. Judge Eric D. Miller

“‘I stole only from those who were already poor’ is not often advanced as an argument in mitigation, and we find it unpersuasive.”
   (Guess how the remaining sentencing issues panned out).
United States v. George, 2020 WL 547383, *4 (9th Cir. Feb. 4, 2020), decision available here.

Players: Decision by Judge Miller, joined by Judges Owens and Ryan Nelson. Hard-fought appeal by former AFD Ben Coleman.  

Facts: Christopher George was found guilty of fraud offenses after trial. His companies “defrauded nearly 5,000 homeowners out of millions of dollars.” Id. at *1. George’s original twenty-year sentence was reversed by Judges Reinhardt, W. Fletcher and Owens. 713 Fed.Appx. 704 (9th Cir. 2018). 
  On remand the district court and government agreed that newer (2015) guidelines should be used. Id. The court then reduced George’s sentence “by just five months, to 235 months.” Id. George appealed again: the case went to the new panel of Judges Miller, Owens and Ryan Nelson. Id.

Issue(s): “[George] focuses on the district court’s application of section 2B1.1(b) (2)(C) of the Guidelines, which provides for a six-level enhancement if the offense ‘resulted in substantial financial hardship to 25 or more victims.” U.S.S.G. § 2B1.1(b)(2)(C)(2016).’” Id. “George argues that the district court erred in finding that 25 or more victims suffered substantial financial hardship. Addressing that argument requires us to examine the meaning of ‘substantial financial hardship,’ a term we have not previously interpreted.” Id. at *2.

Held: “We conclude that section 2B1.1(b)(2) requires the sentencing court to determine whether the victims suffered a loss that was significant in light of their individual financial circumstances.” Id. at *2.
  “The notes reinforce the conclusion that our inquiry must consider how the loss affects the victim. For some victims, a loss of, say, $10,000 might not have any of the listed effects. For others, a much smaller loss might have such effects. The provision thus requires a focus on the victims’ individual circumstances, a focus that is consistent with the Sentencing Commission’s goal in amending section 2B1.1 in 2015 to ‘place greater emphasis on the extent of harm that particular victims suffer.’” Id. (internal quotations and citation omitted).

Of Note: Relying on the Ninth’s 1999 Merino decision (where a $32,000 cleanup was not substantial), George argued on appeal that the $1,000 to $3,000 fees lost by most victims was not “substantial” here. Judge Miller is unpersuaded. The district court found that these victims were on the brink of losing their homes because of mortgage non-payments. For these specific victims, a couple of thousand in fees paid to George’s (fraudulent) loan-modification company was “substantial” -- the district court did not clearly err. Id. at *3.
   Note that this is a whopping +6 offense level bump – a worrisome and expansive reading of “substantial” for fraud cases.    

How to Use: One has to squint hard to see the silver lining in this dark guideline cloud, but there’s a brief tort-ish analysis of interest towards the end of the opinion. The government argued that this enhancement did not require foreseeability – that is, the government argued that there was no requirement that the defendant could foresee that his actions would cause the victim’s “substantial” loss. 
  Judge Miller rejects the government's “but-for causation” argument, and presumes that the Commission meant to include the (higher) proximate cause requirement. Id. at *4. This is a useful interpretation for when the government stretches that causal link to the breaking point.
  (Unfortunately for Mr. George, the Ninth finds that both "but-for" causation and proximate cause were met here: his 19 ½-year sentence stands).
For Further Reading: Last week Mr. Roger Stone was sentenced to forty months in custody. His sentencing sparked two stories. First, DOJ’s dueling mitigation-memo revealed how much political meddling has undermined the independence of federal prosecutors. 
  The Stone sentencing also, however, illustrated just how unfairly punitive the sentencing guidelines are for all federal defendants. DOJ was right, to recommend a lower sentence than the whopping 7-9 years urged by the line AUSAs. Notably, Judge Amy Berman Jackson agreed with DOJ that the guidelines were too high -- even for this colorful defendant -- in a thoughtful and underreported sentencing decision. The Stone sentencing was a victory for judicial independence in sentencing, and yet another black eye for the increasingly irrelevant sentencing guidelines. 
   Who better to give us insights on both "Stone stories" than a former criminal-division AUSA, who is now a proud, hard-fighting member of a CJA panel?

