9th Circuit News Feed

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

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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


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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

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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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Is a prior burglary of a vending machine a "crime of violence" that triggers the draconian mandatory-minimum and guidelines of the Armed Career Criminal Act? It can be in the Ninth, thanks to a very disappointing decision in United States v. Terrell, 2010 WL 347914 (9th Cir. Feb. 2, 2010), decision available here.

Players: Decision by Judge Bybee, joined by Judges Tashima and Graber.

Facts: Terrell was convicted of being a felon in possession of a gun. Id. at *1. The indictment alleged he had previously been convicted of three felonies:

i. an Arizona Second Degree burglary,

ii. an Arizona sexual assault, and

iii. a second-degree burglary in Missouri.
(Ed. note: Curious that the priors were alleged in the indictment).

The district court found Terrell to fall within the Armed Career Criminal Act (ACCA), which raised his stat-max from ten to fifteen years. Id. He was sentenced to 188 months. Id. at *2.

Issue(s): “Terrell argues that the district court erred in imposing an enhanced sentence under the ACCA, contending that his prior felony convictions do not qualify as ‘violent felonies.’” Id.

Held: 1. Sexual Assault: “[W]e hold that Terrell’s prior sexual assault conviction qualifies as a ‘violent felony’ under the ACCA’s residual clause because it involves conduct that presents a serious potential risk of physical injury to another . . . and is roughly similar to the enumerated offenses in that it typically involves purposeful, violent, and aggressive conduct.” Id. at *6 (internal quotations and citations omitted).

2. Burglary: “We hold that, although Terrell’s prior burglary offenses do not fit within the enumerated offenses, they do fit within the residual clause.” Id. at *7.

3. ACCA? “Because the district court correctly held that Terrell had been convicted of at least three ‘violent felonies’ at the time he committed his felon in possession offense, we affirm the district court’s decision to enhance Terrell’s sentence under the ACCA.” Id. at *10.

Of Note: Terrell has sparked much debate among defense experts as to what exactly is wrong with the opinion. Among other problems with the case is Judge Bybee’s expansive reading of the Supreme Court’s Begay opinion and the ACCA residual clause, particularly as it applies to state burglary crimes. Id. at *10. He interprets Begay to mean that “a state burglary offense is almost always at least ‘roughly similar’ to generic burglary, even if the state offense is somewhat broader.” Id. (emphasis added).

To get there Judge Bybee concludes that because there’s a risk of violent confrontation during an Arizona Second Degree burglary, it is “similar to” an “enumerated” burglary in the ACCA statute. That’s all well and good, except that this Arizona statute also defines “burglary” as breaking into a vending machine. Id. at *6. Is “burglaring” Doritos really the type of “violent criminal” that Congress had in mind when passing the ACCA?

Terrell casts the categorical net so broadly that it rends Taylor irrelevant – any state statue named the same as an enumerated ACCA crime will be deemed “close enough.” Terrell’s take on Begay will sweep many undeserving defendants into the ACCA’s fifteen-year mandatory minimums (and even higher guidelines): the case deserves en banc review.

How to Use: Undaunted, CJA appellate attorney Dan Drake has just begun to fight and has been hitting up the defense bar for ideas for his en banc petition. Preserve challenges to ACCA enhancements despite Terrell. There is much afoot in the Ninth on these issues (see below), and Terrell will hopefully not be the last word on the issue.

For Further Reading: Busy and bad describes this week in the Ninth. In the notorious Ressam case, Judge Alarcon weighed-in on a terrorism sentence and inadvertently created a bevy of defense opportunities for sentencing appeals. See 2010 WL 347962 (9th Cir. Feb. 2, 2010). As dissenting Judge Fernandez quipped, the broader impact of the case will make the day it was delivered a, “dies infaustus.” Id. at *37 (an “unlucky day.”)

And in another blow, on February 3rd the Ninth granted the government’s petition for rehearing en banc in Aguila-Montes de Oca, that wonderful Judge Thompson decision that excluded California burglaries as “crimes of violence” for the illegal reentry guidelines. See blog here.



Image of the vending machine from http://www.fooducate.com/blog/tag/vending-machine/ .

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Last week, the Green case taught us that one can commit wire fraud without breaking any specific state or federal law or regulation.

This week, the Ninth explains that one can commit wire fraud without intending to cause any loss to the "victims." See United States v. Treadwell, __ F.3d __, 2010 WL 309027 (9th Cir. Jan. 28, 2010), decision available here.

Ever feel like it would have been easier to defend Charles Ponzi (above), in 1920?

Players: Decision by Judge Gould, joined by Judge Bea and D.J. Molloy.

Facts: Treadwell and his co-defendants ran a massive, four-year Ponzi scheme that bilked 1,700 investors out of over $40 million. Id. at *1. The wire-fraud defense was that although the defendants “misrepresented the nature of the various corporations’ earnings, the defendants always believed that their investors would always make money.” Id. at *2. Without defense objection, the jury instructions stated that “it is no defense to fraud that the defendant honestly holds a certain opinion or belief, but also knowingly makes false or fraudulent promises, representations, or promises to others.” Id. (internal quotations omitted).

After a jury convicted the defendants on various conspiracy and wire counts Treadwell was sentenced to 300 months. Id. at *2.

Issue(s): “On appeal, [defendants] challenge their jury conviction, arguing that the jury instructions violated their Fifth Amendment due process rights because ‘intent to defraud’ under 18 U.S.C. § 1343 requires an intent to cause an actual loss.” . . . “[Defendants] argue that their . . . rights were violated by jury instructions that did not define ‘intent to defraud’ under 18 U.S.C. § 1343 to require an intent to cause a financial loss to the victims.” Id. at *3.

Held: “[T]o ‘defraud’ under § 1343 does not require an intent to cause a pecuniary loss to the victim.” Id. at *4 (quoting United States v. Oren, 893 F.2d 1057, 1062 (9th Cir. 1990)). “While an honest, good faith belief in the truth of the misrepresentations may negate intent to defraud, a good-faith belief that the victim will be repaid and sustain no loss is no defense at all.” Id. (quoting United States v. Benny, 786 F.2d 1410, 1417 (9th Cir. 1986)).

