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OPINION: BNSF Railway Co. v. State, ex rel., DEQ
UNPUBLISHED OPINION: Dept. of Revenue v. Thill
OPINION: State v. Zimmerman
OPINION: Driver v. Sentence Review Division
The Montana Supreme Court has issued an Opinion in the following matter:
OP 09-0609,
JEREL DRIVER, CHARLES SMITH, ALAN COMBS, ABEL GONZALES, MICHAEL HAMMOND, MARTIN SWAN, CLIFFORD DELGER, DANIEL MILES, TIMOTHY DeHARRERA, WILLIAM PIPER, RONALD HUMMEL, STEVEN WHITECLOUS, CLEVE SPANG, ZANE WYMORE, DARIN GUCKEEN, TOMMY SETH DELLAR,
Petitioners,
v.
THE SENTENCE REVIEW DIVISION IN THE SUPREME COURT OF THE STATE OF MONTANA,
Respondent.
Case o' The Week: Ninth Won't "Stand" for Late-Raised Issues (Usually): Fourth Amendment Standing & Reyes-Bosque
The party didn't raise a Fourth Amendment issue in the district court, didn't offer opposing facts or testimony putting the issue in play, and didn't get around to litigating the issue until it finally hit the Ninth Circuit. Waived?
Nope. (The party was the government). United States v. Reyes-Bosque, __ F.3d __, 2010 WL 681839 (9th Cir. Mar. 1, 2010), decision available here.
Players: Decision by visiting Senior Sixth Cir. Judge Eugene Edward Siler, Jr. (right), joined by Judges Shroeder and Ikuta.
Facts: After smuggled aliens escaped out of a stash house they were discovered by the Border Patrol. Id. at *1. The agents took the aliens back to a two-bedroom unit where they had been staying (“Unit 4") and conducted a warrantless search. Id. at *1-*2. They found evidence of alien smuggling. Id. at *2. A “sweep” of the adjacent unit (“Unit 3") revealed Reyes-Bosque, and a (hiding) Mexican national, Ramirez-Esqueda, who later admitted that he was working in Reyes-Bosque’s alien-smuggling operation. Id. at *3.
Both men’s Fourth Amendment motions were denied, and they were convicted at separate trials of a variety of alien-smuggling offenses. Id. at *1, *5.
Issue(s): “Ramiriez-Esqueda argues that he has standing to challenge the search of Unit 3, because he was an overnight guest of Unit 3.” Id. at *6.
Held: “Because Ramirez-Esqueda has not presented sufficient evidence to prove that he was an overnight guest at Unit 3 and has not argued that he has standing to challenge the search on any other grounds, we conclude that he does not have standing to challenge the search of Unit 3.” Id. at *7.
Of Note: Defendant Ramirez-Esqueda did present evidence that he was an overnight guest: his own statement. Id. at *6. That evidence was undisputed – there were no contrary declarations and no opposing testimony from government witnesses. Id. at *6. Nonetheless, visiting Judge Siler here finds that Ramirez-Esqueda lacked standing – because, among other things, the defendant wasn’t “resting” inside the Unit around “8:30 or 9:00 a.m.” Id. at *6.
The panel here admittedly relies on the Ninth’s 1995 Armenta decision in reaching its standing decision, but the result is nonetheless a frustrating swipe at Fourth Amendment protections. The defense is tasked with not only establishing standing, but disproving alternate theories for the defendant’s presence in Unit 3 despite the government's failure to present evidence opposing the defendant's statement. Id. at *6.
How to Use: What exactly did the government argue in the district court, when it contested Ramirez-Esqueda’s standing? Well, turns out “the government did not raise the issue of standing before the district court.” Id. at *6 n.3 (emphasis added).
If the government didn’t contest the defendant’s standing during the suppression litigation, how in the world did Ramirez-Esqueda lose on “standing” on appeal? Because, assures the Ninth, “we may consider it now.” Id.
Here’s Judge Siler’s explanation of the rule: “So long as the government did not rely on acts contrary to its standing argument before the district court, the standing issue is properly before us on appeal.” Id. The (curious) rule on the government’s ability to first challenge standing on appeal seems to hinge on whether the defense, or the government, won the suppression litigation in the district court. Id.; see also United States v. Taketa, 923 F.2d 665, 670 (9th Cir. 1991) (“Sherwin and Spilotro involved government appeals of suppression motions that had been granted. It was proper that in that circumstance the appellate courts declined to consider government arguments untimely raised. In this case, by contrast, we consider a defendant’s appeal of a suppression motion that was denied, when the question was raised in the district court. The burden of demonstrating that the evidence should have been suppressed is upon the appellants.”)
