Sunday, June 28, 2020

Case o' The Week: Feeling Weemish After Conviction Affirmed - Lamar Johnson (II) and Scope of Review for Sufficiency of Evidence Challenges

 The Ninth never goes fishing beyond the trial record, when reviewing a sufficiency-of-evidence challenge to a conviction.

The Hon. Judge Paul Watford
 (Well, almost never).
United States v. Lamar Johnson, 2020 WL 3458969 (9th Cir. June 25, 2020), decision available here.

Players: Decision by Judge Watford, joined by Judges Rawlinson and Wallace. 
  Hard fought appeal by N.D. Cal AFPD Robin Packel.

Facts: To preserve a suppression challenge, Johnson went through a stipulated facts trial in a §922(g)(1) case, and appealed. Id. at *1. The Ninth upheld the denial of the suppression motion. See generally Johnson blog entry here.  
   While Johnson’s cert. petition was underway, the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019). Rehaif required the government to prove that a defendant knew he belonged to a class of persons prohibited from possessing a gun (in this case, the class being “felons.”) Id. at *1. That fact was not proved in Johnson’s stip fact trial.
   The Supreme Court GVR’ed Johnson’s cert. petition. In his second Ninth visit, Johnson challenged the government’s failure to prove the Rehaif knowledge element in the stip facts bench trial. Id. at *2. The Ninth Circuit first held that, because Johnson did not challenge the sufficiency of evidence in the bench trial, it was required to conduct “plain error” review. Id.

Issue(s): “The central issue we must decide is whether, in assessing the fourth prong of the plain-error standard, [whether the error seriously affected the fairness, integrity, or public reputation of judicial proceedings], we may consider the entire record on appeal or only the record developed at trial. If we are limited to considering the trial record alone, as Johnson urges, his case for reversal appears strong. The factual stipulation submitted by the parties does not state whether Johnson knew he had been convicted of a crime punishable by imprisonment for more than a year. It merely states, as a matter of historical fact, that Johnson had previously been convicted of ‘a crime punishable by imprisonment for a term exceeding one year.’ Without more information about the nature of the crime or the length of the sentence imposed, a rational trier of fact would be hard pressed to infer that Johnson knew of his prohibited status as required under Rehaif. And that failure of proof might well be deemed to affect the fairness or integrity of the judicial proceedings resulting in his convictions.” Id.

Held: “[W]e see no basis for limiting our review under the fourth prong to the record adduced at trial. To be sure, in most cases involving unpreserved sufficiency-of-the evidence challenges, the portions of the record on appeal outside the trial record will be irrelevant to the analysis. In the ordinary case, as in James, a retrial will not be permitted if the government’s evidence is found insufficient, so the validity of the defendant’s conviction must be judged based on the trial record alone. Even in cases subject to the exception created in [United States v. Weems, 49 F.3d 528 (9th Cir. 1995)], the record on appeal will often not disclose what additional evidence the government might possess to prove an element that it had no reason to prove during the first trial. But if the record on appeal does disclose what that evidence consists of, and the evidence is uncontroverted, we can think of no sound reason to ignore it when deciding whether refusal to correct an unpreserved error would result in a miscarriage of justice.Id. at *5.

Of Note: The Ninth relies on the ’95 Weems decision, which carves out an exception to that rule when there is an intervening change in the law after the government’s original proof at trial. Note Judge Watford takes pains to limit the scope of this exception, id. at *5, -- but those limitations are small solace in this Rehaif decision.

How to Use: Johnson does not hold that all Rehaif challenges are doomed. Mr. Johnson had the unfortunate burden of three prior felonies, with years of prison time. If your client doesn’t have a similar record (suggesting knowledge of a felony prior) you may be able to dodge this Weems dodge in your Rehaif challenge.
AUSA Jason St. Julien
For Further Reading: How does it feel to be a black AUSA, watching Black Lives Matter protests?
  For a remarkable and courageous piece by AUSA Jason St. Julien, see this Denver Post editorial, here 

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


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Sunday, June 21, 2020

Case o' The Week: Ninth Gives Two Bites at Appeal Notice - Shehadeh, Notices of Appeal, and Restitution Orders

  New Ninth jurist pens – "appealing" – decision.