Of Note: The interesting defense argument focuses on, arguably, a circuit split. In the Second, Third, Fifth and Eight Circuits, “intent to defraud” requires a deprivation of asserts with an “intent to harm.” Id. at *4. In Treadwell, Judge Gould dodges the question of whether the Ninth has a “harm” requirement. Even if there is, though, Judge Gould concludes that “[t]he intent to induce one’s victim to give up his or her property on the basis of an intentional misrepresentation causes ‘harm’ by depriving the victim of the opportunity to weigh the true benefits and risks of the transaction, regardless of whether or not the victim will suffer the permanent loss of money or property.” Id. at *5 (emphasis added).

With all due respect, this rule seems to edge wire fraud closer to the unmoored “honest services” fraud problem. For example, assume that with a pure heart a broker embellishes the value of a stock in an e-mailed solicitation to her client. Her “victim” buys the stock, it rises, and the client makes a killing with a quick sale. Under Treadwell, the broker committed wire fraud – despite no intent to harm, and despite a tidy profit for the victim.

How to Use: Treadwell was a plain error challenge to jury instructions, and on horrible facts. Maybe the fraud issue still has some fight in a better case? The Supreme Court now has a trio of “honest services” fraud cases before it, and the Justices are clearly hostile to that amorphous species of fraud. See article here . Given an (arguable) circuit split on the “intent to harm” issue, and given the likely Supreme Court guidance coming down this term on fraud generally, Treadwell’s “intent to harm” challenge to the Ninth’s pattern fraud instructions may be worth preserving in a case going to trial anyway.

For Further Reading: Ever feel like the Madoff & Stanford headlines are stacking the government’s deck before the jury is even empaneled? Read Treadwell. The opinion is studded with history lessons on Ponzi schemes, Madoff, and other fraudsters. See e.g., id. at *1 n.1 (discussing the history of Charles Ponzi).

To survey the historical baggage we face in a fraud case, hit the N.Y.T.’s interesting summary here .


Image of Charles Ponzi from http://www.nytimes.com/2009/05/05/nyregion/05ponzi.html?_r=1, originally from the book “The Lawless Decade,” by Paul Sann.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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As Kermit complained, "It's not easy being green." That's particularly true if you're Judy Green, and are serving a ninety-month sentence for your first offense. The crime?

Excellent question.

Apparently, says the Ninth, it is a crime to use the wires to commit a fraud (even if you're not breaking a law while you're doing it). United States v. Judy Green, __ F.3d __, 2010 WL 200280 (9th Cir. Jan. 22, 2010), decision available here.

Players: Hard-fought trial by ND Cal CJA attorney Erik Babcock. Decision by Judge Tashima.

Facts: Judy Green, a former school teacher, became a consultant to help poor schools procure federal “E-Rate” funding to add telecommunication access. Id. at *1-*2. The E-Rate program subsidizes part of the costs for telecommunications installation – the school itself is responsible for purchasing “ineligible” equipment (like computers). Id. at *1.

Evidence at trial showed that Green colluded with vendors to inflate bids and, essentially, fraudulently shift “ineligible” costs (normally borne by the schools) into “eligible” expenses that the E-Rate program would subsidize. Id. at *2-*3. The government believes this scheme bilked the federal government out of $60 million dollars. Id. at *1.

The glitch was that under “E-Rate’s byzantine application process,” id. at *2, it wasn’t at all clear that what Green did was prohibited by the rat’s nest of regulations around this program. Id. Green lost at trial and was sentenced by the Honorable William A. Alsup to ninety months. Id. at *3.

Issue(s): “Green’s overarching contention on appeal is that her actions were not fraudulent because they were not prohibited by the rules and regulations that governed the E-Rate program during the time period charged in the indictment.” Id. at *3.

Held: “We conclude that the offense of wire fraud does not require that Green’s conduct violated a rule or regulation of the E-Rate program; thus, her specific challenges fail.” Id. at *3.

Of Note: Remarkably, this is essentially an issue of first impression in the Ninth Circuit - and maybe in any circuit. Id. at *4. Judge Tashima(below) begins by reviewing the analogous question of whether wire (or mail) fraud requires a violation of an underlying state law. Id. These federal fraud statutes do not have such a requirement, and from this the Court concludes that “it is settled that wire fraud does not require proof that the defendant’s conduct violated a separate law or regulation, be it federal or state law.” Id. at *5.

The scheme to defraud for mail or wire fraud must only include an “affirmative, material misrepresentation.” Id. at *5. “A defendant’s conduct need not otherwise be illegal in the sense that the government must also prove that the defendant’s conduct violated a specific statute or regulation.” Id. at *5.

Judge Tashima shrugs-off the concern that this rule leaves wire and mail fraud untethered to actual criminal conduct, and ripe for prosecutorial abuse (like honest services fraud). Id. at *5. Others, however, may be less sanguine about the government’s self-restraint. See, e.g., Barry Bonds in Context; see also, Former Brocade exec gets two months in prison for backdating options; see also Misguided Marijuana War, The New York Times (regarding Ed Rosenthal).

How to Use: The victory (such as it is) in United States v. Judy Green case is on vicarious liability. The jury instructions in the case allowed for Green’s vicarious liability for acts that were reasonably foreseeable to her co-schemers. Id. at *12. In a thoughtful discussion, Judge Tashima explains that this is incorrect: vicarious liability for wire (or mail) fraud is limited to acts that were reasonably foreseeable to the defendant alone. Id. Unfortunately, in this case this mistake was harmless error – but the principle bears remembering for future fraud jury instructions.

For Further Reading: If you pay for interstate phone calls, you’ve been subsidizing the program to get broadband into low-income schools. Great concept, lousy execution: the FCC’s “troubled” program has spawned a number of federal indictments across the country in addition to the Green case prosecuted in San Francisco. See article here.


Image of the Honorable Judge Tashima from http://www.totaldenialfilm.com/previewpic.php?pic=judge-Tashima.jpg&title=Federal%20Judge%20Wallace%20Tashima . Image of Kermit the Frog from http://halloweenswimteam.files.wordpress.com/2009/07/kermit.jpg .

Steven Kalar, Senior Litigator N.D. Cal. FPD. Blog at www.ndcalfpd.org

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Can a cop legally crawl underneath your car, in your private driveway, several feet from your home, in the dead-middle of the night, and install a GPS tracking device with which he'll follow your every move for the next week -- all without a search warrant?

Yep, in the Ninth (at least for now). United States v. Pineda-Moreno, __ F.3d __, 2009 WL 59215 (9th Cir. Jan. 11, 2009), decision available here.

Players: Decision by Judge O’Scannlain (below right).