The punch line is to remember Reyes-Bosque when developing the appellate record on a motion to suppress. Even if an AUSA or district court doesn’t bother about “standing” while below, worry about the Ninth reaching out and snagging the issue on appeal (particularly troubling when, as here, it is on an under-developed factual record).
For Further Reading: Poet Ruth Stone would not be granted standing by the Ninth – she was up too early, didn’t have a key, and felt “isolated like a rabbit” in the home. See Ruth Stone, “Overnight Guest,” Poetry Magazine, June 1998, available here.
Image of the Hon. Eugene Edward Siler, Jr. from http://www.ca6.uscourts.gov/lib_hist/courts/circuit/judges/judges/siler.html
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
.
Nope. (The party was the government). United States v. Reyes-Bosque, __ F.3d __, 2010 WL 681839 (9th Cir. Mar. 1, 2010), decision available here.
Players: Decision by visiting Senior Sixth Cir. Judge Eugene Edward Siler, Jr. (right), joined by Judges Shroeder and Ikuta.
Facts: After smuggled aliens escaped out of a stash house they were discovered by the Border Patrol. Id. at *1. The agents took the aliens back to a two-bedroom unit where they had been staying (“Unit 4") and conducted a warrantless search. Id. at *1-*2. They found evidence of alien smuggling. Id. at *2. A “sweep” of the adjacent unit (“Unit 3") revealed Reyes-Bosque, and a (hiding) Mexican national, Ramirez-Esqueda, who later admitted that he was working in Reyes-Bosque’s alien-smuggling operation. Id. at *3.
Both men’s Fourth Amendment motions were denied, and they were convicted at separate trials of a variety of alien-smuggling offenses. Id. at *1, *5.
Issue(s): “Ramiriez-Esqueda argues that he has standing to challenge the search of Unit 3, because he was an overnight guest of Unit 3.” Id. at *6.
Held: “Because Ramirez-Esqueda has not presented sufficient evidence to prove that he was an overnight guest at Unit 3 and has not argued that he has standing to challenge the search on any other grounds, we conclude that he does not have standing to challenge the search of Unit 3.” Id. at *7.
Of Note: Defendant Ramirez-Esqueda did present evidence that he was an overnight guest: his own statement. Id. at *6. That evidence was undisputed – there were no contrary declarations and no opposing testimony from government witnesses. Id. at *6. Nonetheless, visiting Judge Siler here finds that Ramirez-Esqueda lacked standing – because, among other things, the defendant wasn’t “resting” inside the Unit around “8:30 or 9:00 a.m.” Id. at *6.
The panel here admittedly relies on the Ninth’s 1995 Armenta decision in reaching its standing decision, but the result is nonetheless a frustrating swipe at Fourth Amendment protections. The defense is tasked with not only establishing standing, but disproving alternate theories for the defendant’s presence in Unit 3 despite the government's failure to present evidence opposing the defendant's statement. Id. at *6.
How to Use: What exactly did the government argue in the district court, when it contested Ramirez-Esqueda’s standing? Well, turns out “the government did not raise the issue of standing before the district court.” Id. at *6 n.3 (emphasis added).
If the government didn’t contest the defendant’s standing during the suppression litigation, how in the world did Ramirez-Esqueda lose on “standing” on appeal? Because, assures the Ninth, “we may consider it now.” Id.
Here’s Judge Siler’s explanation of the rule: “So long as the government did not rely on acts contrary to its standing argument before the district court, the standing issue is properly before us on appeal.” Id. The (curious) rule on the government’s ability to first challenge standing on appeal seems to hinge on whether the defense, or the government, won the suppression litigation in the district court. Id.; see also United States v. Taketa, 923 F.2d 665, 670 (9th Cir. 1991) (“Sherwin and Spilotro involved government appeals of suppression motions that had been granted. It was proper that in that circumstance the appellate courts declined to consider government arguments untimely raised. In this case, by contrast, we consider a defendant’s appeal of a suppression motion that was denied, when the question was raised in the district court. The burden of demonstrating that the evidence should have been suppressed is upon the appellants.”)
The punch line is to remember Reyes-Bosque when developing the appellate record on a motion to suppress. Even if an AUSA or district court doesn’t bother about “standing” while below, worry about the Ninth reaching out and snagging the issue on appeal (particularly troubling when, as here, it is on an under-developed factual record).
