Sunday, October 25, 2020

Case o' the Week: Ninth Delivers Intent-ional Reversal -- Alhaggagi and Specific Intent for Terrorism Enhancement in Material Support cases

By simple "cause and effect," one who works with terrorists is necessarily motivated to intimidate or coerce the U.S. government -- right?

Mr. August Gugelmann and Ms. Mary McNamara

Nope: not in the Ninth. 

United States v. Alhaggagi, 2020 WL 6192982 (9th Cir. Oct. 22, 2020), decision available here.

Players: Admirable decision by Judge Milan Smith, joined by District Judge Ezra.

Dissent by Judge Hurwitz.

Huge win after epic district court and appellate battles, for ND Cal CJA Panel attorneys August Gugelmann and Mary McNamara, Swanson & McNamara LLP.  (Note that Mary is also our Northern District CJA Liaison Attorney, as well as the Ninth Circuit's CJA representative to the national Defender Services Advisory Group).

 Facts: Twenty-one-year old Alhaggagi trolled Shia and Sunni users of group chats on the internet, provoking fights between the two. Id. at *2. He bragged about plans to commit terrorist acts, and his “chat persona” made extravagant claims such as like having access to bazookas. Id. 

This chatter drew the attention of the FBI, who arranged a meeting with an undercover agent. The pair discussed bombs, but Alhaggagi got cold feet and cut off communications with the agent. Id. at *3.

  Alhaggagi then began chatting online with ISIS supporters. Id. On two occasions, Alhaggagi agreed to open social media and email accounts for these ISIS members. Id. These accounts were later used by an ISIS propaganda organization to report ISIS attacks in Iraq. Id.

   After Alhaggagi was charged he plead open to, among other counts, attempting to provide material support to a designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1). Id. at *4. The PSR put his offense level at 26, with a guideline range of 46-57 months. Id. The government argued for a “terrorism enhancement,” that skyrocketed the offense level to 38: a range of 360-564 months. Id.

  After a two-day evidentiary hearing, the court imposed the terrorism enhancement. Id. at *4.

 Issue(s): “[W]e consider whether the district court abused its discretion in applying the terrorism enhancement in sentencing Alhaggagi.” Id. at *5.

   “The [ ] question is whether Alhaggagi’s conduct satisfies the first prong: whether his attempt to provide material support to a terrorist organization by opening social media accounts was ‘calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.’” Id. at *7.

 Held: Alhaggagi contends the district court erred in applying the terrorism enhancement because it centered its analysis on ISIS, not on Alhaggagi’s conduct or mental state. The enhancement, Alhaggagi argues, specifically requires the district court to consider the latter, whereas the offense itself implicates the former. Alhaggagi concludes that because the district court failed to determine whether he knew how the accounts he opened were to be used, it could not find that he specifically intended that the accounts be used to coerce or intimidate a government. We agree.” Id. at *7.

   “The district court did not make sufficient factual findings concerning Alhaggagi's knowledge of how the accounts he opened were to be used. Although Alhaggagi participated in a chatroom replete with posts praising ISIS, denouncing the United States, and planning ‘to kindle strife and chaos’ in the United States through Twitter, there is no evidence that Alhaggagi saw those posts, opened the accounts because of those posts, or had contact with the authors of the posts . . . .” Id. at *9.

  “We therefore conclude that clear and convincing evidence does not establish Alhaggagi opened social media accounts calculating that they would be used to retaliate against government action, and the district court erred by applying the sentencing enhancement.” Id. at *10.

 Of Note: Judge Milan Smith, nominated by President Bush, authors this brave decision reversing a terrorism enhancement. 

  By contrast, Judge Hurwitz (nominated by President Obama) authors a vigorous dissent that would uphold the district judge's imposition of the enhancement. See id. at *11.

The Honorable Judge Andrew Hurtwitz

 Alhaggagi again illustrates that politics can be a lousy predicator of a jurist’s particular vote in a criminal case.