N.D. Cal. CJA Panel Member Jeffrey Bornstein
 For a very thoughtful op-ed on both stories that weave through the Stone brouhaha, see “Trump’s Meddling is Wrong, but so are Overlong Sentences,” by stalwart NorCal CJA member Jeffrey Bornstein, available here

Image of the Honorable Judge Eric D. Miller from

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


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Sunday, February 16, 2020

Case o' The Week: Theft With No Steal Still Loses Appeal - Gagarin and Aggravated Identity Theft

  What is the the difference between identity theft, and identity fraud, in the Ninth?
   Five letters (and two years).
   United States v. Gagarin, 2020 WL 727761 (9th Cir. Feb. 13, 2020), decision available here.

 Players: Decision by Judge Gould, joined by Judge Bea. Concurrence by Judge Friedland. Hard fought appeal by ND Cal Appellate Chief Carmen Smarandoiu.  

Facts: Karen Gagarin participated in an insurance fraud conspiracy. Id. at *1. Gagarin’s cousin, Gilroy, asked Gagarin to secure a policy for her. Id. at *3. Gilroy testified that Gagarin instructed her to lie about her place of employment. Id. The application, apparently submitted by Gagarin, contained false information about employment, salary, and the nature of Gilroy’s relationship with the beneficiary. Id. There were several electronic signatures purporting to be by Gilroy. Id. at *2.
  Gagarin was convicted after trial of, among other counts, aggravated ID theft for the Gilroy application, in violation of 18 USC § 1028A. Id.

Issue(s): “Gagarin challenges the district court’s denial of her post-trial motion for a judgment of acquittal on the aggravated identity theft count . . . .” Id. at *1. “Gagarin claims that three essential elements were not satisfied, contending that (1) she did not ‘use’ a means of identification ‘during and in relation to’ the commission of wire fraud under the terms of the statute, (2) she did not act ‘without lawful authority,’ and (3) she did not use the means of identification of ‘another person.’” Id. at *4.

Held: “Gagarin attempt[ed] to pass herself off as her cousin through forgery and impersonation. . . . . [T]he use of another person’s means of identification makes a fraudulent claim for payment much harder to detect. . . and Gagarin’s forgery of her cousin’s signature did just that by obscuring her own role in the fraudulent application. Her use of Gilroy’s means of identification was thus central to the fraud and ‘furthered and facilitated’ its commission. [W] e hold that Gagarin’s actions constituted ‘use’ under the meaning of the aggravated identity theft statute.” Id. at *4 (internal quotations and citations omitted).
  “Gagarin also contends that she did not act ‘without lawful authority, a required element of aggravated identity theft. We disagree. . . . Whether a particular use was ‘itself illegal’ relates to the degree of connection between the use of the identity and the predicate felony. But the statute already contains language about the required nexus: the use must be ‘during and in relation to’ specified unlawful activity. Here, for the reasons stated above, Gagarin used Gilroy’s identity during and in relation to the wire fraud that Gagarin does not challenge occurred here. Gagarin has not shown that use ‘without lawful authority’ required more in this case.” Id. at *5.
  “[E] ven if Gagarin had Gilroy’s consent, we follow our circuit precedent to hold that Gagarin used the means of identification of ‘another person’ by using the identification of another ‘actual person.’ Id. at *6.

Of Note: Supervise an intern? That can earn you +3 offense levels for being a manager or supervisor. Id. at *7. The Ninth’s affirmance of this sentencing enhancement is another disappointing aspect of a frustrating opinion.