For Further Reading: Poet Ruth Stone would not be granted standing by the Ninth – she was up too early, didn’t have a key, and felt “isolated like a rabbit” in the home. See Ruth Stone, “Overnight Guest,” Poetry Magazine, June 1998, available here.
Image of the Hon. Eugene Edward Siler, Jr. from http://www.ca6.uscourts.gov/lib_hist/courts/circuit/judges/judges/siler.html
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
.
OPINION: Matter of A.J.W.
OPINION: Matter of K.J.
Case o' The Week: Ninth Won't "Pucker Up to Kiss the Great Writ Goodbye:" Doody, Miranda, and Voluntariness of Confessions
Thanks to the Supremes, Miranda is battered and bruised - with another lousy decision coming out just last week. Thankfully, Miranda protections still having real meaning in the Ninth, as evidenced by an important new en banc decision by Judge Johnnie B. Rawlinson (right). Doody v. Schriro, __ F.3d __, 2010 WL 653441 (9th Cir. Feb. 25, 2010) (en banc) (decision available here).
Players: Decision by Judge Rawlinson, dissent by Judge Tallman.
Facts: Nine people - including six monks - were murdered inside of an Arizona Buddhist temple. Id. at *1. The Phoenix team of detectives investigating the case interrogated four men, who confessed and charged with murder. Id. Those confessions were false; the murder charges were dismissed. Id. & n.1.
The same task force eventually seized on Doody, a seventeen-year old boy. Id. They took Doody in and questioned him overnight for over twelve hours, used tag-team interrogation, sat him in a hard, straight-backed chair, after giving him long and garbled Miranda “warnings. Id. at *1-*10.
Doody confessed to being present during the murders, was charged, unsuccessfully moved to suppress his statements in state court, and was convicted of first degree murder. Id. at *11. His appeal was denied by the state appellate court, his habeas was denied by a three-judge Ninth panel, and the case went en banc. Id. at *12.
Issue(s): “Although Doody eventually confessed to participating in the nine murders, he now challenges his confessions, asserting that the Miranda advisements he was given were inadequate and that his confession was involuntary.” Id. at *1.
Held: “We agree on both counts. Specifically, we conclude that the advisement provided to Doody, which consumed twelve pages of transcript and completely obfuscated the core precepts of Miranda, was inadequate.” Id. at *1.
Of Note: Doody is an admirable piece of legal writing, with exhaustive discussion of the factual record and a detailed analysis of controlling (and distinguishable) authority. It is also clearly heartfelt, as revealed in Judge Rawlinson’s shot across Judge Tallman’s bow:
The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat, rubber stamp, pucker up, and kiss The Great Writ good-by.
Id. at *14.
How to Use: Doody will be remembered as a Miranda case, but to be honest Miranda warnings are rarely butchered as badly as by the Arizona detectives in this case. The real potential value of the opinion is in its comprehensive discussion and analysis of the voluntariness of the confession – separate and apart from the Miranda warnings. Id. at *16 - *29.
Judge Rawlinson patiently wades through – and effectively distinguishes – each of the cases tossed up by the dissent, making Doody an excellent primer on the voluntariness issue. Of particular interest is the opinion’s correct insistence that the “voluntariness” inquiry must on weigh all of the factors around an interrogation in totality, and a court cannot simply tick-off (and dismiss) factors in isolation. Id. at *19-*23. Doody will be a lead case in the Ninth: it should figure prominently in any motion challenging the voluntariness of a custodial interrogation.
For Further Reading: The 800-pound gorilla (for any post-AEDPA, Ninth Circuit opinion) pounded its chest in a most-unwelcome way this week. In Maryland v. Shatzer, __ S. Ct. __, 2010 WL 624042, *8 (U.S. Sup. Ct. Feb. 24. 2010), the Court permitted law enforcement to re-initiate custodial interrogations two-weeks after a suspect asserts Miranda protections. Shatzer comes about a year after Montejo v. Louisiana, 129 S.Ct. 2079 (2009), where the Court permitted law enforcement to initiate post-appointment interrogation of represented defendants.
When you read of the really abusive interrogation of a minor in Doody (by the same Phoenix task force that had managed to grind out four false confessions in the same case) it makes the Supreme Court’s recent Miranda missteps all the more troubling.
Image of the Hon. Johnnie B. Rawlinson from http://www.pepperdine.edu/pr/images/solgrad07rawlinson.jpg
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
.
Players: Decision by Judge Rawlinson, dissent by Judge Tallman.
Facts: Nine people - including six monks - were murdered inside of an Arizona Buddhist temple. Id. at *1. The Phoenix team of detectives investigating the case interrogated four men, who confessed and charged with murder. Id. Those confessions were false; the murder charges were dismissed. Id. & n.1.