Facts: A DEA agent noticed Pineda-Moreno, and others, buying large amounts of fertilizer at Home Depot. Id. at *1. “Recognizing the fertilizer as a type frequently used to grow marijuana,” (!?!) the agent followed the men to a Jeep and saw them drive away. Id.

A month later, DEA learned that the men were buying large quantities of groceries, irrigation equipment, and deer repellant. Id. Eventually, they followed the men back to a trailer rented by Pineda-Moreno. Id. Over the next four months, the agents tracked Pineda-Moreno using a magnetic GPS device placed under the Jeep. Id. They put GPS devices on the Jeep seven times; five in public places, and twice in his driveway, a few feet from his trailer. Id. There was no gate or “No Trespassing” sign leading to the driveway. Id. [Ed. Note: The agents had no search warrant].

GPS tracking revealed Pineda-Moreno leaving a marijuana grow; later searches revealed two garbage bags full of marijuana. Id. After his suppression motion was denied Pineda-Moreno entered a conditional plea of guilt and brought this appeal. Id.

Issue(s): “Pineda-Moreno argues that the agents violated his Fourth Amendment rights by entering his driveway between 4:00 a.m. and 5:00 a.m. and attaching the tracking devices to the underside of his Jeep.” Id. at *2.

Held: “Pineda-Moreno cannot show that the agents invaded an area in which he possessed a reasonable expectation of privacy when they walked up his driveway and attached the tracking device to his vehicle. Because the agents did not invade such an area, they conducted no search, and Pineda-Moreno can assert no Fourth Amendment violation.” Id. at *3.

Of Note: Pineda-Moreno is a disappointing curtilage decision, treating a driveway as a “semi-private area” that doesn’t deserve heightened Fourth Amendment protection (even when the agents are crawling around, feet from the defendant’s home, at 4:00 a.m. at night). Id. at *2.

More troubling, however, is the Court’s brief discussion of a very complex issue: the use of a sophisticated technology not generally available to the public (GPS tracking) without a warrant. Id. at *3. While an ‘82 Supreme Court case, Knotts, tolerated the use of a beeper in a car, there is a compelling argument that the Supreme’s later thermal-imaging decision in Kyllo modified the Fourth Amendment analysis for sophisticated surveillance technologies. Id. at *3. Pineda-Moreno gives this compelling argument short shrift, particularly in light of three state supreme courts that have held that the warrantless use of tracking devices is unconstitutional under their respective state constitutions. Id. at 4 & n.2 (discussing contrary authority).

How to Use: Like Ninth Circuit authority on the searches of computers preceding Comprehensive Drug Testing, Pineda-Moreno is nineteenth-century analysis glommed onto to twenty-first century technology. The warrantless use of GPS tracking is an unsettled area, likely to provoke Circuit splits and Supreme Court review, and is an issue worth preserving. (The D.C. Circuit has this issue before it now in Jones: see blog here.)

Note also that Pineda-Moreno assumes that a GPS unit only tracks a car in places where a cop could follow anyway. That is untrue: a GPS unit continues to transmit or collect location-data just as regularly when a car is driving on private land where police can not follow without a warrant. Even if Pineda-Moreno survives, it should be distinguished in cases where GPS monitoring revealed the movements of a defendant on land off-limits to cops without warrants.

For Further Reading: Our brainy friends at the Electronic Frontier Foundation have been fighting the good fight on the government’s use of warrantless GPS surveillance. For a good discussion of the enlightened state court decisions clamping down on this abuse, visit the EFF blog here.

Image of the Hon. Diarmuid O'Scannlain from http://monash.edu/news/monashmemo/archive/20040901/ Image of GPS tracking device from http://www.vellard.com.au/images/P/GPSWRT8B.jpg


Steven Kalar, Senior Litigator N.D. Cal. Website at www.ndcalfpd.org

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You have a constitutional right to an attorney who doesn't screw-up the description of a plea agreement. You have a constitutional right to be correctly advised of statutory maximum exposures when you make a decision to represent yourself. Do you have a constitutional right to be properly advised of the statutory maximum when you reject a plea agreement? An interesting question, and one that is neatly sidestepped by the Ninth Circuit in the latest iteration of a hard-fought case. United States v. Forrester, __ F.3d __, 2010 WL 10984 (9th Cir. Jan. 5, 2010), decision available here.

Players: Hard-fought case by former San Diego AFPD Ben Coleman.

Facts: Forrester was charged with conspiracy to manufacture and distribute ecstasy from a big L.A. lab. Id. at *1. He went pro per, and survived a Faretta hearing – but was advised of the wrong stat max during the hearing. Id. at *5. Five days before trial, he and his co-d were offered a package deal that capped their exposure at twenty years. If rejected, the government would file a § 851 enhancement that increased Forrester’s stat max to 30. Id. The pair rejected the deal, were convicted at trial, and Forrester got 30. Id. The Ninth remanded on the first appeal, finding a defective waiver of counsel because of the misadvisement of the stat max. Id.

On remand, Forrester moved the district court to strike the § 851 enhancement because he had been mis-advised of the potential penalties at the Faretta hearing. Id. The district court refused, Forrester pleaded guilty, and got thirty - again. Id.

[Ed. Note: Thirty again? Forrester could have presumably insisted on another trial on remand, at considerable expense in resources. To again max him out at thirty years despite the fact he pleaded guilty the second round - seems bad form. This case was remanded yet again by the Ninth for sentencing errors; hopefully Mr. Forrester will come in below thirty this third time around].

Issue(s): (Among many): “Forrester argues that, once a plea offer has been made, a defendant has a right to be accurately informed about his potential exposure before deciding to reject it. He relies on Nunes v. Mueller, a habeas case in which an attorney misinformed the defendant that he had received a plea offer for 22 years as opposed to 11 years . . . . In Nunes, we suggested that the right to make an informed decision about a plea is a corollary to the right to voluntarily and intelligently plead guilty.” Id. at *6.

Held: “Nunes was based on the well-founded constitutional right to effective assistance of counsel . . . . For Nunes to apply here, we would have to find that Forrester suffered a similar unconstitutional deprivation of rights that tainted his rejection of the plea offer. We decline to do so on these facts. Though a defendant may have a right to voluntarily and intelligently reject a plea offer, we need not reach that question in this case because any error was harmless.” Id. at *6.

