Sunday, August 30, 2020

Case o' The Week: Ninth Axes Conviction after Juror Dismissed - Litwin, Sixth Amendment and Dismissals of Deliberating Jurors

 Axes to grind . . .


on Ninth’s mind. United States v. Litwin, 2020 WL 5050383 (9th Cir. Aug. 27, 2020), decision available here.

 Players: Decision by Judge Bress, joined by Judges Gould and Christen.

 Facts: Medical Assistant Litwin and his co-D, Dr. Wetselaar were charged with illegally distributing prescription medicine. Id. at *2. At trial Juror 5 was selected, but then explained her employer wouldn’t pay her salary while she served. She was left on anyway. Id. at *2-*4.

  The trial took 35 trial days. Id. at *5.

  Three hours into deliberations, a juror complained that Juror 5 “will not change her mind” and “will not deliberate.” Id. at *5. The district judge opined that Juror 5 “had an axe to grind” and was refusing to deliberate in retaliation for being left on the jury. Id. at *7.

  There followed an exchange where Juror 5 agreed to review the evidence, listen to the other jurors, and come up with a verdict. Id. at *9. Despite those assurances, and over defense objection, Juror 5 was excused. Id. at *9-*10.

  The next morning an alternate came in: a guilty verdict followed that afternoon. Id. at *10.

 Issue(s): “We confront in this case the question whether a district court erred in dismissing a juror, hours into jury deliberations following a lengthy criminal trial. Dismissing a juror based on her views of the strength of the government's case is an intrusion on the jury's role and violates the Sixth Amendment. But though the decision must be made carefully, there are various reasons why a district court may properly, and in its discretion, remove a juror from service once the jury has begun deliberating. Determining whether such a dismissal was a violation of the defendant's constitutional right to a unanimous jury verdict, or instead a permissible response to a juror's recalcitrance, bias, or incapacity, is a sensitive task. Because district courts observe jurors first-hand, they are accorded considerable deference in their handling of these issues.” Id. at *1.

 Held: Under the unique facts before us, however, and notwithstanding the substantial resources expended in this case, we are constrained to conclude that the district court erred in dismissing a juror. The district court's determination that the juror harbored ‘malice toward the judicial process’ is not supported and cannot provide the basis for the juror's dismissal. And while the district court also cited the juror's alleged refusal to deliberate, based on the record in this case we are firmly convinced there was a reasonable possibility that the juror's dismissal stemmed from her views on the strength of the government's prosecution.” Id.

 Of Note: As the appeal proceeded through argument, the Ninth sought supplemental briefing from the parties on the dismissal of Juror 5. Id. at *10. In response, the district court filed a minute order supplementing the record with emails from Juror 5. Id. at *10. The district court also offered the Ninth an (unsolicited) opinion about the “overwhelming weight of the evidence supporting a finding of guilt.” Id. at *10. Finally, the DJ offered to provide declarations from court staff about Juror 5’s demeanor. Id.

  This curious minute order, and the court’s offer of new declarations, earned a cool reception in the Ninth. Id. at *15.

  An odd twist in an odd case.

 How to Use: Is the improper dismissal of a juror during deliberations structural error (leading to automatic reversal), or is it reviewed for harmless error? Oddly enough, this standard-of-review has not yet been resolved. Id. at *19. Judge Bress avoids deciding it here. Even adopting the government’s “harmless error” approach, the Ninth concludes that any error was not harmless. Id. at *20.

  The standard of review used could well determine the outcome in a future “excused juror” appeal – beware of this unresolved S.O.R. issue.

 For Further Reading: Litwin’s co-defendant, Dr. Wetselaar, was a 93-year old WWI veteran -- one of the oldest federal defendants ever sentenced.  See Review Las Vegas Review-Journal article here.  Id. He suffered from prostrate cancer, chronic renal failure, heart valve disorders, and brain atrophy. Id. 

  He was sentenced to ten years custody. Id.

Dr. Wetselaar

  Three years ago the Ninth reversed the district court’s refusal to grant bail pending appeal. See blog here

  Dr. Wetselaar passed away last April: the Ninth ordered the district court to vacate the judgment and dismiss the indictment as to this defendant. 2020 WL 5050383, at *11 & n.3.



Image of “axe to grind” from  Image of Dr. Weselaar from



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



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Thursday, August 27, 2020

1. US v. Rodriguez-Gamboa, No. 19-50014 (Hurwitz w/Wardlaw & Bataillon). In a “categorical approach” opinion, the 9th considers whether California’s statute prohibiting sale of both “geometric and optical isomers of methamphetamine is not a categorical match with the federal statute that prohibits only “optical isomers.” Is the state statute overbroad? No, decides the 9th, because there is no “realistic possibility” – even theoretical – that any defendant could face prosecution for geometric isomers. Such isomers do not exist. The 9th found that the legislative text, with this impossibility, is not a true legislative choice. The dismissal of the indictment is reversed and the case remanded.

David Menninger, Deputy Fed Public Defender, Cal C (L.A.), learned a lot of chemistry in a spirited fight on this issue.

The decision is here:

2.  US v. Litwin, No. 17-10429 (8-27-20)(Bress w/Gould & Christen). Fraud and conspiracy convictions, resulting from a lengthy fraud trial, are reversed and remanded due to the improper dismissal of a juror during deliberations. The district court dismissed Juror #5 (a paralegal who had practiced as a defense lawyer in the Philippines) because of malice towards the judicial system and a refusal to deliberate. This occurred 3 hours into deliberations after a 36-day trial. The record did not support such animosity, even if there was anger at the court making her sit as a juror; and the evidence as to refusal also had evidence of confusion over jury instructions, which was not a decision not to discuss the case. The 9th was sympathetic with the court, but concluded that the removal was too soon, and without a sufficient justification or record. The error was structural.