How to Use: This great mens rea decision demands that the government meet a high evidentiary burden to show Alhaggagi’s intent. Id. at *6. Turn to Alhaggagi when specific intent is required in a guideline enhancement.

For Further Reading: For more background on this fascinating case, and a report on this high-profile NorCal sentencing hearing, see, California man sentenced to more than 15 years in ISIS support case, available here.



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




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Thursday, October 22, 2020

US v. Alhaggagi, No. 19-10092 (10-22-20)(M. Smith w/Ezra; dissent by Hurwitz). Should providing social media accounts for ISIS sympathizers trigger a GL enhancement under 3A1.4? Not in this case, explains the 9th, because there must be proof that providing as “material support” was intended to intimidate, coerce, or retaliate against government conduct. The GL enhancement, distinct from the conviction, requires a federal crime of terrorism; and the defendant’s specific intent. Here, the majority concludes, the court failed to make sufficient findings that the defendant specifically knew what to use his social media accounts would be used. The government had to carry the burden by clear and convincing evidence (it was a difference of 46-57 months to 360 – 564 months). The court’s failure to make the findings that supported such an increase was an abuse of discretion. (The court had departed down to 188 months – the govt asked for 396 months).

Dissenting, Hurwitz focuses on the standard of review of “abuse of discretion.” Hurwitz would find a sufficient record in the district court’s inferences that the defendant knew what ISIS would make use of his accounts to pressure or retaliate against the government. This was not an abuse of discretion. Hurwitz does acknowledge the district court could have come out the other way; but the abuse standard of review is a high one.

The decision is here:


Sunday, October 18, 2020

Case o' The Week: Battle of the Bulge -- Bontemps, Terry and Reasonable Suspicion from "Gun Bulges"

 “Gun” bulge spotted?

Laissez les bon temps rouler (for the cops, that is . . .).

United States v. Bontemps, 2020 WL 6040044 (9th Cir. Oct. 13, 2020), decision available here.

 Players: Decision by Judge Bress, joined by Judge R. Nelson. Compelling dissent by D.J. Gwin. Hard-fought appeal by ED Cal AFPD Ann C. McClintock.

 Facts: At 3:51 pm, Vallejo cops saw four African American men walking on a road in a mixed commercial / residential area. Id. at *1. One detective claimed to have seen what appeared to be a concealed gun in the pouch pocket of the sweatshirt of a man named, “Mills.” Id. A different officer, Detective Tonn, claims to have seen a “very obvious bulge” on the left side of a man named Bontemps. Id. The bulge was just above Bontemps waist area, halfway between his waist and armpit. Id. at *2. Detective Tonn believed Bontemps was carrying a concealed gun.

  The detectives stopped the men, found a gun in Mills’ pocket, and a Glock in a shoulder holster on Bontemps’ left side. Id.

  Bontemps was charged with § 922(g) and brought a suppression motion. After an evidentiary hearing, the court denied the motion, finding reasonable suspicion for the stop. Id.

   Bontemps entered a conditional plea that reserved his right to appeal the district court’s denial of his motion to suppress. Id. at *3.

 Issue(s): “Police detained Tamaran Bontemps after observing a bulge under his sweatshirt that likely indicated a concealed firearm, which is presumptively unlawful to carry in California. After searching Bontemps, a convicted felon with an outstanding felony warrant, police determined he was carrying a loaded gun in a shoulder holster. The question in this case is whether police had reasonable suspicion of illegal conduct sufficient to justify the stop.” Id.

 Held: “We hold that the district court did not clearly err in crediting an officer's testimony that he observed on Bontemps a ‘very large and obvious bulge’ that suggested a concealed firearm. We further hold that reasonable suspicion supported the stop. The district court therefore properly denied Bontemps's motion to suppress evidence found during the search.” Id. at *1.