Of Note: Forrester bristles with issues. One holding of first impression in the opinion relates to wiretaps. Author Judge M. Smith holds that the government can redact portions of a wiretap affidavit and refuse to give redacted sections to the defense, if the government is willing (and able) to disclaim reliance on those redacted portions. Id. at *8-*9. It is another disappointing blow in the sisyphian task of Title III litigation, but note that the holding is narrow – if the government refuses to disclose a portion (typically, relating to an informant), it can’t rely on information in that portion of the affidavit to defend against a necessity or Franks challenge.

How to Use: Is there a constitutional right to be informed of the details of a plea – and the risks in rejecting it? The panel artfully dodges that question in Forrester, because the co-D rejected the deal anyway and it was a package (hence harmless error).

Judge M. Smith agrees that there is a Sixth Amendment right to effective assistance of counsel, that includes a duty to convey and correctly advise regarding plea offers. Id. at *5-*6. But Forrester presented the question in more stark terms – because the defendant was pro per, the Sixth Amendment wasn’t in play. This is an interesting issue to bear in mind when stuck as advisory or “stand-by” counsel for pro per defendants: maybe there is a constitutional obligation for the court, or the government, to correctly advise a defendant about the benefits and consequences of a plea? And how does that jive with Rule 11, which prohibits a district judge from knowing about the details plea discussions before trial? May be a fertile field for future challenges.

For Further Reading: Forrester II familiar? That’s because Forrester I got a good deal of press for creating new (and bad) Fourth Amendment law on searches of IP addresses. See 512 F.3d 500 (9th Cir. 2008). For a blog on the unfortunate first Forrester, visit the posting, "Finding Forrester" here.



Image of the Hon. Milan D. Smith from http://georgewbush-whitehouse.archives.gov/index.html . Image of the poster from the movie, "Finding Forrester," from http://www.impawards.com/2000/finding_forrester.html

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Gun a Ford Focus, aim it at a DEA Agent, and hit him as he frantically dives for cover. Any problem with that injured agent later testifying at the defendant's trial as a neutral, detached, dispassionate "expert" witness, and answering hypotheticals that mirror the crime charged?

"Nah," says the Ninth. United States v. Anchrum, __ F.3d __, 2009 WL 5125788 (9th Cir. Dec. 30, 2009), decision available here.

Players: Hard-fought case by Alaska AFPD Michael Dieni. Decision by Judge Tallman.

Facts: A suspicious postal inspector lead to a warrant, then a controlled delivery of a box full of drugs. Id. at *1. Michael Anchrum signed for the box, then left in a Ford Focus. Id.

Realizing that he was being followed, he lead DEA Agents in a chase through Anchorage. Id. This culminated in Anchrum gunning the Ford and driving at Agent Solek, who had left his car; Anchrum hit Solek’s knee as the agent dove out of the way. Id. After then hitting another police car, Anchrum fled on foot and was arrested. Id. at *2.

A search of the Ford revealed two pistols, a scale, and the controlled-delivery box. Id. At trial on gun, drug, and assault charges, Agent Solek – the agent who had been hit by the Ford – testified as a percipient witness. Id. There was a sidebar, the AUSA started a question with, “I’d like to shift gears a bit,” and then the same agent then testified as an “expert” witness on drug dealing and guns. Id. The jury convicted on all counts and Anchrum was sentenced to 157 months.

Issue(s): (Among others): “Anchrum claims . . that the government’s use of United States Drug Enforcement Administration . . .Special Agent Kenneth Solek as both a lay and expert witness resulted in testimony inconsistent with this court’s holding in United States v. Freeman, 498 F.3d 893, 904 (9th Cir.2007), as well as Federal Rule of Evidence . . .704(b).” Id. at *1.

Held: “When the district court divided Agent Solek’s testimony into two separate phases it avoided blurring the distinction between Agent Solek’s distinct role as a lay witness and his role as an expert witness. Not only were these two phases separated temporally by a sidebar, but when the prosecutor began the expert phase, she stated, ‘Agent Solek, I’d like to shift gears here a little bit and talk about some of your education, professional training, and law enforcement experience.’ Accordingly, we find that the concerns we expressed in Freeman were avoided here and the district court did not exceed the permissible bounds of its discretion in admitting Agent Solek’s testimony.” Id. at *7.

Of Note: In the 2007 Freeman case, the Ninth devotes several pages to explaining the dangers of permitting an agent to testify to as both a lay witness and an expert witness (dangers that came to pass in Anchrum). The Court in Freeman reviewed for plain error, because the defense did not object to the dual roles of the agent-witness (a fact not revealed in the Anchrum opinion, which involves the less-deferential abuse of discretion standard).

Finally, the Court in Freeman emphasized “the necessity of making clear to the jury what the attendant circumstances are in allowing a government case agent to testify as an expert. If jurors are aware of the witness’s dual roles, the risk of error in these types of trials is reduced.” Id. It is hard to discern that clear explanation of the dual roles in Anchrum – a sidebar and “shifting gears a little bit” is, a best, a muddy demarcation line for a jury. The panel attempts to cram Anchrum into the Freeman holding by describing two “phrases” of the agent’s testimony – but those phases seem to be labels applied by the Ninth, rather than divisions created at trial.

How to Use: Many good district court judges will refuse to let the government go as far as Anchrum. If this regrettable dual-witness scheme has to happen, object, then insist on a clear instruction delimiting the two roles of the witness-agent. A significant temporal break between the testimony would also help. On facts less egregious than those of Anchrum a different Ninth Circuit panel may not tolerate these blurred witness roles.

For Further Reading: For more discussion on the Freeman decision – including a tip on a Confrontation Clause challenge – visit the blog entry for that case here.

Image of the Ford Focus from http://keetsa.com/blog/eco-friendly/which-car-is-best-for-a-back-to-school-teen/ .

Steven Kalar, Senior Litigator, N.D. Cal. FPD. Website at www.ndcalfpd.org

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The slow Christmas week lets us stretch back a bit to catch an important recent case on sentencing loss calculation: United States v. Berger, 587 F.3d 1038 (9th Cir. 2009), decision available here.

Players: Decision by Judge M. Smith.

Facts: Berger was the President, CEO, and Chairman of the Board of Craig Consumer Electronics, Inc. Id. at 1040. With his cohorts he cooked the books and deceived banks that had loaned millions; he also misrepresented the company’s financial viability when it went public.

Berger was convicted of bank and securities fraud, sentenced to six months during the Blakely interregnum, saw his sentence reversed in the Ninth, and was sentenced to 97 months after a Booker remand. Id. at 1042.

He appealed.