The decision is here:

US v. Hussain, No. 19-10168 (8-26-20)(Bress w/R. Nelson & Gwin). It was a con in the boardroom. The scheme, involving complex fraudulent transactions, deception, misleading statements, and hoodwinking – conned Hewlitt-Packard into buying a startup, Autonomy Corporation, a British company, at a grossly inflated value. It worked – for a while, and until the books were carefully examined.  Because of this elaborate accounting scheme, HP got an overvalued company. Meanwhile, the start up’s CFO pocketed a cool $16 million. Alas, he was eventually convicted of wire fraud, conspiracy, and securities fraud in a district court in Cal N.

On appeal, defendant argues the wire fraud statute is an impermissible extraterritorial application of US law to foreign conduct. The 9th rejects this argument and affirms the convictions. Using the test of Morrison, 561 US 247 (2010), the first step is whether the statute, 1343, clearly states it applies extraterritorially. It does not. If it does not, then does the statute involve a domestic application by looking at the “focus.” Did enough sufficient conduct take place in the US that is the object of the statute. In an issue of first impression in the circuit, the 9th concludes the main focus of the statute is misuse of the wires to defraud. This aligns with the analysis of other circuits.  As for this case, there was sufficient evidence produced to support the convictions as wires were extensively used.

The decision is here:

Tuesday, August 25, 2020

US v. Lusby, No. 18-10368 (8-25-20)(Wallace w/Friedland & Lasnik). This is an interesting SORNA case. The 9th affirms the conviction but deals with (1) double jeopardy; and (2) “compelled travel.” To set the stage, the defendant was released from confinement in Arizona and ordered to appear at a hallway house in Las Vegas. He was transported to a bus station, bought a ticket, and put on the bus.  Once in Las Vegas, he didn’t show and was charged with failing to register under SORNA.

Defendant argued that he didn’t travel interstate voluntarily but was compelled to travel. He was taken from Nevada, and then ordered to return. The district court found that the interstate travel was not voluntary, and so dismissed the indictment. The government appealed.

On appeal, the defendant argued double jeopardy. The 9th reviews the double jeopardy doctrine, which we know requires in a bench trial for a witness to be sworn. But, here, the arguments and facts seemed straightforward, and the trial may not have mattered. “Ah,” said the 9th, the defendant was not at risk because this was not a “formal” trial; there may have been other facts brought forth, or the defendant may have been at risk of a different ruling. The opinion provides a good overview of DJ in the context of legal dispositive motions. The DJ discussion takes up the bulk of the opinion.

Turning to the merits, the 9th held that the statute did not have this extra element of the travel not being legally compelled. There is an affirmative defense of uncontrollable circumstances, but this differs because there was a legal compulsion (the order). The 9th looked at the statute, the plain language, and the desire for a national registration, and said “Naw.” The elements were set out; and the court’s carving out an exception for legally compelled travel contravenes the plain language of the statute. It also creates a loophole that could be exploited.

The decision is here:

Sunday, August 23, 2020

Case o' The Week: Of Form 12s and Aggravated Mopery - Cate and Challenges to Convictions via Supervised Release

Q: Is it a federal crime to possess a gun with a felony prior, after having been convicted of a state offense carrying a max term of three months? 

A: Close enough for government work (and a fifteen month supervised release violation sentence!)

  United States v. Cate, 2020 WL 4914049 (9th Cir. Aug. 21, 2020), decision available here.

 Players: Decision by Judge Tashima, joined by Judges W. Fletcher and Rawlinson.

 Hard-fought appeal by (former) AFPD Matt Campbell, Fed. Defenders of E. Wa. & Idaho (now the Federal Public Defender of the United States Virgin Islands).

Facts: Cate was convicted of § 922(g)(1): having a gun after being convicted of a Washington third-degree-assault conviction. Id. at *1. He was later charged with violating supervised release. While that Form 12 was pending, the Ninth held that the state offense of conviction had a maximum sentence of the state sentencing range (here, three months). Id. at *2 (discussing United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019).

  Cate moved to terminate supervised release, arguing that this change in law meant that the underlying state offense was no longer a felony. Id. at *1.

   The district court held that Cate couldn’t challenge his federal conviction through terminating supervised release: he would have to pursue a habeas motion under 28 U.S.C. § 2255. Id. at *2.

  Cate’s challenge was denied, he was violated, and sentenced to 15 months. Id.

Issue(s): “In [United States v. McAdory, 935 F.3d 838, 840–41 (9th Cir. 2019)], we applied Valencia-Mendoza to hold that a defendant's convictions under Washington law were not felonies for purposes of § 922(g)(1) . . . . Cate . . . relies on McAdory to argue that his Washington offense was not a felony for purposes of § 922(g)(1) because the sentence to which he actually was exposed was less than a year.” Id. at *3.

Held:Although this may be correct, the supervised release hearing was not the proper proceeding in which to challenge his underlying federal conviction.” Id. at *3.

  “[W]e agree with the district court that the validity of an underlying conviction cannot be challenged in a supervised release revocation proceeding.” Id. at *1. “Just as § 3583(e) does not authorize a district court to modify or rescind an allegedly illegal condition, it does not authorize a district court to vacate an allegedly illegal conviction. Instead, the underlying conviction must be collaterally attacked in a proceeding under § 2255, not in a supervised release revocation proceeding. . . . . In so holding, we join every other circuit to have addressed the question.” Id. at *3.

Of Note: Fifteen months custody in a COVID-infested federal prison, for a supervised release violation off of a federal conviction that isn’t actually a crime? Surely there are other equitable ways to skin this unjust cat?