 Of Note: In a compelling dissent, District Judge Gwin questions the “reasonable suspicion” for this mid-afternoon stop, when there was no criminal activity and the detective only saw “a non-descript sweatshirt bulge.” Id. at *7. The DJ details the inconsistent testimony in the detectives’ accounts, and questions the use of bodycam footage that did not show Bontemps as he looked at the time of the stop. Id. at *9. He concludes, “A sweatshirt bulge alone, especially one as non-descript as here, and without any associated suspicious conduct or circumstances cannot create a reasonable suspicion of criminal activity.” Id. at *10.

  Given Black Lives Matter and the growing societal awareness of the reality of race-based stops, it is disappointing to see the Ninth expand the “bulge” bases to permit the stops of black men who are not engaged in criminal activity, who are walking on a public street in the middle of the afternoon (an unwritten but obvious concern animating DJ Gwin’s dissent). 

   Read Judge James Gwin’s dissent for remarkable stats on how infrequently “bulge” searches actually produce guns, id. at 11. Statistically speaking, “bulge searches” are just pretexts to justify deeply troubling stops.

 How to Use: Wait – isn’t there a whole line of good law rejecting reasonable suspicion as a basis to search for “drug bulges?”

  There is indeed. See, e.g., United States v. Job, 871 F.3d 852, 861 (9th Cir. 2017).

  Judge Bress is “mindful” of concerns about stops based on “gun bulges,” but goes on to try to distinguish the “drug bulge” search caselaw from the Ninth’s new tolerance of a “gun bulge” exception. Id. at *5. Putting aside whether that is a convincing distinction, beware there are new “bulge” categories that appear to now exist in the Ninth: drug bulges are not sufficient, but “gun” bulges (may) establish reasonable suspicion for a stop and Terry pat-down.

 For Further Reading: Terry and its progeny rely on cops’ “common sense.” For a great article providing “empirical data that can substantiate or call into question the predictive value of these ‘common sense’ facts,” and calling for courts to “adjust their perceptions accordingly” when reviewing Terry stops, see Terry Stops-and-Frisks: The Troubling Use of Common Sense in a World of Empirical Data, available here.



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Wednesday, October 14, 2020

US v. Kroytor, No. 19-16459 (10-14-2020)(Hunsaker w/Miller & Schiltz). This is a coram nobis case. The 9th denies the claim because the petitioner, facing removal, waited two years before seeing to get out of his guilty plea based on IAC (bad advice). The advice was that if the person paid restitution (health care fraud) and did not serve time, he could hide his agg felony conviction from immigration. This was obviously wrong. Indeed, the poor petition – a LPR from Canada – went through a series of lawyers who gave misleading advice, wrong counsel, or just dropped the ball.  Still, he had counsel when Padilla was decided, and the issue of retroactivity under Kwan (9th Cir precedent) allowed the extraordinary writ. Petitioner’s counsel fretted that the law was unclear and did not file for two years. This delay proved fatal. As the  9th writes: “Uncertainty in the law itself does not justify delay in filing a writ of coram nobis petition where such uncertainty does not prevent a petitioner from reasonably presenting a claim for relief.” (13).

Ben Coleman ably represented him on appeal in this sad case.

The decision is here:

US v. Bontemps, No. 19-10195 (10-13-20)(Bress w/Nelson; dissent by Gwin). This is a Terry stop decision. The majority affirmed the district court’s denial of a suppression motion. The majority holds there was no clear error in a Terry stop based on an officer observing a bulge under a sweatshirt. The majority concluded that an officer, under the totality of circumstances, had reasonable suspicion to conclude that a noticeable bulge under a sweatshirt could be a weapon in a shoulder holster. In California, carrying such a concealed weapon may be unlawful. The defendant, when stopped, was a prohibited possessor.

Dissenting, Gwin argued that a sweatshirt bulge, without other corroborating evidence, did not satisfy objectively reasonable and particularized suspicion that would support a Terry stop.