Issue(s): “Berger argues that, in sentencing him on remand, the district court erred by: (1) not adhering to the civil loss causation principle in finding shareholder loss, as described by the Supreme Court in Dura Pharmaceuticals, Inc. v. Brouda, 544 U.S. 336 (2005), and (2) applying an erroneous standard of proof in determining total loss for sentencing enhancement purposes.” Id. at 1039-40.

Held: “While we decline to extend the Dura Pharmaceuticals principle to criminal securities fraud, we conclude that the district court’s loss calculation approach was nevertheless flawed. Thus, although we conclude that the district court used the correct standard of proof in determining the total loss, we vacate Berger’s sentence and remand to the district court for resentencing.” Id. at 1040.

Of Note: Berger is an important case because it may mark the beginning of a circuit split, as the Ninth rejects the Dura Pharmaceuticals principle in the context of securities fraud sentencing. Dura Pharmaceutical is a recent Supreme Court case that limited federal civil causes of action for securities fraud. Id. at 1042. In a nutshell, the Dura rule is that i) a fraud must be revealed publicly, and ii) that disclosure must have caused loss to shareholders, before a private cause of action for securities fraud lies. Id.

Although both the Second and Fifth Circuits have strongly suggested that this principle should control in loss calculation for criminal securities fraud (a good thing for the defense), Judge Milan Smith here rejects the rule for the Ninth. Id. at 1033. Judge Smith also rejects the loss calculation method actually used by the district court, which looks to the loss suffered by other companies’ stock when fraud is disclosed. Id. at 1045. What the panel rather conspicuously does not do, however, is explain exactly how loss is to be calculated when “secret” fraud has had no actual impact on stock price. Id. at 1046.

In a world of continued market volatility (and increased securities fraud criminal prosecutions) that unanswered question will be increasingly common.

How to Use: Ironically, in Dura Pharmaceuticals the Supreme Court rejected the Ninth Circuit’s rule of civil liability – and now the Ninth rejects the Supreme Court’s decision in Dura as a rule of criminal liability. The Dura principle may still have some legs, though. First, Judge Smith concedes that this rule regarding loss may make sense in the context of restitution. Id. at 1044 & n.7. Moreover, while the Second and Fifth Circuits haven’t exactly held that Dura Pharmaceuticals applies in the criminal context, they’ve sure suggested as much. A circuit split – and ultimate Supreme Court review – is likely enough that it is worth preserving the objection.

(Aside: does the broad economic principle underlying Dura Pharmaceutical make sense in the mortgage fraud context, where rising property values may have washed out any loss from the underlying fraud?)

For Further Reading: For an interesting perspective on Dura from the losing side of the case, see, What’s Brewing in Dura v. Brouda, available here.


"Stock Market. The Ride" cartoon from http://shop.neatorama.com/product-info.php?stock-market-the-ride-pid106.html

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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The gaul of the Ninth Circuit: giving us the first appellate decision to deal with the realities of the Information Age, without first obtaining DOJ approval. United States v. Comprehensive Drug Testing, __ F.3d __, 2009 WL 2605378 (9th Cir. Aug. 31 2009) (en banc), decision available here.

Players: Solicitor General Elena Kagan, on behalf of Rome - er, the Department of Justice - seeking super rehearing en banc in the Ninth Circuit (rehearing by the entire Ninth Circuit Court of Appeals).

Facts: You’ll recall this fall we trumpeted the most technologically-savvy opinion on computer searches ever written: Chief Judge Kozinski’s en banc decision in Comprehensive Drug Testing (“CDT”). See blog here.

To recap, in CDT the ND Cal USAO had snagged a vast amount of private information from third parties, gleaned from computer searches that roamed far beyond the data originally sought.

Three district judges quashed later subpoenas based on this computer data, and peppered their quashals with allegations of government manipulation and misrepresentations. The original three-judge Ninth panel reversed the quashals, but the en banc reversed the panel and sustained the district courts. C.J. Kozinski ended the en banc CDT opinion by setting forth procedures with which the government should (must?) comply for future computer searches.

The government – and specifically, S.G. Kagan – has now sought, for the first time in history, a full rehearing en banc by the entire court of the Ninth Circuit.

Issue(s): Did the en banc panel “step[ ] outside of the proper role of an Article III court when it set forth detailed protocols that purport to bind, and that are being understood as binding, magistrate and district judges in future cases[?]” Brief for the United States in Support of Rehearing En Banc by the Full Court, at 2.

Held: “The court is considering whether it should grant panel or full-court rehearing in this matter and will issue an order granting or denying rehearing in due course.” Ord., Chief Judge Kozinski, Dec. 18, 2009.

Of Note: When Blakely was decided, DOJ cried the sky was falling and warned that sentencing would grind to a halt. Defendants, however, continued to be incarcerated with grim efficiency.

When Booker was decided, DOJ cried the sky was falling and concocted emergency measures to “save” the guidelines. Defendants, however, continued to be shuffled away to serve depressingly long terms, with barely a blip on the sentencing stats.

Given its track record with Blakely and Booker, Justice’s latest cry that the sky is falling after CDT merits a healthy skepticism.

The government’s super en banc petition frets that its investigations are off-track because of the CDT procedures. It does not reveal, however, that filter-teams have long been routinely used in white collar cases with little impact on conviction rates. DOJ neglects to disclose how many computer investigations have in fact gone forward using CDT procedures. The brief omits the CDT-like protocol that enlightened ND Cal magistrates have had in place since 2000, with no negative impact on computer searches or prosecutions. Finally, DOJ ignores new technology which can filter and focus computer searches in ways that were impossible even a decade ago, making the CDT procedures both realistic and workable. Let’s hope the Ninth recognizes that CDT is the wrong case for the very first super en banc.

How to Use: How to best use CDT has been the subject of much discussion in the ND Cal FPD and among the Northern District panel. Given the current procedural posture of the case, best to e-mail or call to discuss CDT issues.

For Further Reading: “The government has moved to further stay the mandate ‘through the disposition of [this court’s] consideration whether to grant en banc review and its en banc consideration of the case or, if [this court] denies en banc review, through the expiration of the time for filing a petition for a writ of certiorari, or, if a petition is filed, the disposition of such a petition for a writ of certiorari.’ Quite a mouthful, and wholly unnecessary. I have already stayed the mandate through the time for filing a timely petition for certiorari. What qualifies as timely is between the government and a higher authority.” Ord., Chief Judge Kozinski, Nov. 12, 2009.

