Sunday, July 26, 2020

Case o' The Week: A Snitch in Time? "No," Says Nine - Obagi and Brady / Giglio Remedies

  Gov’t snitch lies? 

The Hon. Judge John Owens

  Case retries.

United States v. Obagi, 2020 WL 4033849 (9th Cir. July 17, 2020), decision available here.

 Players: Decision by Judge Owens, joined by D.J. Molloy. Dissent by Judge Bumatay. Big win for former CD Cal AFPDs Craig Wilke and Davina Chen.  

 Facts: Obagi and his co-D were tried on charges related to mortgage fraud. Id. at *1. The government relied heavily on cooperators. Id. at *2. To bolster its case, the government called witness “Saad,” who testified against the defendants. Saad assured the jury that she had received no consideration from the government. Id. The AUSA “relied heavily” on Saad’s confirming testimony in closing, as a non-compromised and corroborating government witness. Id.

   A different AUSA was watching the closing arguments. He informed the Obagi prosecutor that Saad was actually cooperating, and had received immunity in a separate mortgage investigation. Id. at *3.

   The court discussed options: a mistrial, recalling Saad to be crossed, or an instruction. Id.

   The court decided on a curative jury instruction, and both co-D’s were convicted. Id.  

 Issue(s): Because the details of Saad’s cooperation was Brady evidence, was a curative instruction given after the government’s closing argument a sufficient remedy?

 Held:Had the information impeaching Saad been disclosed prior to the close of evidence, this presumption and the normal rules concerning curative instructions likely would govern here.” Id. at *4.

  “Given the difficulty the jury faced in reaching a verdict, we cannot say with confidence that the undisclosed impeachment did not affect the jury’s judgment. Nor can we conclude that the district court’s instruction fully cured the prejudice that resulted from the government’s Brady violation.” Id. at *5.

  “Because there is a reasonable likelihood that the undisclosed evidence impeaching Saad could have affected the judgment of the jury, we are compelled to reverse the convictions and remand the case to the district court for further proceedings.Id.

Of Note: It is unfathomable: how did CD Cal AUSAs not figure out that were calling a (lying) cooperator, and affirmatively assure the jury that she was not a cooperator, when the snitch had in fact been given a no-pros deal in a mortgage fraud case (apparently in the same U.S. Attorney’s office?) This is particularly outrageous in California, where ethical rules require prosecutors to affirmatively hunt down and disclose such information. See Cal. R. Prof. Conduct 3.8, available here

   In N.D. Cal, the vast majority of D.J.’s have granted Brady / 3.8 disclosure orders, setting deadlines for disclosure before trial. If such a pretrial order had been in place in Obagi, the government would have been more careful when checking on its own witnesses – and toothier remedies would have been available when this violation came to light. Obagi illustrates yet again why no case should go to trial in California, without a stout Brady / Rule 3.8 disclosure cut-off order in place.

 How to Use: Judge Bumatay’s dissent ably highlights the value of this decision for the defense. See id. at *5 (Bumatay, J. dissenting). He complains that the opinion essentially means de facto reversal anytime there is a Brady disclosure after closing arguments. Id. Judge Bumatay is also irked by the fact that the trial defense counsel declined the district court’s offers to recall the cooperator, Saad, to the witness stand, or to revisit closing arguments – yet the defendants still prevail on appeal. Id. at *6.

  Arguing for the broad scope of Obagi’s Brady holding? Start with the dissent’s helpful outline supporting that proposition.                                               

For Further Reading: In a grim milestone, last week the first COVID-19 death was reported out of Santa Rita Jail, when Deputy Oscar Rocha succumbed to the disease. See article here

  Over 100 inmates have now tested positive for COVID-19 at the jail. Though ninety-three of the inmates are deemed “asymptomatic,” in a deeply troubling interview, one allegedly “asymptomatic” inmate in the jail reports what that designation really means (or rather, what it doesn’t mean). See Infected Santa Rita inmate describes jail life amid COVID-19 outbreak, available here



Image of the Honorable Judge John Owens from


Graph of comparative infection rates by Chief Assistant Candis Mitchell, available at:



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





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Sunday, July 19, 2020

Case o’ The Week: J/x Jinx - Luong and "interstate commerce" proof, Hobbs Act robberies

Ninth denies Perry Mason surprise.