Hard fought appeal by Ann McClintock, AFPD, Cal E (Sacramento).

The decision is here:

Monday, October 12, 2020

Case o' The Week: The Ninth's Pending Decision - Pacheco Pacheco and Statutory Interpretation

    “Deported” to Duluth? 

    A Black’s and white statutory interpretation case, for the Ninth.

United States v. Pacheco Pachecho, 2020 WL 5902923 (9th Cir. Oct. 6, 2020), decision available here.

 Players: Decision by visiting WD Ark. DJ Dawson, joined by Judges Graber and Bress. Hard-fought appeal by D. Az. AFPD Keith Hilzendeger.  

 Facts: Section 22465(A) of Title 18 prohibits sexual abuse of a ward, who is in “official detention” “pending deportation.” Id. at *1. Pacheco worked at a shelter housing unaccompanied noncitizen children. Id. He was charged under § 22465(A), for sexual contact with these minors. Id. at *2. An official testified at trial that the minors had been served with a Notice to Appear in Immigration courts, and that their cases were in the process of being adjudicated. Id.

  In reality, however, all of the minors were later placed with U.S. sponsors: none were ultimately deported. Id. 

  Pacheco’s Rule 29 motions argued the minors were not “pending deportation” within the meaning of the statute. Id. Those motions were denied and Pacheco was convicted.

 Issue(s): “To establish federal jurisdiction under the statutes of conviction, the victims must be in ‘official detention’—a term that extends to detentions ‘pending . . . deportation.’ 18 U.S.C. § 2246(5)(A). Pacheco contends that his convictions should be vacated because the government presented insufficient evidence to demonstrate that the minors were in official detention. In Pacheco's view, a person is ‘pending deportation’ only if he is awaiting actual removal from the United States following a final order of removal.” Id. at *1.

Held:We hold that, under 18 U.S.C. § 2246(5)(A), the phrase ‘pending ... deportation’ does not require a finding of actual or inevitable removal from the United States. Instead, it is sufficient that, as here, the government had initiated removal proceedings against the minors, even though those proceedings were unresolved and the minors therefore did not face a certainty of deportation. Because the government presented testimony establishing that the minors in this case had been served with Notices to Appear in Immigration Court and were placed into removal proceedings that created the possibility of deportation, the statute’s jurisdictional element was met.” Id. at *1.

Of Note: Pacheco rejected a six-year deal before trial. He then received a nineteen year sentence after trial. This whopping 300% trial penalty is reported in a concurrently-filed mem dispo, where the big legal battles in this case are resolved. See United States v. Pacheco, 2020 WL 5910103, (9th Cir. 2020) (mem.) 

  In the mem dispo, the Ninth tolerates a government “expert” forensic examiner specializing in child abuse, and rejects a FRE 403 challenge to that “expert’s” testimony. Id. at *2. The Ninth also tolerates a six-level upward adjustment, based on aggravating circumstances. Id. 

  There are admittedly some bad facts in this case (Pacheco was HIV positive): the mem dispo reveals the story behind the opinion’s story . . .

How to Use: Like the Herrera opinion discussed last week, see blog here, , Pacheco is really statutory interpretation case. And like Herrera, the ubiquitous Bryan Garner makes an appearance in support of the Court’s interpretation. Id. at *3 (discussing Black’s Law Dictionary definition, edited by Prof. Garner).

 Pacheco offers a long discussion of the word, “pending” (and tries to distinguish a 2015 J. Reinhardt decision along the way.) The opinion’s expansive definitions of “pending” and “official detention” may have unintended consequences down the statutory interpretation pike: worth a Westlaw search to see what opportunities the case may present.                             

For Further Reading: A cop’s official statement should not an open-book test, to be tweaked after watching body camera video.

The San Francisco Police Commission has finally adopted a policy that restricts cops from viewing body cam footage before providing a statement in an officer-involved shooting, or involving an in-custody death. 