The defense tried. It logically argued for a reduced sentence under § 3553(a)(1), since the defendant shouldn’t be on supervised release in the first place. Id. at *4. The district court was unmoved – and distressingly, so was the Ninth. Id. The Ninth concludes that the D.J.’s initial reference was a habeas path of relief was enough to check the sentencing box, and the custodial sentence was “reasonable.” Id.

Note some bad facts lurking beneath this decision, including a (probably drunken) vehicular manslaughter conviction that prompted the Form 12 in the first place. Id. at *1. Bad facts make bad law: Cate is a disappointing tolerance of supervision (and custodial terms for violations!) despite an unlawful underlying federal offense.

 How to Use: Judge Tashima concedes that this scenario is vulnerable to attack on direct appeal. Id. at *3 & n.2. And the tortuously slow road of habeas relief remains available as well. Id. at *1. Can a new Form 12 (and custody) be stayed while a quickly-filed § 2255 habe is litigated? Presumably (though unlikely that Cate’s DJ would have been so inclined given the reported outcome in this case).                                         

For Further Reading: Ten of the top ten COVID infection clusters in the United States are linked to correctional facilities. For a compelling editorial calling for decarceration, see Coronavirus cases in prison are exploding: More people need to be let out, available here.


Image of “three months” from



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




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Friday, August 21, 2020

US v. Cate, No. 19-30161 (8-21-20)(Tashima w/Fletcher & Rawlinson). The 9th reconfirms that the validity of an underlying conviction cannot be challenged in a SR proceeding. This holds even when the defendant may well be no longer guilty of the underlying offense. The defendant here was on SR because he was a felon in possession. The underlying felony, a third-degree assault, was subsequently determined under the state sentencing scheme to have a stat max of three months; thus, the defendant was not guilty of a felony. US v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019). The proper vehicle to challenge the conviction is a § 2255 habeas.  The circuits are unanimous on this approach. The 9th then held that the SR sentence was reasonable.

The decision is here:

1.  US v. Rodriguez, No. 16-50213 (8-20-20)(Nguyen w/Thomas & Wardlaw). The 9th affirms RICO and VICAR convictions for a defendant who acted as a “secretary” to a high-ranking member of a Mexican Mafia gang. Many issues raised, and this opinion provides a good overview of the instructions required for RICO and VICAR. One significant jury instruction issue is the membership purpose element under VICAR. Did a defendant join the organization or stay in it, as the but-for reason for her violent conduct; or was it a lesser “substantial purpose.” The argument looked to SCOTUS cases where mandatory minimums were triggered in drug cases for a “but for” purpose. See Burrage. The 9th rejected this argument, distinguishing Burrage, and following circuit precedent.  The 9th found that the dual-purpose testimony of agents (fact and expert) was not plain error. The 9th cautioned courts, though, to clarify to the jury what is lay witness testimony and what is expert, and the difference. The trial court erred in allowing expert testimony about the meaning of phone calls, but the error was harmless. Again, the 9th stressed the need for courts to take the gatekeeper function of Daubert and FRE 702 seriously.

Another spirited appellate case argued by Davina Chen, now a SRC.

The decision is here:

2.  US v. Berckmann, No. 18-10446 (8-20-20)(Owens w/Friedland & Nelson). The 9th affirms assault convictions arising from a national park in Hawaii. The defendant assaulted his wife with a dangerous weapon, and by strangulation during a camping trip. The 9th found no error in admission of prior domestic assaults under FRE 404(b) and 403. The prior assaults, in different states and times, provided evidence of a pattern and refuted the defense that the defense was joking around or simply trying to frighten the victim.

The decision is here:

3. US v. Lague, No. 18-10500 (8-20-20)(Wallace w/Nelson & Gwin).The 9th affirmed a conviction distributing drugs outside the normal course of medical treatment. The defendant was a physician’s assistant. He was charged with improper prescriptions for patients. The government introduced testimony from two of the five patients, medical records and files, lab results, and expert testimony. The government also introduced evidence of practice-wide over prescription of narcotic medications. The 9th found no error, as the admission under FRE 404(b) refuted the defense that the defendant had made” a few bad judgments.” The 9th also rejected the 403 argument. There was error in the court not examining all the prescription data before admission for prejudice, but the error was harmless.

The decision is here:

Thursday, August 20, 2020

1. US v. Valencia-Lopez, No. 18-10482 (8-19-20)(Bennett w/Hawkins; dissent by Owens). Note: This is an Az FPD case. The 9th vacated and remanded convictions for transportation and importation of marijuana. The defendant, a truck driver, argued he acted under duress; that the cartel forced him by threats to his family to transport 6000 k of marijuana. Over objections (pretrial and trial), the government called an agent to testify as an expert that the cartel does not operate that way and would never entrust this amount of drugs to a coerced driver.

Admission of the testimony was error and was not harmless. The 9th held that the district court did not properly fulfill its gatekeeping role under Daubert for two reasons: (1) it qualified an agent as an expert without explicitly finding that his proposed testimony about the likelihood of coercion was reliable, and (2) a “more important reason,” it admitted the agent’s testimony despite the government establishing no reliable basis for his expert testimony about the likelihood of duress in Mexico. The agent, in testifying that the chance that cartel would operate this way was “[a]lmost nil, almost none,” was without basis or expertise.  “Agent Hall never explained the methodology, if any, that he relied on to arrive at the near-zero probability of drug trafficking organizations using coerced couriers.” “It is one thing for a witness with Agent Hall’s expertise to testify as to the risks to a cartel of using a coerced courier. But that is a far cry from him essentially testifying that the cartel never does it.” “[G]iven his lack of experience within Mexico, and with no explanation of his methodology, “there is simply too great an analytical gap between” his experience and his conclusion.” The court could not just say it goes to the weight; the court must perform the Daubert reliability gatekeeper function. The errors were not harmless. 
Dissenting, Owens argues that the record for the agent’s background and experience was sufficient for reliability and Daubert admissibility. Thus, the lack of an explicit finding of reliability was harmless.