United States v. Luong, 2020 WL 4033847 (9th Cir. July 17, 2020), decision available here.


Players: Decision by visiting District Judge Smith, joined by Judges Rawlinson and Bybee.

  Hard fought appeal by former ND Cal AFPD Ned Smock, and ND Cal AFPDs John Paul Reichmuth and Robin Packel.


Facts: It was effectively conceded at the Hobbs Act trial that Luong had robbed a man at gun point. Id. at *1. Luong, who lived in the Bay Area, had lured the Bay Area victim to a BART station through a car ad placed on a Bay Area Craigslist post. Id. Craigslist is a local internet service, although it does link to sales of similar items in adjacent states. Id

  The defense only contested the interstate commerce element at trial: the jury hung on the Hobbs Act and 924(c) counts. Id. Luong was convicted at retrial.


Issue(s): Was there sufficient evidence of interstate commerce to satisfy the Hobbs Act jurisdictional requirement?


Held: “Even if we view Craigslist as facilitating only local transactions, the interstate-commerce jurisdictional nexus is still met here. The Supreme Court’s opinion in Taylor v. United States, 136 S. Ct. 2074 (2016), guides our analysis. In Taylor, the Supreme Court concluded that, because Congress has the authority to regulate the national marijuana market, including the purely intrastate production, possession, and sale of marijuana, based on its aggregate effect on interstate commerce, so too may Congress regulate intrastate marijuana theft under the Hobbs Act. Id. at 2077. While the Court in Taylor limited its holding ‘to cases in which the defendant targets drug dealers for the purpose of stealing drugs or drug proceeds[,]’ and declined to ‘resolve what the Government must prove to establish Hobbs Act robbery where some other type of business or victim is targeted[,]’ id. at 2082, the logic employed in Taylor readily applies to the facts of this case. Therefore, the Hobbs Act’s interstate-commerce element is satisfied in cases like this one, where the government demonstrates that a person used a commercial website to advertise a commercial transaction in order to facilitate a robbery.” Id. at *5. 


Of Note: Luong only contested the jurisdictional element at trial, and objected to evidence related to that elementId. at *13. The district court nonetheless denied acceptance of responsibility at sentencing! In a silver lining to this dark cloud of a case, the Ninth reverses and remands for a resentencing. Defense counsel, explains the Ninth, cannot be expected to sit on their hands and tolerate government surprise witnesses “a la Perry Mason.” Id. at *14. 

    Luong is the rare acknowledgement that “acceptance of responsibility” should not be used as a hammer to punish defendants for going to trial on jurisdictional elements: a welcome addition to the law on that guideline. 


How to Use: On appeal, Luong forcibly argued that the Hobbs Act statute has a different and more-demanding interstate commerce requirement than other criminal statutes, that are satisfied by mere “use” of interstate commerce. Id. at *6. 

  The Ninth dodges this issue, holding that Luong’s use of Craigslist was sufficient to satisfy the Hobbs Act requirement, even if it is more stringent. Id.  

  This section of the decision is worth a very close read for Hobbs Act cases: even visiting DJ Smith concedes in Luong that there are cases where a robber’s use of the internet would be so minimal as to fall short of the jurisdictional requirement.


For Further Reading: COVID-19 now rages through Santa Rita Jail. The huge facility houses almost all federal pretrial inmates in the Northern District of California. The jail now has over 100 inmates who have recently tested positive, and over 40 deputy sheriffs. See article here. At least forty of these COVID-positive inmates are feds: a disproportionately high figure, considering the relative population of federal inmates in the jail. 

  Although county inmate populations have been voluntarily reduced in the jail, the federal population has again risen to pre-pandemic high levels. 

  This new crisis cries out for the U.S. Attorney’s Office to reduce the numbers of federal inmates. Time for a NorCal Bail Summit.