For an article describing this development (with some insights from our own ND Cal AFPD David Rizk), see New body-worn camera measures pass – after 2.5 years of negotiation with SF police union, available here




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Sunday, October 04, 2020

Case o' The Week: Ninth EDDifies Us on "Victims" - Herrera and Victims Under the Federal Sentencing Guidelines

 Corporations are “people,”


and government entities are, “victims.”

United States v. Herrera, 2020 WL 5405679 (9th Cir. Sept. 9, 2020), decision available here.

Players: Decision by Judge Hunsaker, joined by Judge Wardlaw and visiting Sixth Circuit Judge Cook.

Facts: Herrera pleaded open to mail fraud, relating to an unemployment-fraud scheme. Id. at *1. Herrera and his brother, and those who worked for the pair, filed fictitious claims. Id. The California Employment Development Department (“EDD”) paid out money on these fraudulent claims. Id. at *2. At sentencing, and over Herrera’s objection, his guidelines included a three-level bump for leadership role, and a two-level enhancement because there were ten ore more victims of the scheme. Id. at *2 (citing USSG § 2B1.1(b)(2)(A)(i)). Herrera was sentenced to 84 months and appealed.

Issue(s): “[ ] Herrera argues the district court erred by counting EDD as a victim for purposes of the number-of-victims enhancement imposed under § 2B1.1(b)(2)(A)(i). Whether the definition of ‘victim’ under § 2B1.1 includes a state government agency is a question of first impression in this circuit that we review de novo.” Id. at *4. “Thus, the question here is whether the definition of ‘victim’ for § 2B1.1, which does not include government entities in its list of various entities that may be counted as victims, must be interpreted to exclude government entities regardless of whether they suffer loss included in the loss calculation.” Id. at *6.

Held: [ ] [W]e hold that state government agencies who suffer losses that are included in the actual loss calculation under § 2B1.1(b)(1) are properly counted as victims for purposes of the number-of-victims enhancement in § 2B1.1(b)(2)(A)(i).” Id. at *8.

Of Note: This is a disappointing decision of first impression. Judge Hunsaker begins the analysis by reporting that “government entities” are not included in the list of entities that constitute “victims” in this guideline. Id. at *6. And she concedes that under “traditional statutory interpretation principles” “all omissions should be understood as exclusions.” Id. (emphasis added).

  And yet, relying on the “presumption of nonexclusive ‘include’” rule of statutory construction (from the Scalia / Garner Reading Law tome), the Ninth ends up concluding that a government entity is a victim under this guideline. Id. at *8.

  Sixty years ago, Professor Karl Llewellyn famously opined that rules of statutory construction are “conclusory explanations appended after the fact to justify results reached on other grounds.” See Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 521-35 (Little, Brown, 1960).   Maybe they are, maybe they aren’t, but fair to observe that these rules don’t lead to a particularly obvious result in Herrera.  

How to Use: Herrera also tolerates the imposed leadership-role adjustment in an analysis that merits mulling. James Herrera, and a co-conspirator, Ayala-Mora, were both directed by “Hessiani,” Herrera’s brother. Id. at *4. And Hererra and Ayala-Mora both received equal proceeds from the scheme. Id. Herrera, however, still was hit by a three-level “leadership” bump. Co-equal conspirators are not supposed to get leadership enhancements: the Ninth’s factual discussion of why this three-level bump survives is worth a close read if you have a client who getting nailed with this guideline.                                      

For Further Reading: Senator Mitch McConnell has vowed he will push forward on the conformation of SCOTUS nominee Amy Coney Barrett, despite the recent spate of positive COVID results among Judiciary Committee members. See AP news article here

  Much ink has been spilled on Judge Barrett’s views on a woman’s right to choice, on the Second Amendment, and Obamacare. How does the jurist come down on criminal law issues? For an interesting piece on that important question, see Jacob Sullum, SCOTUS Contender Amy Coney Barrett’s Mixed Record in Criminal Cases, available here




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