Congrats to Ryan Moore, AFPD, D. Arizona (Tucson) for the win. A shout out to the trial lawyers, AFPDs Elena Kay and Matei Tarail, for their pretrial and trial advocacy on the issue and making the record.

The decision is here:

2. US v. Swenson, No. 18-30215 (8-19-20)(M. Smith w/Bress; partial dissent by N. Smith).  This is a garnishment case. Under MVRA, the gov’t garnished the SSN funds of a spouse of a defendant convicted of wire fraud. The 9th tells the gov’t: “hands off!” The SSN funds belong to spouse in a separate account. The defendant had no property rights to spousal SSN.  This delineation was recognized by the state court (Idaho), which had ruled that the SSN Act conflicted with the state’s community property law. The SSN Act preempted state law. The MVRA does not override SSN or make an exception. Partially dissenting (joining on a jurisdictional issue), N. Smith argues that the focus should be on state law, and state law allows the defendant to have property rights, and therefore makes the SSN benefits garnishable, even though the spouse is innocent. The MVRN seeks to make a victim whole, and it is the statute to be followed.

The decision is here:

3. Kipp v. Davis, No. 15-99020 (Nguyen w/Paez and Murguia). The 9th affirmed the denial of capital habeas relief. The sentence imposed arose from murder, rape, and robbery. In considering the issues on appeal, the 9th kept returning to the overwhelming aggravated evidence, even, given the extensive mitigation case. Against this background, the 9th considered the claim that petitioner’s references to Satan in a letter reflected his beliefs, and that the introduction was solely to paint him as morally reprehensible. The 9th finds that the references to Satan in a letter were minor, and any error was harmless. Under AEDPA deference, the 9th held that a state court could reasonably have found no IAC. Last, the petitioner argued that extrinsic evidence was introduced when a juror brought a Bible into deliberations. The juror had read phrases (“an eye for an eye” for example). The test for extraneous evidence is whether extraneous evidence was introduced. If it was, then a two-step approach is whether it was possibly prejudicial; and then, if it possibly was (injurious to the defendant), there is a heavy presumption as to prejudice which the prosecutor has to rebut. Unexpectedly, and surprisingly, the circuits are split as to whether introduction of a Bible is extraneous contact. The 1st, 6th, and 11th Circuits have held it was extraneous evidence; the 4th said it was not (akin to quoting from memory. The 9th has sidestepped the issue previously, and did so here again. It considered the passages read not that inflammatory. The 9th also presumed the jury followed the court’s instructions. If there was any error, the error was harmless. 

Hard fought appeal by Deputy FPDs Celeste Bacchi, Mark Drozdowski, and Jennifer Turner , FPD Central District (LA).

The decision is here:

4. Kipp v. Davis, No. 16-99004 (8-19-20)(Paez w/Murguia; dissent by Nguyen). The 9th granted relief in this related case to #3. This was a separate murder and attempted rape. The 9th held that introduction of yet another unadjudicated  murder/rape  violated petitioner’s due process rights as the offenses were too dissimilar to be considered a pattern. Petitioner overcomes AEDPA deference because the state court misstated the facts as to the offenses and ignore petitioner’s evidence as to the differences between the offenses. Dissenting, Nguyen argues that the panel has no basis to consider the court ignored defendant’s evidence as to dissimilarity. Even if there was error, it was harmless.

Congrats on this win – a rare due process evidentiary issue under AEDPA deference -- by Deputy FPDs Celeste Bacchi, Mark Drozdowski, and Jennifer Turner, FPD Central District (LA).

The decision is here:

Sunday, August 16, 2020

Case o' The Week: Pro Se, A-Ok -- Engel and Parameters of Pro Se Representation

  Engel’s dialectic?

Mr. Todd Engel


United States v. Engel, 2020 WL 4519071 (9th Cir. Aug. 6, 2020), decision available here.

Players: Decision by Judge Bybee, joined by Judges W. Fletcher and Watford.  

Facts: Todd Engel traveled from Idaho to Nevada to impede a Bureau of Land Management (BLM) operation, related to the Bundy confrontation. See generally case description at blog on Bundy, here. Id. at *1. Wearing combat gear and armed with an AR-15, Engel stood on a bridge overlooking the BLM’s position. Id. No shots were ever fired. 

  He was charged with obstruction of justice and interstate travel in aid of extortion. A trial Engel successfully moved to represent himself and was appointed standby counsel. Id. at *2.

 Twenty-one days into the trial, Engel attempted to solicit from a government witness on cross that Special Agent Dan Love had been the subject of an investigation. Id. at *2. The court had previously rejected defense efforts to call Agent Love. Id. The district court sustained the government objection: Engel calmly apologized. Id.

   The government then moved for Engel’s pro se status to be revoked. The court, finding Engel was “smug” and “very proud of himself” for “sliding in” the question, agreed, revoked pro se status, and standby counsel came in. Id. Engel was convicted and sentenced to 168 months. Id. at *3.

Issue(s): “[Engel] contends that the district court violated the Sixth Amendment during his trial when the court terminated his right to represent himself and appointed standby counsel to represent him instead.” Id. at *1.