The same task force eventually seized on Doody, a seventeen-year old boy. Id. They took Doody in and questioned him overnight for over twelve hours, used tag-team interrogation, sat him in a hard, straight-backed chair, after giving him long and garbled Miranda “warnings. Id. at *1-*10.
Doody confessed to being present during the murders, was charged, unsuccessfully moved to suppress his statements in state court, and was convicted of first degree murder. Id. at *11. His appeal was denied by the state appellate court, his habeas was denied by a three-judge Ninth panel, and the case went en banc. Id. at *12.
Issue(s): “Although Doody eventually confessed to participating in the nine murders, he now challenges his confessions, asserting that the Miranda advisements he was given were inadequate and that his confession was involuntary.” Id. at *1.
Held: “We agree on both counts. Specifically, we conclude that the advisement provided to Doody, which consumed twelve pages of transcript and completely obfuscated the core precepts of Miranda, was inadequate.” Id. at *1.
Of Note: Doody is an admirable piece of legal writing, with exhaustive discussion of the factual record and a detailed analysis of controlling (and distinguishable) authority. It is also clearly heartfelt, as revealed in Judge Rawlinson’s shot across Judge Tallman’s bow:
The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat, rubber stamp, pucker up, and kiss The Great Writ good-by.
Id. at *14.
How to Use: Doody will be remembered as a Miranda case, but to be honest Miranda warnings are rarely butchered as badly as by the Arizona detectives in this case. The real potential value of the opinion is in its comprehensive discussion and analysis of the voluntariness of the confession – separate and apart from the Miranda warnings. Id. at *16 - *29.
Judge Rawlinson patiently wades through – and effectively distinguishes – each of the cases tossed up by the dissent, making Doody an excellent primer on the voluntariness issue. Of particular interest is the opinion’s correct insistence that the “voluntariness” inquiry must on weigh all of the factors around an interrogation in totality, and a court cannot simply tick-off (and dismiss) factors in isolation. Id. at *19-*23. Doody will be a lead case in the Ninth: it should figure prominently in any motion challenging the voluntariness of a custodial interrogation.
For Further Reading: The 800-pound gorilla (for any post-AEDPA, Ninth Circuit opinion) pounded its chest in a most-unwelcome way this week. In Maryland v. Shatzer, __ S. Ct. __, 2010 WL 624042, *8 (U.S. Sup. Ct. Feb. 24. 2010), the Court permitted law enforcement to re-initiate custodial interrogations two-weeks after a suspect asserts Miranda protections. Shatzer comes about a year after Montejo v. Louisiana, 129 S.Ct. 2079 (2009), where the Court permitted law enforcement to initiate post-appointment interrogation of represented defendants.
When you read of the really abusive interrogation of a minor in Doody (by the same Phoenix task force that had managed to grind out four false confessions in the same case) it makes the Supreme Court’s recent Miranda missteps all the more troubling.
Image of the Hon. Johnnie B. Rawlinson from http://www.pepperdine.edu/pr/images/solgrad07rawlinson.jpg
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
.
UNPUBLISHED OPINION: Fitzgerald v. State
OPINIOn: Tacke v. Energy West
OPINION: Matter of Hanna
OPINION: State v. Weatherell
OPINION: Morigeau v. Gorman
The Montana Supreme Court has issued an Opinion in the following matter:
DA 09-0214,
DIANE MORIGEAU, personally and as Personal Representative of the Estate of Benjamin F. Morigeau, Sr.,
Plaintiff and Appellant,
v.
DAVID GORMAN, M.D., NORTHWEST HEALTHCARE CORPORATIOIN, a Montana Corporation d/b/a POLSON FAMILY MEDICAL CLINIC, ST. PATRICK HOSPITAL AND HEALTH SCIENCES CENTER, a Montana Corporation d/b/a INTERNATIONAL HEART INSTITUTE OF MONTANA,
Defendants and Appellees.
Case o' The Week: Supremes Get Confrontational With Ninth: Norwood and the Confrontation Clause
In 2009, the defense in Norwood argued that an affidavit created by a state-employee for trial, and introduced without her testimony, was testimonial hearsay barred by Crawford and the Confrontation Clause.
"You're wrong," countered the Ninth.