Image of Asterix from http://www.coloriage.tv/dessincolo/Asterix.png

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Nothing is worse than Herring gone bad. Happily, this week the Ninth takes out some bad Herring bits from an otherwise admirable opinion. United States v. Monghur, __ F.3d __, 2009 WL 4432567 (9th Cir. Dec. 4, 2009) (Ord. & Amend. Op.), decision available here.

Players: Important win by AFPD Jason Carr and D. Nev. Defender Franny Forsman, who doggedly pushed on the Herring issue.

Facts: In August of this year we touted the defense victory in the first Monghur opinion. See blog here. Monghur was in custody, facing attempted murder and battery charges. Id. at *1. He made jail calls to a buddy, instructing his pal to pick up a key to his apartment and to “get the thing” “in the green” in his closet. Id. Agents listened to the taped calls and convinced Monghur’s mom to consent to a warrantless search. Id. Agents found a .38 in a green opaque container in Monghur’s closet; he was charged with § 922(g)(1). Id.

During the suppression hearing, the magistrate rejected mom’s authority to authorize the search of the green box, and rejected exigency (the government’ didn’t appeal those theories). Id. at *2.

In the first Ninth Circuit opinion, Judge Tallman rejected the government’s theory that Moghur’s veiled discussions on a (knowingly-taped) jail phone line somehow waived his privacy interest in the green box. Id. at *4. To our chagrin, however, after finding the warrantless search unlawful Judge Tallman mused upon Chief Justice Robert’s new Herring rule and instructed the district court to analyze the case under Herring in the first instance on remand. Monghur, 576 F.3d 1009, 1013-14 (9th Cir. 2009) (amend. on petit. rehearing en banc).

Issue(s): The Supreme Court’s Herring decision held that the exclusion of evidence for a Fourth Amendment violation was only appropriate if the unlawful search involved “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” 129 S. Ct. 695, 702 (2009) (decision available here). Grossly oversimplified, Herring held that exclusion isn’t appropriate for individual-event, merely negligent errors in a warrantless search. The Nevada FPD petitioned for rehearing en banc, arguing that the Herring bits in Monghur should be taken out.

Held: The chunk of Herring was removed, an amended opinion issued, and the PFR denied.

Of Note: The amended Monghur decision is a good sign that the Ninth won’t allow Herring to expand beyond the proper limits of the new rule. That’s particularly good news for United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009) (decision available here). You’ll recall that in Gonzalez AFPD Rebecca Pennell convinced Judge B. Fletcher to put the brakes on Herring in a Gant car stop case. The government has petitioned for rehearing of Gonzalez: let's hope the amended Monghur decision bodes ill for the government’s efforts.

How to Use: Herring is dangerous because the government (incorrectly) argues that the opinion extends the Leon “good faith” loophole for exclusion for searches with warrants, to apply in all warrantless searches. That it did not do.

At best (or worst), Herring applied the Leon rationale for exclusion of evidence to a narrow category of warrantless searches, involving one-off, mere negligence by the cops. Herring requires our vigilance to avoid “rule creep:” it should be the very rare warrantless search in which Herring becomes an issue at all.

For Further Reading: For a compelling argument on how Herring hamstringed the most effective restraint on the government’s careless use of records technology, see Professor George M. Dery, Good Enough For Government Work: The Court’s Dangerous Decision, in Herring v. United States, to Limit the Exclusionary Rule to Only the Most Culpable Police Behavior, 20 George Mason Univ. Civil Rights Law Journal, 1 (2009).


Image of herring from http://www.thedailygreen.com/cm/thedailygreen/images/0z/herring-lg.jpg


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Like Nigel Tufnel, the Arizona Federal Public Defender likes Eleven. Rule Eleven of the Federal Rules of Criminal Procedure, to be precise -- the Rule that brought that office two big victories in the Ninth this week. See United States v. Macinas-Flores, 2009 WL 4282018 (9th Cir. Dec. 2, 2009), decision available here; see also United States v. Roblero-Solis, 2009 WL 4282022 (9th Cir. Dec. 2, 2009), decision available here.

(Ed Note - this memorandum discusses Macnas-Flores, and salutes the Roblero-Solis opinion in the "for further reading" section).

Players: Big win for D. Az. AFPD Dan Kaplan.

Facts: Folks in the US tipped-off ICE that their undocumented-alien relatives were being held hostage in a Phoenix stash house by alien smugglers. Id. at *1. The relatives were told to pay the smugglers, or the aliens would be beaten and raped. Id. ICE and the Phoenix police searched the stash house and found aliens, Macinas-Flores (and a co-defendant) and a loaded shotgun. Id.

On the eve of trial Macinas-Flores tried to plead to a deal to the gun alone (a § 924(c) charge), with a locked range of 25-45 years. Id. When the district court launched into the plea inquiry, Macinas-Flores answered, “I’m not really guilty.” Id. at *2. The trial judge stopped the plea proceeding, rejected the plea, called in the jury, and – after conviction – sentenced the defendant to life.

Issue(s): “Defendant argues that the district court erred in its handling of his guilty plea. He contends that the plea met all the requirements of Fed. R. Crim. P. 11(b), and that therefore the court had no discretion to reject it . . . . Alternatively, defendant argues that even if the court had discretion to reject his plea, it did not adequately explain its reasons for doing so and thus failed to actually exercise discretion.” Id.

Held: “Because the district court abruptly cut off the plea colloquy, we cannot conclude the plea satisfied all of Rule 11(b)’s requirements. As discussed below, however, we agree with defendant’s alternative argument and therefore the district court’s rejection of defendant’s guilty plea and remand for a new plea hearing.” Id.

Of Note: Macinas-Flores denied guilt, and the district court erred by rejecting the plea? The key to this counter-intuitive holding is Alford or nolo contendere pleas, “a plea of guilty in which a defendant maintains his innocence.” Id. at *3. A district court doesn’t have to accept an Alford plea, but it does have to engage in the Rule 11 inquiry and analysis that permits an appellate court to review the proceeding. That didn’t happen here, which bought the defendant a reversal and a chance to reclaim that fantastic 25-45 year deal

How to Use: Wisconsin District Judge Lynn S. Adelman (right) visits the Ninth and authors this opinion. (Recall his admirable and famous decision in the post-Booker Ranum opinion (blog on Ranum available here)). He's a seasoned and thoughtful jurist and a welcome visitor - hope he returns to the West again soon.