Image of Perry Mason from


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




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Sunday, July 12, 2020

Case o' The Week: Anon, anon - Vandergroen, Anonymous Tips, and Reasonable Suspicion

 An anonymous tip does not establish reasonable suspicion. 

(But three anonymous tips might).
  United States v. Vandergroen, 2020 WL 3737376 (9th Cir. July 7, 2020), decision available here.

Players: Decision by visiting D.J. Rakoff, joined by Judges Friedland and Bennett.
  Hard fought appeal by N.D. Cal AFPDs Jerome Mathews and Robin Packel.

Facts: A bar employee (“Witness 2”) called 911 and reported that three anonymous bar patrons had seen a man with a pistol on him. Id. at *1. The bar employee identified himself. The caller described the man and the man’s movements, and then described the man running to a car. Id. at *2. The caller said that no one had seen the man fighting. Id. Cops then stopped a car driven by the man, Vandergroen, and found a gun. Id.
  Vandergroen was charged with being a felon-in-possession. When his motion to suppress was denied, he went through a stip-facts bench trial and appealed. Id.

Issue(s): “[ ] Vandergroen argues that evidence discovered in the course of his arrest should be suppressed because the police did not have reasonable suspicion to stop him in the first instance. Under the Fourth Amendment, an officer may conduct a brief investigative stop only where she has a particularized and objective basis for suspecting the particular person stopped of criminal activity, commonly referred to as ‘reasonable suspicion.’ . . . While a tip such as the 911 call may generate reasonable suspicion, it can only do so when, under the ‘totality-of-the-circumstances,’ it possesses two features. . . . . First, the tip must exhibit sufficient indicia of reliability, and second, it must provide information on potential illegal activity serious enough to justify a stop.” (internal quotations and citations omitted).

Held: In short, the 911 call in this case was both reliable and provided information on potentially criminal behavior. Witness 2 was reliable as an identified caller using an emergency line, and the [ ] patrons’ reports he conveyed contained sufficient indicia of reliability to support reasonable suspicion. Furthermore, the reported activity—possessing a concealed weapon—was presumptively unlawful in California and was ongoing at the time of the stop. Thus, the 911 call generated reasonable suspicion justifying the stop and the district court was correct to deny Vandergroen’s motion to suppress the evidence obtained during the stop.” Id. at *5.

Of Note: Visiting D.J. Rakoff struggles in Vandergroen to distinguish Judge Wardlaw’s great decision in United States v. Brown, 925 F.3d 1150 (9th Cir. 2019). See id. at *4. Like Vandergroen, in Brown the Ninth considered an investigatory stop when an anonymous tip against a defendant did not involve allegations of serious criminal activity. See generally blog entry here
  In Brown, however, the stop was deemed illegal – and the reality of race-based stops was expressly tackled in the opinion. See id. at 1156-57. By contrast, Vandergroen tolerates an “investigatory” stop of a person of color (here, of Asian / Indonesian descent), based on anonymous tipsters, for the California wobbler offense of carrying a concealed weapon.
  The Brown and Vandergroen decisions bookend the death of George Floyd and the explosion of the Black Lives Matter movement -- worth reading this pair of decisions together in the context of those events.

How to Use: Wait – aren’t anonymous tips junk? Here, the only tipsters who actually saw Vandergroen with a pistol were anonymous bar patrons. The Ninth tries to reassure us that the tips were reliable enough to “overcome this shortcoming.” Id. at *3. The tips were “fresh,” based on “first hand knowledge,” and the tipsters were still at the bar (although anonymous). Id. There were also multiple (anonymous) tipsters. Id. 
   Remember these limiting facts when the government inevitably overstates Vandergroen as a green light for all anonymous tips.
For Further Reading: California will release up to 8,000 prisoners, to help stem to flood of COVID-19. See article here
  California U.S. Attorneys, by contrast, are filing increasing numbers of federal cases, and seeking pretrial detention of even more federal inmates -- despite stalled-out re-openings and rising COVID infection rates in our State.
   Inmates and COVID: yet another example of how Cali and the Feds take radically different approaches to the pandemic.