Held: “When viewed in comparison to these cases, the facts here do not support the district court’s termination of Engel’s right to represent himself. Unlike the defendants in [United States v. Mack, 362 F.3d 597, 599 (9th Cir. 2004) and Badger v. Cardwell, 587 F.2d 968, 971–73 (9th Cir. 1978)], Engel was not defiant and did not engage in   blatantly outrageous conduct, such as threatening a juror or taunting the district judge. To the contrary, Engel merely asked a question prejudicial to the government. When the government objected, Engel remained calm and ultimately acquiesced in the court’s decision to revoke his right to self-representation.” Id. at *4. 

 “We hold that Engel’s conduct was not sufficiently disruptive to justify termination of his right to self-representation. Because this is a structural error, we vacate Engel’s conviction and remand for a new trial.” Id. at *1.

Of Note: What is the standard of review, when a defendant claims on appeal that his Sixth Amendment right to self-representation was violated? There’s a split: five circuits have held it is de novo review, while the Seventh has held the issue is reviewed for abuse-of-discretion. Id. at *3.

  Judge Bybee explains that the Ninth Circuit hasn’t yet decided the S.O.R., and “[b]ecause we think the result in this case is the same under either standard, we need not resolve this split in authority.” Id. at *3.

  Note this issue for future Sixth Amendment / pro se cases: the standard of review remains up for grabs in the Ninth.

How to Use: How disruptive must a pro se defendant be, to have self-representation yanked? Judge Bybee works through a set of fact patterns where the Ninth upheld the court’s pull of pro se status: heated discussions with the judge, threats to a juror, and specific violations of a court order. Id. at *4. This same discussion reports conduct that is not enough: nonsensical pleadings, occasionally uncooperative, wearing prison garb in front of the jury, and lack of familiarity with the rules. Id. By comparison to these cases, Engel’s conduct in this trial was “tame.” Id. at *5. When dealing with a pro se client, Engel is a useful catalog of the conduct that crosses the line and can bump you from standby counsel to trial counsel.                                              

For Further Reading: Last week President Trump announced his intent to nominate a five Sentencing Commissioners. See press release here

Four of the five nominees are former federal prosecutors, who are on record favoring (significantly) higher custodial sentences. See, e.g., “Hang ‘em High” federal judge makes no apologies, here

Will the current Senate get around to confirming this daunting crew? The guideline ranges for our future clients, for many years ahead, hinge on whether these five nominations get crammed through the current Senate before it ends on January 3, 2021.   



Image of Mr. Engel from .


Image of “Hang ‘em High” movie poster from


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




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Tuesday, August 11, 2020

Note: the two cases (and two wins) were both from the Arizona FPD Office.

1. US v. Fuentes-Galvez, No. 18-10150 (8-10-20)(Sessions w/Fletcher & R. Nelson). The 9th reversed and remanded a conviction and sentence for egregious errors in the change of plea. The defendant plead guilty to illegal reentry, 8 USC 1326. The 9th considered the Rule 11 change of plea hearing and colloquy truncated, incomplete, and meeting plain error standards. The magistrate judge failed to adhere to the requirements of Rules 11(b)(1)(D), (E), (G), (M) and Fed R Crim P 11(b)(2). The magistrate judge omitted standard Rule 11 inquiries while combining others. The court critically failed to ask about the defendant’s competency or understanding, whether the plea was knowingly and voluntarily given, whether he was under the acre of a physician or taking medications, or whether he understood his attorney or was satisfied with counsel. The court did not discuss the guidelines, clearly inform the defendant of certain constitutional rights, or that counsel could be with him at trial. The court further did not address whether his plea resulted from force or threats. The magistrate court accepted the plea and recommended to the court to accept it. The court accepted the plea but rejected the agreement for guideline errors. The district court then rejected a revised plea. The defendant then pled without an agreement. The district court did not engage in a colloquy about the plea to the charge. The court sentenced him to 42 months, a sentence a year longer than top of the guidelines range.

The 9th found the change of plea lapses prejudicial. The 9th found violations with Rule 11; it questions the voluntariness (as the district court accepted the straight up plea). The defendant had little schooling, a history of mental health disorders, including PTSD, depression, and anxiety. He also had medical physical ailments. There was a reasonable probability that the errors affected his decision to plead guilty. The 9th rejected the government’s arguments that the court did ask if the plea was voluntary and the defendant said “yes;” the court could evaluate the defendant’s demeanor; and the defendant could have consulted with counsel. For the 9th, the errors were too much to have confidence that the plea was voluntary.

One of our appellate lawyers (Ryan Moore) with Lee Tucker (the winning advocate) raise this question as to the interplay between the rules and voluntariness: What extent does the opinion create an exception, or at least wiggle room, where the Rule 11 error was an inadequate colloquy, as to whether the plea was knowing and voluntary, to the usually insurmountable hurdle under the third plain-error prong in United States v. Dominguez Benitez, 542 U.S. 74 (2004), that “a defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea”? Now, if a plea was even potentially not knowing and voluntary (due, e.g., to relatively unremarkable medical or language factors), an inadequate colloquy alone satisfies that burden. See op. (“Fuentes-Galvez showed that there was a reasonable probability that the error may have affected his decision to plead. See United States v. Monzon, 429 F.3d 1268, 1272 (9th Cir. 2005). Under the totality of the circumstances, the lower court’s failure to make further inquiries created a significant enough risk of overlooking potential involuntariness to meet this burden.”)

Congrats to Lee Tucker, AFPD, D. Ariz (Tucson).

The decision is here:

2. US v. Oriho, No. 19-10291 (8-10-20)(Tallman w/Siler & Hunsaker). The defendant was charged with fraud; the monies allegedly sent to banks in Africa. Can the Court order the defendant to repatriate the funds “out of Africa” to preserve the funds for potential forfeiture. (We are talking about $7,287,000). The 9th vacates the order to repatriate as violating the Fifth Amendment right against self-incrimination and remands for an evidentiary hearing.