How to Use: In a thoughtful decision, the Seventh Circuit narrowed this expansive statute by limiting the term, “another person” to refer to a person who did not consent to the use of the means of identification.” See United States v. Spears, 729 F.3d 753, 758 (7thCir. 2013) (en banc). Gagarin author Judge Gould makes a point of criticizing the Spears analysis. Id. at *6.
  In a brief, but insightful, concurrence, Judge Friedland muses that the Seventh actually seems to have gotten it right. Gagarin, 2020 WL 727761, at *10 (Friedland, J., concurring).
  Read Judge Friedland’s concurrence and preserve the challenge when faced with a § 1028A charge that – like here – involved a person who consented to the use of an identity. Judge Friedland’s valid concerns may someday win the day.
Attorney General William Barr
For Further Reading: Turns out that we and DOJ agree: the Guidelines are far too harsh, line-AUSAs do seek far too much custody time, and reasonable sentences should involve far less incarceration.
   For one of many summaries of last week’s stunning Stone sentencing saga, see a NBC News article here
  Here’s hoping your federal client is the subject of a sympathetic White House Tweet, and a helpful sentencing-mitigation memo from Attorney General Barr.

Image of “You Can’t Steal Something That’s Been Given To You” from

Image of the Honorable Attorney General William Barr from 

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


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Sunday, February 09, 2020

Case o' The Week: Ninth Nixes Class Action - Chavez-Diaz and Appeals after Unconditional Pleas

The Honorable Judge Daniel Bress
  Class dismissed.
United States v. Chavez-Diaz, 2020 WL 562292 (9th Cir. Feb. 5, 2020), decision available here.

Players: Decision by Judge Bress, joined by Judges Collins and Bea. 
  Hard-fought appeal by AFD Kara Hartzler, Federal Defenders of San Diego.  

Facts: Chavez-Diaz was one of the thousands of aliens swept up in the new border policies in San Diego. Charged with illegal entry, he and other aliens were segregated into separate court calendars with mass arraignments, pleas, sentencings and immediate removals. Id. at *2. He and other Section 1325 defendants were shackled during proceedings, forced to meet with counsel in the presence of U.S. Marshals in a converted garage, and suffered delays in presentment due to their detention in Border Patrol stations. Id.
  Chavez-Diaz raised equal protection and due process objections to these procedures, pleaded guilty without a plea agreement, and during the plea expressly asserted that he was “not waiving his appellate rights. He is not.” Id.
  After being sentenced by the magistrate judge he appealed to the district court. The district court held that Chavez-Diaz had not waived his constitutional challenges, but rejected them on the merits. Id.

Issue(s): “Because Chavez-Diaz did not enter a conditional plea expressly preserving his right to appeal particular issues, the threshold question in this case is whether Chavez-Diaz’s unconditional guilty plea waived his ability to raise the constitutional claims that he now advances.” Id. at *1.

Held: “We hold that Chavez-Diaz waived his right to appeal these claims, and that the district court’s conclusion otherwise rested on a misinterpretation of Class v. United States, . . . 138 S. Ct. 798 . . . (2018). We therefore reverse and remand with instructions to dismiss the appeal.” Id.
  “Chavez-Diaz through his guilty plea plainly waived his right to appeal his equal protection and due process claims. . . [T]hese are challenges to the constitutionality of case-related government conduct that takes place before the plea is entered.” . . . Chavez-Diaz waived his ability to raise these claims by pleading guilty.” Id. at *4 (internal citations and quotations omitted).

Of Note: Wait – Chavez-Diaz expressly stated that he preserved his appeal when he pleaded guilty, but the Ninth slammed shut its courthouse doors and refused to tackle the merits. Can’t he now withdraw his guilty plea as involuntary?
  Judge Bress concludes that despite the express assertion of appellate rights at the plea, the plea was still knowing and voluntary. Id. at *6.