In Macinas-Flores, Judge Adelman brushes back the government’s whine of plain error in an analysis that is worth a close read. Id. at *8. Turns out a defendant does not “object” to a court’s ruling (like refusal to take a plea): instead, the party takes an “exception to the ruling.” Id. at *8. Under Fed. Rule of Criminal P. 51(a), exceptions to rulings of the court are unnecessary. Hence, one needn’t complain about a court’s erroneous ruling to avoid plain error review. Id. This is an adoption of a Seventh Circuit rule and is new to the Ninth – worth exploring the outer parameters of this distinction if you’re trying to dodge plain error review.

For Further Reading: One victory was not enough for Arizona last week – “the intrepid federal public defender” in Tuscon (a direct quote) chalked up another Rule 11 win as well. United States v. Roblero-Solis, et al., 2009 WL 4282022 (9th Cir. Dec. 2, 2009). Hard to imagine, but in enlightened Tuscon federal magistrates conducted the Rule 11 colloquy with fifty to a hundred defendants at a time. Id. at *2-*3. The government’s “Operation Streamline” churned undocumented aliens through the court en masse and cranked out dozens of simultaneous misdemeanor § 1325 convictions. Id. at *2.

Judge Noonan is thankfully unpersuaded by the remarkable efficiency of this judicial cattle call – he writes that the procedure violates Rule 11's demand that defendants be addressed “personally.” Id. at *8.

And the standard of review for the procedure in this case? Plain error! A bit of a head-scratcher, considering the Macinas-Flores rejection of Rule 11 plain error was delivered the same day . . . .


Image of Spinal Tap's Amps from http://citifield.files.wordpress.com/2009/07/spinaltap-11.jpg . Image of the Honorable Lynn Adelman from http://www.legis.wi.gov/senate/sen28/news/Photos/2009/images/Inauguration_adelman.jpg

Steven G. Kalar, Senior Litigator N.D. Cal. FPD.

To have the federal judge presiding over your civil case refer you to the USAO for perjury prosecution is bad news. To get caught planning your escape to the Caymans on the eve of your trial is worse. And then, when a jailhouse snitch accuses of you plotting to kill the judge: well, it is all downhill from there. United States v. Amr Mohsen, __ F.3d __, 2009 WL 4067632 (9th Cir. Nov. 25, 2009), decision available here.

Players: Per curiam decision by Judges B. Fletcher, Kleinfeld and DJ Duffy. Hard-fought appeal by SF appellate guru Dennis Riordan.

Facts: (Ed. Note: There are remarkably few facts recited in this unfortunately brief per curiam decision, so the facts below are gleaned from news articles, briefs, and docket entries). Amr Mohsen was a successful Silicon Valley inventor who was charged with perjury in relation to a civil patent dispute. Days before that perjury trial was scheduled to begin, Mohsen (who was on bail) was arrested as he prepared to flee to the Caymans. See article here.

While in jail awaiting trial on perjury (and now, contempt) charges, Mohsen allegedly tried to hire a fellow inmate to threaten witnesses and to kill N.D. Cal. District Judge William Alsup. Id. This gambit sparked a superseding indictment with attempted witness tampering, solicitation to commit arson, and solicitation to commit murder charges.

Because of the threat against Judge Alsup, ED Cal Senior District Judge Shubb (above right) took and tried the case. Mohsen, 2009 WL 4067632, *1. During the bifurcated trial the jury sent a note requesting the indictment: the district judge responded to the note without first informing the parties. Id. at *2. Mohsen was convicted of some of the counts but beat the solicitation to murder charges; he was sentenced to 204 months. J&C Ord.

Issue(s): (Among many) “Mohsen contends that the judge should have consulted the parties or counsel before responding to the jury’s request to see the indictment with the ‘specific charges.’” Id. at *2.

Held: “He is correct. The judge erred. However, the error was harmless beyond a reasonable doubt.” Id.

Of Note: The new law in this case is not that it is error for a judge to respond to a jury note without getting the input of counsel. The (arguably) new law is instead that this mistake (in this setting) is not structural error that requires reversal and new trial, but is instead a problem subject to harmless error analysis on appeal. Id. at *2.

The panel cursorily distinguishes Judge Berzon’s long discussion of this line of law in the Ninth’s infamous “button” case: “Unlike the communication in Musladin, the jury note here was not a question about the law governing the jury’s deliberations.” Id. at *2.

The decision's terse analysis shines little light on important issue: when is a mid-deliberation communication with the jury, where defense counsel is not informed or involved, a “critical stage” that requires automatic reversal? Impossible to glean a rule from the few paragraphs in the case.

How to Use: Counsel-less conversations between the judge and jury used to be a reversal bullet. Now there’s a regrettably high chance that such a problem will be sidestepped by the Ninth’s redemptive “harmless error” review. Thus, if confronted with mid-deliberation communications between a judge and jury (where you haven’t been invited to the party) develop the prejudice record while in trial. That prejudice showing, unfortunately, may be necessary when battling harmless error review on appeal.

For Further Reading: For an interesting article summarizing the devolution of this case from civil litigation to attempted murder charges, see here. For a compelling summary of the defense attack on this conviction, see Dennis Riordan’s letter summarizing the appeal here. For a recap of this appeal, including Riordan’s plans to seek rehearing en banc, see the San Jose Mercury News article here.


Image of the Hon. Judge William B. Shubb from http://207.41.19.15/pico/pico530.nsf/834468cf608231b488256b11005e0a18/53a9cadcdc6b62ce8825707a0055968c?OpenDocument

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org



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In Mahan, the Ninth creates a new rule and joins five other federal circuits that have held exchanging guns for drugs is using firearms "in furtherance" of drug trafficking, in violation of 18 USC § 924(c). United States v.William Mahan, __ F.3d __, 2009 WL 3807100 (9th Cir. Nov. 16, 2009), decision available here.

(Or, arguably, the Ninth has joined two other federal circuits that have so held in a published decision . . . .)

Players: Decision by Judge O’Scannlain (left), joined by Judge N. Randy Smith and Senior District Judge Wolle.

Facts: Oregonians Zane and Shawn offered to sell stolen guns to defendant Mahan. Id. at *1. The three smoked some meth while discussing the deal, then settled on trading the guns for 1/8th of an ounce of meth and $700. Id. Among other things, Mahan was convicted at trial for 18 USC § 924(c), possession of a gun “in furtherance” of a drug transaction. Id. Mahan’s Rule 29 motion was denied.