The defendant is alleged to have committed healthcare fraud in an extensive indictment. The indictment specifically alleges two transfers to two banks in Uganda and Kenya, totaling $760,000. The government though says it can prove that $2,400,000 was wired to Africa since 2016.  Trust us, says the government, we can trace it. And order the defendant to contact the banks, and any other banks in Africa to return (repatriate) the funds. The government said that it wouldn’t divulge how the funds were returned to the jury. The court granted the order. The defendant took an interlocutory appeal.

The 9th held (1) that interlocutory was appropriate; and (2) that the court’s order was overbroad and the government’s limited immunity and assurances too narrow.  By forcing the defendant to repatriate the funds, basically under a restraining order, the government was violating the 5th Amendment right against self-incrimination. The order would force the defendant to identify and demonstrate his control over untold funds squirreled in bank accounts unknown to the government. The court, the 9th concluded, failed to apply the proper “foregone conclusion” test; that is, the government already knew where the funds were, amounts, dates and places.

Looking at the 5th Amendment, in this first impression context, the 9th held that the protections extended to the repatriation for forfeiture.   In Fisher v. US, 425 US 391 (1976), the Supreme Court set forth a four part test to see if the 5th was implicated: (1) compulsion is involved; (2) a statement is being communicated; (3) the statement relies on the truthfulness of the defendant; and (4) the statement carries a risk of self-incrimination. Examining each in its turn, the 9th concludes that the 5th’s privilege is invoked.

This contrasts with Doe v. US, where the Court upheld a consent directive to banks. The distinction is that the consent directive there was hypothetical, and it rested upon the government to find the banks. In contrast here, repatriating the funds points the way to the banks where other evidence may be found; and where links in chains can be forged.

Congrats to Dan Kaplan, AFPD, D. Ariz (Phoenix) for the appellate win (the “first impression” was a good first impression); and Zack Cain, AFPD, Phoenix, for setting the issue, framing it, and extensively briefing it as a 5th Amendment violation. 

The decision is here:

1. US v. Bundy, No. 18-10287 (8-6-20)(Bybee w/Fletcher & Watford). In this high-profile prosecution, the 9th affirmed the district court’s dismissal of charges with prejudice due to the government’s extensive, egregious, and flagrant Brady violations.

Congrats to Amy Cleary, Cristen Thayer, and Ellesse Henderson, AFPDs, Nevada (Las Vegas).

The decision is here:

2. US v. Engel, No. 18-10293 (8-6-20)(Bybee w/Fletcher & Watford). The district court erred when it stopped the defendant from his pro se representation and appointed stand by counsel to continue. The defendant’s actions were not disruptive; he did not flout court orders; at worst he asked a question prejudicial to the government. Even though the interruption was for a short time, it still violated the right to self-representation under Faretta. As the error was structural, the convictions for obstruction and interstate extortion were vacated and the case remanded for a new trial.

The decision is here:

US v. Kuzma, No. 18-10042 (8-3-20)(Collins w/Paez & Choe-Groves). The 9th rejects an unconstitutional vagueness challenge to the statutory definition of “machinegun.” The machinegun here was just the receiver, and it was nonoperable.  However, it could be made operable; critically, the receiver was missing a blocking bar that stopped the automatic firing. The defendant, when questioned, did make unfortunate comments (e.g. “I have a machinegun”); however, the defendant argues that the bar would have been placed in if the receiver was sold. The argument on appeal was that the statutory language, 26 USC 5845, was vague since there was a subjective intent to whether the receiver could be made to shoot. The 9th looked to the objective features – whether it was designed, and could be readily adapted, to shooting. The 9th rejected the as-applied challenge and the sufficiency of evidence challenge.  Any evidentiary errors to the possession count, 5861, were deemed harmless. The 9th did vacate a lesser included conviction under 922(o)(possession of a machine gun) as the conviction under 5861(d) was possession of an unregistered machine gun.

Davina Chen, as CJA, fought hard on this appeal. 

The decision is here:


US v. Bocharnikov, No. 19-30163 (7-27-20)(Bybee w/VanDyke; concurrence by Chhabria). The 9th reverses the denial of a suppression motion for inculpatory statements. The issue was whether a second interview, and confession, was tainted by the illegality of the first due to a Miranda violation.

The defendant was arrested (in his home) without a warrant. Without Miranda warnings, handcuffed, in boxer shorts, surrounded by three sheriffs, the police questioned the defendant about aiming a laser at aircraft. He admitted he did, not thinking it would shine that far up. He gave up the laser. Then, nothing happened. A month later, the County Sheriff turns the matter to the FBI. Eight months later, the FBI, concerned with the no Miranda warnings at the first interrogation, has a second interview.  The agent, and later his partner, go to the defendant’s house, and speak to him on the street. The agent starts by saying this is a “follow up” to the first interview. The government concedes there was a Miranda and other violations.

The 9th engages in an attenuation analysis under Brown v. Illinois, 422 U.S. 590 (1975). Did the taint of the first illegal questioning link it to the second? The 9th holds it did. There is a three-part test: (1) time span; (2) intervening circumstances; and (3) flagrancy of the misconduct.

The government argued that passage of 8 months was enough. The 9th noted that though 8 months is lengthy, the key is the agent’s stating that his second interview was a “follow up.” It connected the second to the first. The 9th found, for the second factor, that no intervening circumstances arose. No Miranda warnings were ever read: the first or the second time.  The defendant could have assumed that all was well. Last, there was no flagrant misconduct. As the case is presented, the second statement must be suppressed.