"You're wrong," trumped the Supremes. The Supreme Court granted Norwood's petition for cert., vacated, and remanded the Ninth's first Norwood decision. On remand, the Ninth (and the government) now finally concede that Crawford applies to a broader scope of hearsay. A victory for the Confrontation Clause (though a "harmless error" loss for Mr. Norwood). United States v. Norwood, 2919 WL 537497 (9th Cir. Feb. 17, 2010), decision available here.
Players: Decision by Judge M. Smith (above left), joined by Judge Tallman and visiting Judge Reavley.
Facts: After responding to a domestic violence call police found Norwood lying in bed, the smell of marijuana in the air. Id. at *1. A search of Norwood revealed .86 grams of crack and over $2,500; a later search of his home and car turned up another $7,000 in cash (in duct-taped $1k bundles), 7+ grams of crack, a digital scale with residue, marijuana, and a gun. Id.
Norwood went to trial on crack and § 924(c) charges. Id. At trial, the government introduced an affidavit by a state employee claiming there were no wage records for Norwood. Id. “[T]he court admitted her affidavit as circumstantial evidence that Norwood had no legal source for the large amounts of cash that were found on his person and in his car.” Id. at *2.
The Ninth upheld the conviction. See 555 F.3d 1061 (9th Cir. 2009). The Supreme Court granted, vacated, and remanded the Ninth’s opinion in light of its decision in Melendez-Diaz v. Massachusetts, 129 S. Ct 2527 (2009). The Norwood case discussed in this memo is the Ninth’s decision on remand.
Issue(s): “Norwood alleges that his Sixth Amendment right to confront his accusers was violated when the district court admitted into evidence a written affidavit without requiring the affiant to testify on the stand.” Id. at *2.
Held: “[T]he government concedes that under Melendez-Diaz, [the] affidavit, prepared for use at Norwood’s trial to prove the absence of any record of Norwood having legitimate employment, should not have been admitted without [the employee] presenting herself at trial for examination.” Id. at *3.
[However,] disregarding the affidavit entirely, the evidence against Norwood on the elements of the offense of possession of cocaine base with intent to distribute was sufficient to establish his guilt beyond any reasonable doubt.” Id. at *4. (Therefore, this was harmless error).
Of Note: While Norwood is primarily a Confrontation Clause case, it also unfortunately contributes to the factual morass of § 924(c) law. Here, although Norwood didn’t have the gun (it was hidden in the bed), and although there were very small amounts of drugs, and while there was not much trafficking-paraphernalia, the Ninth stretches earlier § 924(c) analyses to salvage the conviction. Id. at *7 (discussing Krouse). Beware of Norwood when crafting your Rule 29 motions in Section 924(c) cases.
How to Use: One spin-off of the 2004 Crawford decision is litigation over what is – and isn’t – a “business record” exempt from the ban on “testimonial” hearsay. In the original decision, the Ninth tried to patch up the affidavit as a “business record” (which is exempt from the Crawford rule): the Supremes didn’t buy it and reversed. Recall that the (hearsay) lab analyses in the Supreme Court’s Melendez-Diaz decision didn’t cut Crawford muster. From that holding it is clear that the state-employee affidavit used in Norwood was also “testimonial” and prohibited.
After Crawford, Melendez-Diaz, and Norwood, when the government starts cramming hearsay into the business record exception defense antennae should start quivering. See generally United States v. Ray, 930 F.2d 1368, 1370 (9th Cir. 1990) (discussing Fed. R. Evid. 803(6) and foundation requirements for business record exception).
For Further Reading: “Nada. Gar nichts. Rien du tout. Bupkes.” 2010 WL 548042, *1 (9th Cir. Feb. 18, 2010) (dissent from ord. denying rehearing en banc).
That’s Chief Judge Kozinski describing how many circuits (outside of the Ninth) have approved a police invasion of a home based on no showing whatsoever. Read Judge Kozinski’s funny, persuasive, and infuriating dissent from the denial of rehearing en banc in Lemus (decision available here). He laments the death of the Fourth Amendment protections in the home in the Ninth; a dissent joined, remarkably, only by Judge Paez. Where are all the lefties (and individual-rights conservatives) when the C.J. sounds the Fourth alarm?
Image of the Hon. M. Smith from http://blog.oregonlive.com/mapesonpolitics/2008/07/this_smith_brother_made_the_di.html
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
.
"You're wrong," countered the Ninth.
"You're wrong," trumped the Supremes. The Supreme Court granted Norwood's petition for cert., vacated, and remanded the Ninth's first Norwood decision. On remand, the Ninth (and the government) now finally concede that Crawford applies to a broader scope of hearsay. A victory for the Confrontation Clause (though a "harmless error" loss for Mr. Norwood). United States v. Norwood, 2919 WL 537497 (9th Cir. Feb. 17, 2010), decision available here.