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


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Sunday, July 05, 2020

Case o' The Week: Ninth Nod for Narrow Notice -- Cox and "Making Notice" Offering Child Porn

Notice of One? 
Defendant is done.
 United States v. Sarah Cox, 2020 WL 3479648 (9th Cir. June 26, 2020), decision available here.

Players: Decision by visiting DJ Gwin, N.D. Ohio, joined by Judges R. Nelson and Bress.  

Facts: In August 2015, under the “Kik” username “JadeJeckel,” Sarah Cox exchanged texts with a man named, “Hennis.” They discussed plans to murder a mother and sexually abuse the children. Id. at *1. Roughly four months later, the pair exchanged texts again and discussed child porn. Id. at *2. Cox then used Kik to send to Hennis two Dropbox links, one of which contained child porn. Id. In the text conveying the links, Cox called them “goodies for daddy.” Id. Hennis was arrested: searches lead to Cox. Among other counts, she was charged with “making a notice offering child pornography,” in violation of 18 U.S.C. §§ 2251(d)(1)(A), 2256. Id
  Cox’s trial defense was that she was not, “JadeJeckel.” Id. Over her objection, the district court admitted the August 2015 texts about the murder of a mother and rape of children, as FRE 404(b) evidence. Id. 
  Cox was convicted after a jury trial. Id. She was sentenced to over 21 years in prison. See news article here 

Issue(s): “On appeal, Cox argues that a one-to-one communication cannot be a ‘notice or advertisement’ of child pornography under 18 U.S.C. § 2251(d)(1). She argues that the statute requires ‘something more than a one-on-one exchange.’ Because her communication ran only to Hennis, she argues there was insufficient evidence for her § 2251(d)(1) conviction.” Id. at *3. 
   “Whether 18 U.S.C. § 2251(d)(1)’s ‘notice provision applies to one-to-one messages is an issue of first impression in this circuit.” Id.  

Held:Based on the plain statutory language, we hold that one-to-one communications can satisfy the legal definition of ‘notice’ under 18 U.S.C. § 2251(d)(1). Applying this construction to the instant case, we conclude that a rational trier of fact could find that Cox made a notice offering child pornography when she sent a one-to-one electronic message linking to a Dropbox account that contained child pornography.Id. at *8.

Of Note: The Ninth’s second holding tolerates the admission of texts sent four months before the charged conduct. Id. at *7. Whatever the FRE 404(b) problems with this holding, the FRE 403 balancing is of particular concern. Id. at *8. District Judge Gwin concedes that, “As to the danger of unfair prejudice, the August 2015 messages included prejudicial evidence. In the August 2015 messages, Cox and Hennis discussed murdering a mother to steal a child and their desire to kidnap, enslave, and rape children. But other-act evidence in sex-crimes cases is often emotionally charged and inflammatory, and this does not control the Rule 403 analysis.” Id.
  Worry about Cox’s tolerance of “emotionally charged and inflammatory” “other-act” evidence when mulling the defense of sex cases: the regrettable texts preceding the charged conduct may more dangerous than the main case itself.   

How to Use: This disappointing rule of first impression in the Ninth reads “notice offering child pornography” broadly to include this case’s one-to-one text (instead of a more-natural reading, that would limit “notice” to a larger audience). In a thin silver lining, the Ninth warns that this does not mean that all “one-to-one communications” will be violations of the “notice” statute. Id. at *6. Instead, this limited holding affirms a conviction only on the facts in Cox’s case. Id. What remains is an admittedly tricky distinction to pull off, but one that may remain available in future “notice” cases.  
For Further Reading: Hidden below the pandemic headlines and behind the news of Black Lives Matter protests lurks a troubling development: the resurrection of the long-moribund Sentencing Guideline Commission. 
  For years the Commission has been unable to promulgate punitive new Guideline amendments, for want of a quorum. D.C. buzz, however, suggests that happy hiatus may now be drawing to a close. See Concerns Mount Over Possible Trump Picks For Influential Crime Panel, available here. 

Image of the USSC seal from

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


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