How to Use: The heart of this battle is the scope of the Mena-Blackledge exception, for appeals after unconditional pleas of guilt. That exception “allows for constitutionally-based appeals – despite an unconditional guilty plea – where the appeal, if successful, would mean that the government cannot prosecute the defendant at all.” Id. at *4 (emphasis in original). It was that exception upon which SCOTUS relied in Class, where it permitted a Second Amendment appeal to move forward despite an unconditional plea of guilt.
  Judge Bress distinguishes the Supreme’s Class decision from Chavez-Dias (and limits the Mena-Blackledge exception along the way). While both Class and Chavez-Diaz involved constitutional challenges that did not contest factual guilt, in Chavez-Diaz alone the defendant could still be retried even if his constitutional claims prevailed. That fact cost Chavez-Diaz his appeal, because he entered an unconditional plea of guilt below.
  In short, if you are hoping to raise a constitutional appeal after an unconditional plea of guilt, Chavez-Diaz merits a very close read.
For Further Reading: What appeals can one take, despite an unconditional plea of guilt? For an interesting overview of the circuit split on this question, see Class v. United States: an Imperfect Application of the Menna-Blackledge Doctrine, at 78 MDLR 382 (2019), available here.

Image of the Honorable Judge Daniel Bress from

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


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Wednesday, February 05, 2020

US v. Chavez-Diaz, No. 18-50391 (2-5-20)(Bress w/Bea & Collins). The 9th, in reversing a district court, makes clear that an unconditional guilty plea does not allow an appeal challenging equal protection and due process claims. The 9th notes an exception for when the appeal would foreclose prosecution entirely, such as for jurisdiction, double jeopardy, vindictive prosecution, or unconstitutional statutes.  In this case, however, the exception does not apply to challenges to 1325 “Streamline” procedures, separate calendars, and conditions.

The 9th also brushed aside counsel’s stating, at the plea colloquy, that the defendant preserved his appellate rights. The plea colloquy covered the factual basis.

The case is a good review of what is waived with a straight up plea. Here, an unconditional plea waived equal protection and due process claims that would not bar the govt from ever prosecuting.

Another righteous appeal by Kara Hartzler of the Fed Def of San Diego.

The decision is here:

US v. George, No. 18-50268 (2-4-20)(Miller w/Owens & R. Nelson). The 9th affirms sentences for fraud convictions. This was mortgage fraud. There were nearly 5000 homeowner victims. The 9th found the district court did not err in finding “substantial” financial hardship to more than 25 victims.

Although the losses for many were around $1000, for more than 25, this amount was substantial and had ramifications. The 9th stressed it depended on context and circumstances for what was substantial. The guidelines sentence was not an abuse of discretion.

Hard fought appeal by Ben Coleman.

The decision is here:

Sunday, February 02, 2020

Case o' The Week: Go Big, or Go Home - Collazo E.B. Order with questions, and (Potential) Drug Mens Rea requirements

  Looks like we’ve won the battle.

Collazo En Banc Court

  Do we now have a shot at the war?
United States v. Robert Collazo, Nos. 16-50509 (9th Cir. Jan. 29, 2020) (Ord.).

Players: New questions from the en banc panel: CJ Thomas, Judges W. Fletcher, Callahan, M. Smith, Ikuta, Nguyen, Watford, Hurwitz, Miller, Bade and Bress.
   Admirable en banc argument by SD Cal Defender alumnus Ben Coleman.  