Players: Decision by Judge M. Smith (above left), joined by Judge Tallman and visiting Judge Reavley.
Facts: After responding to a domestic violence call police found Norwood lying in bed, the smell of marijuana in the air. Id. at *1. A search of Norwood revealed .86 grams of crack and over $2,500; a later search of his home and car turned up another $7,000 in cash (in duct-taped $1k bundles), 7+ grams of crack, a digital scale with residue, marijuana, and a gun. Id.
Norwood went to trial on crack and § 924(c) charges. Id. At trial, the government introduced an affidavit by a state employee claiming there were no wage records for Norwood. Id. “[T]he court admitted her affidavit as circumstantial evidence that Norwood had no legal source for the large amounts of cash that were found on his person and in his car.” Id. at *2.
The Ninth upheld the conviction. See 555 F.3d 1061 (9th Cir. 2009). The Supreme Court granted, vacated, and remanded the Ninth’s opinion in light of its decision in Melendez-Diaz v. Massachusetts, 129 S. Ct 2527 (2009). The Norwood case discussed in this memo is the Ninth’s decision on remand.
Issue(s): “Norwood alleges that his Sixth Amendment right to confront his accusers was violated when the district court admitted into evidence a written affidavit without requiring the affiant to testify on the stand.” Id. at *2.
Held: “[T]he government concedes that under Melendez-Diaz, [the] affidavit, prepared for use at Norwood’s trial to prove the absence of any record of Norwood having legitimate employment, should not have been admitted without [the employee] presenting herself at trial for examination.” Id. at *3.
[However,] disregarding the affidavit entirely, the evidence against Norwood on the elements of the offense of possession of cocaine base with intent to distribute was sufficient to establish his guilt beyond any reasonable doubt.” Id. at *4. (Therefore, this was harmless error).
Of Note: While Norwood is primarily a Confrontation Clause case, it also unfortunately contributes to the factual morass of § 924(c) law. Here, although Norwood didn’t have the gun (it was hidden in the bed), and although there were very small amounts of drugs, and while there was not much trafficking-paraphernalia, the Ninth stretches earlier § 924(c) analyses to salvage the conviction. Id. at *7 (discussing Krouse). Beware of Norwood when crafting your Rule 29 motions in Section 924(c) cases.
How to Use: One spin-off of the 2004 Crawford decision is litigation over what is – and isn’t – a “business record” exempt from the ban on “testimonial” hearsay. In the original decision, the Ninth tried to patch up the affidavit as a “business record” (which is exempt from the Crawford rule): the Supremes didn’t buy it and reversed. Recall that the (hearsay) lab analyses in the Supreme Court’s Melendez-Diaz decision didn’t cut Crawford muster. From that holding it is clear that the state-employee affidavit used in Norwood was also “testimonial” and prohibited.
After Crawford, Melendez-Diaz, and Norwood, when the government starts cramming hearsay into the business record exception defense antennae should start quivering. See generally United States v. Ray, 930 F.2d 1368, 1370 (9th Cir. 1990) (discussing Fed. R. Evid. 803(6) and foundation requirements for business record exception).
For Further Reading: “Nada. Gar nichts. Rien du tout. Bupkes.” 2010 WL 548042, *1 (9th Cir. Feb. 18, 2010) (dissent from ord. denying rehearing en banc).
That’s Chief Judge Kozinski describing how many circuits (outside of the Ninth) have approved a police invasion of a home based on no showing whatsoever. Read Judge Kozinski’s funny, persuasive, and infuriating dissent from the denial of rehearing en banc in Lemus (decision available here). He laments the death of the Fourth Amendment protections in the home in the Ninth; a dissent joined, remarkably, only by Judge Paez. Where are all the lefties (and individual-rights conservatives) when the C.J. sounds the Fourth alarm?
Image of the Hon. M. Smith from http://blog.oregonlive.com/mapesonpolitics/2008/07/this_smith_brother_made_the_di.html
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
.
OPINION: Prescott v. Innovative Resource Group
OPINION: State v. Passmore
Case o' The Week: Dias Infaustus = Defense Delight, Ressam and 3553 Analysis
Those admirable attorneys (including many JAG officers) who long have argued that different rules for terrorism prosecutions will undermine our entire legal system were right --- and were right in ways that they couldn't have anticipated. In the recent Ressam decision, the Ninth reverses a sentence of twenty-two years for a cooperating attempted-terrorist as "substantively unreasonable." United States v. Ressam, __ F.3d __, 2010 WL 347962 (9th Cir. Feb. 2, 2010), decision available here.