The Hon. Judge Ryan Nelson
United States v. Shehadeh, 2020 WL 3278724 (9th Cir. June 18, 2020), decision available here.

Players: Decision by Judge R. Nelson, joined by visiting Judge Stiler and Judge Bybee.  

Facts: Shehadeh pleaded guilty to a thirty-year deal in an arson case. He moved for immediate sentencing without a PSR. Id. at *1.
  The district court obliged.
  Two months later, Shehadeh moved to withdraw his plea. Four months after that, the court held it lacked jurisdiction and denied the motion. Id. at *2.
   The court then entered an amended judgment with a restitution order. Id.
   Shehadeh appealed.

Issue(s): “’A defendant must file a notice of appeal within fourteen days of the entry of either the judgment or the order being appealed . . . Shehadeh contends his appeal was timely because he filed it within fourteen days of the district court’s entry of its amended judgment ordering restitution. The government argues Shehadeh’s appeal is untimely because he did not appeal within fourteen days of the district court’s entry of judgment announcing his custodial sentence.” Id. at *2.
   “The government argues that because deferred restitution cases involve two appealable judgments, not one, . . . Shehadeh was required to appeal within fourteen days of the district court’s entry of judgment on Shehadeh’s custodial sentence in February. Instead, Shehadeh waited to appeal until after the district court entered its amended judgment ordering restitution six months later.” Id. [The Supreme Court in Manrique v. United States, . . . 137 S. Ct. 1266 . . . (2017)] “only held that a notice of appeal filed after a sentence of imprisonment does not ‘spring forward’ to become effective to appeal an order of restitution entered later . . . The Court did not address the opposite issue presented here: is a defendant’s notice of appeal after an amended judgment ordering restitution timely to appeal the initial judgment of conviction and sentencing?” Id.

Held: “We hold that in these circumstances it is.” Id.
  “It is true that, after Manrique, Shehadeh could have filed an appeal within fourteen days after the initial judgment imposing his custodial sentence . . . But he was not required to do so. Our conclusion today is that, where a district court defers its restitution order, a defendant wishing to appeal his conviction and sentence of imprisonment may enter a notice of appeal either within fourteen days following the district court’s entry of the custodial sentence, or within fourteen days of the entry of the amended judgment, which includes the amount of restitution.Id. at *2.

Of Note: Shehadeh waived the PSR in the district court, then complained there was no PSR on appeal. The Ninth shrugs and concludes PSRs are no longer required. “In light of the Supreme Court’s . . . holding in . . . Booker, . . . that the Sentencing Guidelines are advisory, Turner’s holding that a presentence report cannot be waived is no longer good law . . . Congress has not acted since Booker to prohibit waiver of a presentence report. We will not prohibit that waiver here, where the defendant knowingly waived his right to preparation of a presentence report and asked to proceed to sentencing as quickly as possible.” Id. at *5. Shehadeh deeming PSRs waivable is welcome news, as we’re forced to jam cases towards quick time-served sentencing (i.e., 98% of NorCal’s “Tenderloin” “$20 hand-to-hand” drug felonies that have plagued our federal courts).

How to Use: Shehadeh third holding is this: a district court does have jurisdiction to consider a motion to withdraw a plea of guilt, filed after the “primary” sentencing but before the (later) restitution order is imposed. Id. at *3.
  Mull this timing wrinkle: after Shehadeh, when there are many months between sentencing and the restitution order, there is much time for buyer’s remorse and a (perhaps imprudent) motion to withdraw . . .
For Further Reading: Last week S.F. D.A. Chesa Boudin announced that his office will not charge cases that rely on officers with serious prior misconduct. See S.F. D.A. policy here.
  Will the N.D. Cal U.S. Attorney’s office join in this admirable policy? Or will cross-designated federal officers just salvage cases with bad cops, that Boudin dumps from the Hall of Justice?

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


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Sunday, June 14, 2020

Case o' The Week: Convictions Fine, Though Cops Opine - Perez, law enforcement opinion testimony, and FRE 701

No disagreement to report, between Judges Tallman and Berzon.