Facts: Last September the Ninth ordered the Collazo case to be reheard en banc. See overview of this en banc order here
  The Ninth resolved to sort-out the jury instructions for the “mess” of drug conspiracy mens rea requirements. On January 13 the case was argued before the en banc court. See video of en banc argument here.  
  Roughly two weeks after oral argument, the Court issued the following questions:

Issue(s): 1. How do United States v. Feola, 420 U.S. 671 (1975), and its progeny in this Circuit . . . apply to the government’s burden of proving that a defendant is guilty of conspiracy under 21 U.S.C. § 846 for agreeing to commit an offense under § 841(a), (b)? The parties should address whether the requisite intent for conspiracy under § 846 is the same as the requisite intent for distributing a controlled substance under § 841(a), (b). The parties should also address whether the government has to prove beyond a reasonable doubt that the scope of the defendant’s agreement for a § 846 and § 841(a), (b) offense includes a particular drug type and quantity. In connection with these issues, does the rule in Feola apply only to jurisdictional elements, or does it also apply to elements such as drug type and quantity?
  2. Whether this Court should adopt Judge W. Fletcher’s position in United States v. Jefferson, 791 F.3d1013, 1019 (9th Cir. 2015) (W. Fletcher, J., concurring), as to both substantive drug offenses under § 841(a) and conspiracy offenses under § 846. See Jefferson, 791 F.3d at 1023 (“I do not believe the government can subject the defendant to escalating mandatory minimums . . . without proving that he knew which illegal drug he was importing.”).
  3. Whether this Court should adopt the approach reflected in United States v. Gentry, 941 F.3d 767, 785–86, 794 (5th Cir. 2019) (requiring that defendant “knew or reasonably should have known that the scope of the conspiracy involved at least 50 grams of a mixture containing a detectable amount of meth”). 
  United States v. Callazo,  No. 15-50509, Ord., Dkt. Entry 171 (emphasis and hyperlinks added).

Held: Awaiting the decision of the en banc court.

Of Note: Defense counsel Ben Coleman slugged away for his client in this argument. He was enthusiastic for Judge Fletcher’s much bigger goal of revising drug mens rea requirements, but appropriately focused on the narrow path to victory for his specific client: “conjunctive” jury instructions.
  Ben was unfailingly diplomatic, but –well, watch the oral argument at around 24:20. He can’t resist gently noting the irony that it was the Ninth itself that created this mess nearly twenty years ago in Buckland. In Buckland, the Ninth avoided an Apprendi attack by (questionably) re-characterizing drug type and quantity as “material facts” and not “sentencing factors.” United States v. Buckland, 289 F.3d 558,568 (9th Cir. 2002)
  After the Ninth avoided serious Apprendi constitutional challenges to the drug statutes in Buckland, it never went on to finish the job. The Court never required that these newly-minted pseudo-elements for drug offenses also carry mens rea requirements. See United States v. Carranza, 289 F.3d 634, 644 (9th Cir. 2002) (“the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed; the government need only show that the defendant knew that he imported or possessed some controlled substance.”) (emphasis in original). 

  In sum, the Callazo en banc court today reaps the chaos of Buckland seeds sown eighteen years ago.
  Ben knows of what he speaks -- he and former San Diego AFD Steve Hubachek were two of the attorneys at the forefront of that bitter Buckland battle. Funny old world, to now watch Mr. Coleman (politely) addressing the downstream unintended consequences of the unfortunate Buckland decision, two decades after it was delivered.

How to Use: Spoiler alert: we won the battle (probably).
   During the en banc argument, Judge M. Smith deftly boxed the government into conceding its case -- conjunctive instructions will likely be the e.b. court’s holding. (Such an admirable cross that it earned a chuckle from the Chief).
  The far more interesting remaining issue that remains for the en banc Court is whether Judge Fletcher’s compelling Jefferson concurrence will prevail.  [Ed. opinion: it should!].

Hon. Judge W. Fletcher
   Read Judge Fletcher’s Jefferson concurrence and preserve these drug mens rea issues: this is a very hot topic, and (hopefully) a profoundly important legal development.
For Further Reading: Judge W. Fletcher’s must-read Jefferson concurrence is available here, at page 13. 
  For an overview of Judge Fletcher's concurrence, see blog entry  here

Screen shot of en banc court from

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


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