In a forceful dissent, Judge Fernandez warns that Ressam is ultimately an ends-driven decision; an opinion that opens wide the door for the Circuit to freely muck about with district court sentencing discretion. He's right: a tough break for Mr. Ressam provides great sentencing and appellate opportunities for other federal defendants.
Players: Hard-fought case by W.D. Wa. Defender Thomas Hillier and AFPD Lissa Shook. Decision by Senior Judge Alarcón; dissent by Judge Fernandez.
Facts: Ressam was convicted at trial of plotting to bomb LAX. His guideline range was 65 years to life. Id. at *1. He began cooperating post-conviction, gave information about terrorism and alQueda, and testified. Id. Two years into his cooperation he stopped, then began recanting. Id.
He was sentenced to 22 years; the parties cross-appealed. Id. The case went up to the Ninth, to the Supremes, and back down. On remand the district court imposed 22 years again. Id. The government appealed. Id.
Issue(s): “[The Government] contends that when the relevant § 3553(a) factors are applied to the facts of this case, the sentence imposed is insufficient to accomplish the purposes of the statute, which directs that ‘[t]he court shall impose a sentence sufficient but not greater than necessary’ to accomplish the purposes of 18 USC § 3553(a)(2).” Id.
Held: “We vacate the sentence and remand for resentencing by a different district court judge because we conclude that the district court committed procedural error in failing to address specific, nonfrivolous arguments raised by the Government in imposing a sentence that is well below the advisory Sentencing Guidelines range.” Id.
“We hold that we must review sentencing decisions for procedural error, even where no claim of procedural error is raised.” Id. at *17 (emphasis added). “Where the district court imposes a sentence significantly outside the Guidelines range, and it appears from the record that the district court did not remain cognizant of the Sentencing Guidelines throughout the sentencing process, it has committed procedural error.” Id. at *19 (quotations and citations omitted).
Of Note: Judge Fernandez (not a traditional defense ally) pens a must-read dissent. Id. at *36. He briefly, bluntly, and accurately ticks off each of the steps that the district court did correctly. Id.
Why, then, reversal? He writes, “[I]t seems to me that the majority just does not like the fact that this terrorist is to sit in prison for a mere twenty-two years.” Id. at *37.
The dissent (correctly) warns, “this case is not just about what befalls Ressam; it reflects another entry by appellate courts into territory that always lures them, but is always forbidden to them. Society, we, and the district courts will someday regret the results of our case-by-case trespassing onto lands we should stay out of; the day this decision becomes law will, indeed, be a dies infaustus.” Id. at *37.
Judge Fernandez is right: there’s much defense mischief to be made from this new sentencing opinion. Below are a few suggestions.
How to Use: There’s so much defense treasure to be mined from Ressam that we’ll simply list some handy propositions for use at sentencing and in appeals:
● A district court’s near-decade of experience with the case, and its explicit assurances that it had considered all the § 3553 factors, does not insulate it from reversal on procedural error. Id. at *14.
● The appellate court must review for procedural error sua sponte , even if procedural error is expressly disclaimed by the parties. Id. at *6 - *17.
● (For challenges to upward departures) - Merely calculating a guideline range correctly (twice, in separate hearings) and discussing the guidelines three times during the sentencing hearing is still insufficient to show that the district court remained “cognizant of the Guidelines throughout the sentencing process.” Id. at *26 - *27.
● A district court’s failure to expressly mention a § 3553 factor urged by a party can result in reversal, even if the sentencing court assures that it has considered the § 3553 factors. Id. at *31.
● An appellate court may reverse a district court’s sentence as substantively unreasonable if it simply disagrees with the relative weight given to the § 3553 factors. Id. at *33.
For Further Reading: Ressam’s cooperation went poorly. He spent years in solitary, cooperated, testified, went nutty, stopped, and recanted his prior testimony in an excruciating pro se exchange. Id. at *10-*12. Safe to predict that he’ll get more than 22 on remand.
As Umar Farouk Abdulmutallab – the “Christmas Bomber” – begins his snitching sorjourn, the Ressam experience and opinion are not exactly reassuring for his defense counsel. See article here.
Image of Ahmed Ressam from http://www.cbc.ca/news/background/osamabinladen/ressam_timeline.html, by CP Picture Archive/Le Journal de Montreal . Image of Umar Farouk Abdulmatallab from http://www.newstimeafrica.com/archives/9866
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
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In a forceful dissent, Judge Fernandez warns that Ressam is ultimately an ends-driven decision; an opinion that opens wide the door for the Circuit to freely muck about with district court sentencing discretion. He's right: a tough break for Mr. Ressam provides great sentencing and appellate opportunities for other federal defendants.