The concurrence by Chhabria grudgingly agrees, taking the government to task for apparently conceding there were violations. Had the government analyzed the violations separately, there may have been no need for attenuation analysis, as Oregon v. Elstad, 470 U.S.298 (1985) would likely control; the statements were voluntary; and warnings not required as no arrest. Likewise, if arrested with in the house without a warrant but with probable cause, then no attenuation was required. Attenuation is only required if arrested in the house without probable cause. The concurrence chides the government, stating that the court cannot do the work of the government and won’t bend over backwards.

Congrats to Conor Huseby, AFPD, D. Oregon (Portland).

The decision is here:




US v. Moran-Garcia, No. 19-50134 (7-23-20)(Kleinfeld w/Nguyen & Pauley). A venue win!  The defendant was caught in boat, with others, 6 miles off of San Diego. The city’s twinkling lights could be seen. He was charged with attempted illegal reentry. The Court denied the Rule 29 motion for failure to prove venue and denied a jury instruction because the Rule 29 decided the issue. Twice wrong.

First, the government argues venue existed 12 miles out to sea. This was wrong (“The government attorney gave bad counsel to the district court.”) The State’s County of San Diego extends “three English miles,” not twelve (int’l), and so the Southern District of California only extends to the border of San Diego County.

Second, the government argues that venue was a legal matter. It is not an element of the offense, but it is a jury question with constitutional dimensions. The government must prove it by a preponderance. The court erred in not giving the instruction.

Maybe the third time is a charm?  On appeal, the government raises harmlessness. Six miles out, with San Diego’s lights twinkling, where else could the boat have gone? Well, says the 9th, up the coast. It is not completely absolutely certain that the boat was headed for the SD Ca. One could argue, infer, and prove by a preponderance, but it is not harmless. The argument that venue is proved because it is where the defendant first appeared is colorable. However, the evidence was never presented to the jury.

The conviction is vacated and remanded with instructions to dismiss without prejudice. A retrial is not necessarily barred. The 9th does note that collateral estoppel is within the court’s discretion if raised.

Congrats to Doug Keller, Fed Defenders of San Diego, for the nice win. 

The decision is here:

US v. Shehadeh, No. 18-10399 (6-18-20)(R. Nelson w/Siler & Bybee). This is an opinion that decides whether the 14 days to file an appeal runs from the entry of judgment or the entry of amended judgment that contains the restitution amount. The 9th holds that it runs from the amended judgment, which contains the restitution amount. The Supreme Court had held that an appeal filed in the 14 days after the judgment could not spring forward to also be an appeal for an amended judgment including restitution. However, this does not bar a defendant waiting for the amended judgment to file an appeal for the conviction and restitution. The defendant can either file an appeal after judgment or wait. If he files an appeal from the conviction, and then an amended judgment issues with restitution, the defendant has to file an appeal for the restitution.

The defendant had moved to withdraw his guilty plea before the amended judgment issued. The 9th holds that the district court erred in concluding it had no jurisdiction. It did. The amended judgment had not yet issued. The court could allow withdrawal for a fair and just reason. However, the error was not plain.

The decision is here:

2. Rose v. Guyer, No. 18-35630 (6-18-20)(N. Smith w/M. Smith & Bress). The petitioner had gotten habeas relief for IAC through failure to present a plea agreement. Habeas relief instructed the State to reoffer the plea. It did, with two changes. The state court rejected the plea because the petitioner had not accepted responsibility. The imposed sentence was still life. The petitioner than sought release under failure of the State to follow the mandate. The 9th rejected this. The changes in the plea was to void an illegal term, allowed the State to recommend a sentence, and other terms. All of these the 9th found did not change the gist of the plea.

The 9th dismissed the appeal for lack of jurisdiction because a COA did not issue under Rule 70. Rule 70 allows a petitioner to seek enforcement of a conditional writ of habeas. The 9th holds that COA is required under Rule 70. It justifies the requirement because it is entangled with habeas merits and is not a separate issue.  The 9th then concludes that reasonable jurists would not disagree with the state court’s and district court’s rulings.

The decision is here:

3. States v. Davis, No. 17-99008 (6-18-20)(Graber w/Friedland; dissent by Berzon). In affirming the denial of a capital habeas petition, the 9th finds that IAC occurred but it was harmless. The petitioner was convicted and sentenced to death for the murder of his parents. Trial counsel argued that someone else did it. He pointed at the inconsistencies in witness testimony and evidence. Yet, he ignored relevant evidence that a certain local gang did it. There was evidence that five gang members had appeared to brag or claim credit for the murder. Defense counsel did not call any of the witnesses, nor seek evidence linking the gang to the murders. The 9th found this was IAC; but it was harmless given the other evidence. Counsel was not ineffective for not calling a gang expert to rebut the State’s evidence that it was not a gang shooting.

Berzon dissented. She would hold the evidence was prejudicial. She would find that even under AEDPA, a finding of harmlessness was unreasonable.

The decision is here:

US v. Jaycox, No. 19-10077 (6-16-20)(Restani w/Hawkins & Paez). The 9th reverses a sentencing enhancement in a receipt of child porn conviction. The defendant has a California prior sex offense of sex with a minor (under 18) with an individual at least three years older. The district court found that this prior conviction fit an enhancement for abusive sexual conduct and so increased the mandatory minimum and maximum.  The court did depart downward from the guidelines to a 240 month sentence.

The 9th held that this prior conviction was not a categorical match with the federal sexual abuse statutes as the sex with a minor could be consensual. The 9th distinguishes US v. Sullivan, 797 F.3d 623 (9th Cir. 2015), where the conduct was with a minor under 16, and the perpetrator 21 or older. In this instance, the conduct could involve a minor just shy of 18 and a perpetrator just over 21. This is not a categorical match; nor does it fall under the “relating to” languages which broadens the approach beyond the element to element match. The conduct is still possibly nonabusive as the courts have analyzed it.