Hon. Judges Tallman and Berzon

  United States v. Perez, 2020 WL 3089261 (9th Cir. June 11, 2020), decision available here.

Players: Decision by Judge Tallman, joined by Judges Berzon and R. Nelson.  

Facts: Perez and his co-defendants went to trial on charges arising out of their alleged participation in a violent gang. Id. at *1. The government called four law enforcement witnesses: a BOP investigator, two FBI agents, and a L.A. detective. Id. at *6. The BOP investigator analyzed tattoos, associations, visitations, fund deposits in prison, and communications with incarcerated gang members. Id. He also opined as to the “Mayan roots” of the gang. Id. at *7. The FBI agents matched gang members to monikers, translated gang jargon, and identified indicia of drug trafficking. Id. The agents also interpreted the meaning of graffiti, and opined on the interpretation of wiretaps. Id. The detective went as far as paraphrasing a gang member’s conversation in a way that “made their incriminating nature more clear.” Id. at *8. None of these witnesses were designated as Federal Rule of Evidence 702 experts.

Issue(s): “The four officers opined on a variety of subjects. Appellants claim that some of this testimony, including their opinions on ‘code words, phone calls, graffiti, and tattoos,’ was not permissible lay-opinion testimony.” Id. at *6.

Held:The district court diligently patrolled the line between lay and expert testimony. In those few instances in which admission of these four witnesses’ testimony was error, Appellants suffered no prejudice. We decline to disturb Appellants’ convictions on this basis.” Id. at *9.

Of Note: The clash between non-expert cop testimony and FRE 701 is a hot area of federal law. Notably, one of the three judges on this panel, Judge Berzon, has raised serious concerns about this dangerous practice. See United States v. Gadson, 763 F.3d 1189, 1223 (9th Cir. 2014) (Berzon, J., concurring and dissenting); see also Ninth Circuit Blog, on Gadson, here
  In Gadson, Judge Berzon surveyed the Ninth Circuit’s authority and warned, “These cases well identify the dangers of allowing a police officer—who is not an ordinary lay person—to testify based on masses of information not described in any detail to the jury. When our circuit held in Kevin Freeman that an agent’s ‘interpret[ation of] ambiguous statements based on his general knowledge of the investigation’ was permissible lay opinion testimony, it did not address these risks at all.” Id. at 1226. Despite Gadson, you’ll search in vain for Judge Berzon’s dissent in Perez. An unfortunate silence in the FRE 701 debate.

How to Use: How did Perez differ from Gadson? More pointedly, why did Judge Berzon dissent in the latter but not in the former? Maybe plain error review. Judge Tallman concedes in Perez that some of the testimony “approaches the line that Judge Berzon warned about in her partial concurrence in Gadson . . . .” Id. at *8. Judge Tallman concludes, however, that “A thorough examination of the transcripts of . . . phone conversations reveals they do not so much as mention any Appellant’s name or moniker, nor do they pertain in any way to [the defendants’] roles in [the gang]. There was no plain error in allowing this testimony.” Id. at *8. Judge Tallman concedes times that admission of the testimony might have been erroneous -- but the Court avoids the issue and decides the case on plain error (or, at times, harmless error) review. See e.g. id. (“Even granting, for sake of argument, that any error in admitting [the detective’s] opinions should have been plain to the district court, [the Appellants] cannot show that allowing the jury to hear those opinions affected their substantial rights or the fairness of the proceedings.”)
  Fight to limit Perez as a FRE 701 opinion that we should be cabined to its error analysis, and reject it as a broad endorsement cop psuedo-expert testimony.
For Further Reading: Gut tell you that our criminal justice system is racist?
  Trust your instincts. 

  For a compelling article gathering statistical proof, see, Radley Balko, There’s overwhelming evidence that the criminal justice system is racist. Here’s the proof.,” available here. (“A 2013 study found that after adjusting for numerous other variables, federal prosecutors were almost twice as likely to bring charges carrying mandatory minimums against black defendants as against white defendants accused of similar crimes.”)