Players: Hard-fought case by W.D. Wa. Defender Thomas Hillier and AFPD Lissa Shook. Decision by Senior Judge Alarcón; dissent by Judge Fernandez.
Facts: Ressam was convicted at trial of plotting to bomb LAX. His guideline range was 65 years to life. Id. at *1. He began cooperating post-conviction, gave information about terrorism and alQueda, and testified. Id. Two years into his cooperation he stopped, then began recanting. Id.
He was sentenced to 22 years; the parties cross-appealed. Id. The case went up to the Ninth, to the Supremes, and back down. On remand the district court imposed 22 years again. Id. The government appealed. Id.
Issue(s): “[The Government] contends that when the relevant § 3553(a) factors are applied to the facts of this case, the sentence imposed is insufficient to accomplish the purposes of the statute, which directs that ‘[t]he court shall impose a sentence sufficient but not greater than necessary’ to accomplish the purposes of 18 USC § 3553(a)(2).” Id.
Held: “We vacate the sentence and remand for resentencing by a different district court judge because we conclude that the district court committed procedural error in failing to address specific, nonfrivolous arguments raised by the Government in imposing a sentence that is well below the advisory Sentencing Guidelines range.” Id.
“We hold that we must review sentencing decisions for procedural error, even where no claim of procedural error is raised.” Id. at *17 (emphasis added). “Where the district court imposes a sentence significantly outside the Guidelines range, and it appears from the record that the district court did not remain cognizant of the Sentencing Guidelines throughout the sentencing process, it has committed procedural error.” Id. at *19 (quotations and citations omitted).
Of Note: Judge Fernandez (not a traditional defense ally) pens a must-read dissent. Id. at *36. He briefly, bluntly, and accurately ticks off each of the steps that the district court did correctly. Id.
Why, then, reversal? He writes, “[I]t seems to me that the majority just does not like the fact that this terrorist is to sit in prison for a mere twenty-two years.” Id. at *37.
The dissent (correctly) warns, “this case is not just about what befalls Ressam; it reflects another entry by appellate courts into territory that always lures them, but is always forbidden to them. Society, we, and the district courts will someday regret the results of our case-by-case trespassing onto lands we should stay out of; the day this decision becomes law will, indeed, be a dies infaustus.” Id. at *37.
Judge Fernandez is right: there’s much defense mischief to be made from this new sentencing opinion. Below are a few suggestions.
How to Use: There’s so much defense treasure to be mined from Ressam that we’ll simply list some handy propositions for use at sentencing and in appeals:
● A district court’s near-decade of experience with the case, and its explicit assurances that it had considered all the § 3553 factors, does not insulate it from reversal on procedural error. Id. at *14.
● The appellate court must review for procedural error sua sponte , even if procedural error is expressly disclaimed by the parties. Id. at *6 - *17.
● (For challenges to upward departures) - Merely calculating a guideline range correctly (twice, in separate hearings) and discussing the guidelines three times during the sentencing hearing is still insufficient to show that the district court remained “cognizant of the Guidelines throughout the sentencing process.” Id. at *26 - *27.
● A district court’s failure to expressly mention a § 3553 factor urged by a party can result in reversal, even if the sentencing court assures that it has considered the § 3553 factors. Id. at *31.
● An appellate court may reverse a district court’s sentence as substantively unreasonable if it simply disagrees with the relative weight given to the § 3553 factors. Id. at *33.
For Further Reading: Ressam’s cooperation went poorly. He spent years in solitary, cooperated, testified, went nutty, stopped, and recanted his prior testimony in an excruciating pro se exchange. Id. at *10-*12. Safe to predict that he’ll get more than 22 on remand.
As Umar Farouk Abdulmutallab – the “Christmas Bomber” – begins his snitching sorjourn, the Ressam experience and opinion are not exactly reassuring for his defense counsel. See article here.
Image of Ahmed Ressam from http://www.cbc.ca/news/background/osamabinladen/ressam_timeline.html, by CP Picture Archive/Le Journal de Montreal . Image of Umar Farouk Abdulmatallab from http://www.newstimeafrica.com/archives/9866
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
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UNPUBLISHED OPINION: State v. Palagi
UNPUBLISHED OPINION: State v. Reinhard
UNPUBLISHED OPINION: Matter of J.N.C.