The error results in a resentencing. Although the court did depart, it departed from a higher stat min and state max, and the consideration in sentencing may be different.

Congrats to Carolyn Wiggins, AFPD, Cal E. (Sacramento).

The decision is here:

US v. Kelley, No. 19-30066 (6-15-20)(Ikuta w/R. Nelson & Oliver). This is an important First Step Act decision. The 9th holds that a resentencing under First Step (crack disparity) does NOT permit a plenary resentencing proceeding in which a defendant’s career status can be reconsidered. The 9th concludes that the Act allows a defendant sentenced for a crack offense to move the court to “impose a reduced sentence as if the First Step Act had been in effect and gives the court discretion to do so. The 9th interprets the Act as only allowing a narrow counterfactual resentencing.

The defendant had argued that (1) the statute’s language fell under 3582; and (2) the Act’s use of “impose” a sentence grants authority for a plenary resentencing. The 9th rejects the arguments. The 9th holds that the specific controls over the general in the First Step Act text; and that “impose” is out of context and not plausible.

This decision “deepens” a circuit split. The 9th joins the 5th and 6th Circuits in their analysis. The 4th Circuit would allow a plenary resentencing. Thus, be aware of this split, calling for SCOTUS review.

Sadly, the defendant’s priors which had made her a career offender had been found not to qualify under a categorical approach.

Matt Campbell, Fed Def of E. Wa. & Idaho (Spokane) made a valiant effort on appeal.

The decision is here:

Sunday, August 09, 2020

Case o' The Week: Ninth Unmoved by Government's Sniping - Bundy and Dismissal of an Indictment for Flagrant Brady Violations

Bundy's discovery demand for evidence of covert video surveillance, and of federal snipers surrounding his ranch, was a “fantastical fishing expedition,” scoffed the AUSA.

Mr. Cliven Bundy

(After which the government produced the evidence of covert video surveillance, and federal snipers surrounding the Bundy's ranch).

 United States v. Bundy, 2020 WL 4517572 (9th Cir. Aug. 6, 2020), decision available here.

 Players: Decision by Judge Bybee, joined by Judges W. Fletcher and Watford. Big wins for AFPDS Amy Cleary, Cristen C. Thayer, and Ellesse Henderson, D. Nevada FPD.

Facts: “This case stems from an infamous standoff between Cliven Bundy, his sons, and groups of dedicated followers and [the Bureau of Land Management.”] Id. at *1. After years of warnings about illegal grazing on federal lands, agents seized roughly 400 head of Bundy’s cattle. Id. at *3. Bundy called for support on social media and to militia groups, expressing fear of federal “snipers” that surrounded their home. Id. Hundreds of supporters responded. When Bundy’s ranks swelled to more than 400, the feds stood down and the cattle were recovered. Id.

  Bundy and others were charged with, among other things, falsely deceiving their armed followers into believing that the Bundys feared for their lives because government snipers surrounded their ranch. Id. at *4. As the case was tried, discovery produced in “dribs and drabs” revealed that government snipers had in fact in fact surrounded the ranch. Id. at *4-*5.

  After a series of hearings on these late Brady disclosures, the Honorable District Judge Gloria Navarro ultimately declared a mistrial and dismissed the indictment with prejudice. Id. at *7. The government appealed.

 Issue(s): “The question presented in this case is whether the government’s actions were sufficiently egregious to merit dismissal with prejudice.” Id. at *8.  

 Held: “The district court can dismiss an indictment under its supervisory powers (1) to implement a remedy for the violation of a recognized statutory or constitutional right; (2) to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; and (3) to deter future illegal conduct. . . These prerequisites are met here.” Id. at *21 (quotations and citation omitted).

  “Finding no abuse of discretion, we affirm the judgment of the district court.” Id. at *1.  

 Of Note: The procedural posture is important in this valuable Brady decision. There was no verdict, so the Ninth did not employ the traditional (lousy) retrospective analysis and ask whether the evidence would have affected the jury’s verdict. Id. at *10. Instead, the Ninth looked at the case up to the point of the dismissal.

  Bundy inadvertently illustrates the fatal flaw of our current Brady law: had this case been reviewed retrospectively, post (guilty) verdict, these egregious violations would have probably not cost the government the case. See blog entry here  (discussing Sudikoff and the structural problems with current discovery review).    

 How to Use: Dodging responsibility for its Brady errors earned the government these severe sanctions. See id. at *20. As Judge Bybee chides, “We note the government’s failure to acknowledge and confess any wrongdoing during the course of this case—especially as to material misrepresentations to the district court about the presence of snipers. Rather than accepting responsibility, the government blamed the defense for not requesting more specific information. Even in its motion for reconsideration, the government continued to maintain that it never had an obligation to turn these documents over and that any omission on the government’s part was the fault of the defendants for not doing a better job of showing why this information was relevant. Only on appeal has the government admitted that it should have turned these documents over.” Id. *20. That recalcitrance supported the need for this dramatic sanction – that will “serve to deter future prosecutions from engaging in the same misconduct as occurred here.” Id. 

  Wave Bundy about when your AUSA minimizes Brady violations in your case: the opinion makes clear that the less responsibility taken by the government, the more potent the discovery sanctions must be.                                              

For Further Reading: With the Obagi Brady / Giglio decision just weeks ago, followed by this Bundy bombshell, it is clear that the “epidemic of Brady violations” in the Ninth has still not yet abated.

   For a thoughtful piece discussing this ongoing problem (and the Bundy case specifically), see Henry Glass, Cliven Bundy case: How big a problem is prosecutorial misconduct, Christian Science Monitor, available here




Image of Cliven Bundy from


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





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