Image of the Honorable Judges Tallman and Berzon from

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


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Sunday, June 07, 2020

Case o' The Week: Mathis Path Is Blocked, for Walker - Walker and Proof of ACCA Predicates

  In a previous bout with Mathis, Judge Bybee admitted to being “frustrated with the whole endeavor.” United States v. Martinez-Lopez, 864 F.3d 1034, 1058 (9th Cir. 2017) (Bybee, J., “concurring in part and dissenting in part, but frustrated with the whole endeavor.”)

The Hon. Judge Bybee
   He seems less frustrated, this time around. (Unfortunately).
United States v. Walker, 953 F.3d 577 (9th Cir. Mar. 20, 2020), decision available here.

Players: Decision by Judge Bybee, joined by Judge N.R. Smith and visiting Judge Melloy. 
  Hard-fought appeal by ED Cal AFPD Peggy Sasso.  

Facts: Walker pleaded guilty to being a felon in possession of a firearm. Id. at *578. He had three prior convictions for “willfully inflicting corporal injury” on a spouse or cohabitant, in violation of California Penal code § 273.5: one in 1998, a second in ’99, and a third in 2014. Id.
  Walker did not admit to having been convicted of these felonies, so the government presented certified copies of the prior judgments. Id. The district court determined that Walker had previously been convicted of three separate violent felonies, triggering a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”). Id.

Issue(s): Walker “argues that it was error under Apprendi v. New Jersey, 530 U.S. 466 . . . (2000), for the district court to have determined that his prior convictions were separate incidents, and that such determination had to be made by a jury.” Id.
  “To get around [Ninth Circuit precedent in] Grisel, Walker claims that the case has been implicitly overruled by Mathis v. United States, . . . 136 S. Ct. 2243, 2253 . . . (2016). Specifically, he points to discussions in Mathis explaining that a ‘non-elemental fact’ cannot be used to enhance sentences under the ACCA. Thus, he asserts that because the dates of his prior convictions are non-elemental facts, they cannot be considered by the sentencing judge for the purposes of applying the ACCA.” Id. at 581.

Held: “Context, however, shows that Mathis is not so encompassing as to abrogate Grisel.” Id.
  “With no on-point discussion in Mathis regarding how judges determine the number of prior offenses, Walker fails to show that Grisel “is clearly irreconcilable with [Mathis’s] reasoning or theory.” Miller, 335 F.3d at 893. To the extent that Mathis expresses broader disfavor of factual determinations by sentencing judges, it is not clear whether and how this disfavor extends beyond determining that a given state-law crime is an ACCA predicate . . . Pointing to “’some tension’ between [stray statements in Mathis] and prior circuit precedent” is not enough for the panel to consider Grisel overruled. Lair, 697 F.3d at 1207. In finding that Walker had been convicted of three or more violent felonies, the sentencing judge needed to look no further than the face of the certified judgments to determine these convictions were for distinct acts.” Id. at 581.

Of Note: Judge Bybee’s disappointing reading of the Supreme Court’s decision in Mathis is not the only bad news in this ACCA decision. The Ninth also rejects defense arguments that California D.V. cases under Cal. Penal Code § 273.5 are not crimes of violence. See id. at 579-80.
  A tough decision all around, for those fighting the staggering mand-mins in ACCA cases.

How to Use: Because Ninth precedent confronted Walker at every turn, the leitmotif of his appeal was trumpeting intervening Supreme Court precedent on the categorical approach and ACCA predicates. As a result, Judge Bybee spends much of this short opinion arguing why old Ninth cases dodge new SCOTUS bullets. See, e.g., id. at 580 (discussing Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), in context of challenge to Cal. P.C. § 273.5); id. at 581 (discussing Miller in context of Mathis’s limitations of judicial findings for predicate offenses).
  Putting aside the persuasiveness of Walker’s Miller analysis, it is a decision worth a read if you’re urging a three-judge panel to correct bad Ninth law after an intervening Supreme Court opinion.
For Further Reading: San Francisco’s most iconic symbol, the Golden Gate Bridge, hosted another iconic Bay tradition: a peaceful protest. Yesterday thousands of marchers shut down the bridge, protesting the killing of George Floyd and systemic police racism and violence. See article and video here

  Look for more protests by public defenders tomorrow, in the Bay Area and across the country.

Image of the Honorable Judge Bybee from

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



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