Issue(s): “We must decide whether an individual who trades drugs for guns possesses the firearms ‘in furtherance of’ his drug trafficking offense.’” Id. at *1.

Held: “Five other courts of appeals have confronted cases factually similar to this one, and all have either decided or assumed without deciding that a defendant who, like Mahan, received firearms in exchange for drugs possesses those firearms ‘in furtherance of’ a drug trafficking offense.” Id. at *2. “These cases demonstrate the common sense proposition that when one accepts a gun in exchange for drugs, the gun is an integral part of the drug sale because without the gun - the ‘currency’ for the purchase - the drug sale would not take place.” Id. at *3. “In light of the unanimity and clarity of our sister circuits’ precedent, we decline Mahan’s invitation to create a circuit split, and hold that a defendant who accepts firearms in exchange for drugs possesses the firearms ‘in furtherance of’ a drug trafficking offense.” Id. (emphasis added).

Of Note: The Mahan Court suggests that five other circuits have unanimously adopted this panel’s new § 924(c) rule. That suggestion bears further scrutiny. Mahan cites the unpublished Fourth Circuit decision, Boyd. Boyd, however, was issued in 2006: before memorandum dispositions became “cite-able” under new Federal Rule of Appellate Procedure 32.1. Indeed, the Fourth Circuit “disfavors” citation of its unpublished decisions issued before January 1, 2007. See U.S. Ct. App. 4th Cir. Rule 32.1.

The cited, two-page First Circuit memorandum disposition, Dolliver, was at least issued after the inane new rule that permits the citation of mem dispos as of January 1, 2007. First Circuit Rule of Appellate Procedure 32.1.0, however, limits the citation of mem dispos for their “persuasive” value and explains that they are not binding precedent. (That rule also requires parties to note that these decisions are “unpublished” in their briefs – a fact not mentioned in Mahan).

Of the three circuits with published decisions on this § 924(c) issue, one has “assumed without deciding” that guns traded for drugs are used “in furtherance” of a trafficking offense.

In short, only two circuits have held in a published decision that this type of “guns-for-drugs” trade is a sufficient nexus to support a § 924(c) conviction. The Mahan panel hangs the Ninth Circuit’s new § 924(c) rule on the “unanimity and clarity of our sister circuits’ precedent”: not quite as impressive a wall of authority as it appears at first glance.

How to Use: This is an infrequent fact pattern, but if it comes up an objection is worthwhile. As discussed above, the phalanx of circuit authority may not be as formidable as suggested in the Mahan opinion, and the Supreme Court may end up clarifying the real meaning of “in furtherance” in the Section 924(c) statute.

For Further Reading: The citation of memorandum dispositions is bad for indigent defense. The classic mem dispo quickly affirms a conviction or denial of a motion in a down-and-dirty document with little analysis and few facts. Bringing these bastard children of the judiciary into the case law clan infects clean jurisprudence and principled analysis with sloppy (and often, defense-hostile) reasoning.

For a contrary view, see the interesting article on the “new” rule allowing citation of mem dispos – and defenders’ responses. Stephen R. Barnett, The Dog that Did Not Bark: No-Citation Rules, Judicial Conference Rulemaking, and Federal Public Defenders, 62 Wash. & Lee Rev. 1491 (2005), available here.


Image of the Hon. Diarmuid O'Scannlain from http://www.abovethelaw.com/images/entries/diarmuid%20o%27scannlain%20diarmuid%20f%20o%27scannlain.jpg

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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In Mahan, the Ninth creates a new rule and joins five other federal circuits that have held exchanging guns for drugs is using firearms "in furtherance" of drug trafficking, in violation of 18 USC § 924(c). United States v.William Mahan, __ F.3d __, 2009 WL 3807100 (9th Cir. Nov. 16, 2009), decision available here.

(Or, arguably, the Ninth has joined one other federal circuit that has so held in a published decision . . . .)

Players: Decision by Judge O’Scannlain (left), joined by Judge N. Randy Smith and Senior District Judge Wolle.

Facts: Oregonians Zane and Shawn offered to sell stolen guns to defendant Mahan. Id. at *1. The three smoked some meth while discussing the deal, then settled on trading the guns for 1/8th of an ounce of meth and $700. Id. Among other things, Mahan was convicted at trial for 18 USC § 924(c), possession of a gun “in furtherance” of a drug transaction. Id. Mahan’s Rule 29 motion was denied.

Issue(s): “We must decide whether an individual who trades drugs for guns possesses the firearms ‘in furtherance of’ his drug trafficking offense.’” Id. at *1.

Held: “Five other courts of appeals have confronted cases factually similar to this one, and all have either decided or assumed without deciding that a defendant who, like Mahan, received firearms in exchange for drugs possesses those firearms ‘in furtherance of’ a drug trafficking offense.” Id. at *2. “These cases demonstrate the common sense proposition that when one accepts a gun in exchange for drugs, the gun is an integral part of the drug sale because without the gun - the ‘currency’ for the purchase - the drug sale would not take place.” Id. at *3. “In light of the unanimity and clarity of our sister circuits’ precedent, we decline Mahan’s invitation to create a circuit split, and hold that a defendant who accepts firearms in exchange for drugs possesses the firearms ‘in furtherance of’ a drug trafficking offense.” Id. (emphasis added).

Of Note: The Mahan Court suggests that five other circuits have unanimously adopted this panel’s new § 924(c) rule. That suggestion bears further scrutiny. Mahan cites the unpublished Fourth Circuit decision, Boyd. Boyd, however, was issued in 2006: before memorandum dispositions became “cite-able” under new Federal Rule of Appellate Procedure 32.1. Indeed, the Fourth Circuit “disfavors” citation of its unpublished decisions issued before January 1, 2007. See U.S. Ct. App. 4th Cir. Rule 32.1.

The cited, two-page First Circuit memorandum disposition, Dolliver, was at least issued after the inane new rule that permits the citation of mem dispos as of January 1, 2007. First Circuit Rule of Appellate Procedure 32.1.0, however, limits the citation of mem dispos for their “persuasive” value and explains that they are not binding precedent. (That rule also requires parties to note that these decisions are “unpublished” in their briefs – a fact not mentioned in Mahan).

Of the two circuits with published decisions on this § 924(c) issue, one has “assumed without deciding” that guns traded for drugs are used “in furtherance” of a trafficking offense.

In short, only the Sixth Circuit has held in a published decision that this type of “guns-for-drugs” trade is a sufficient nexus to support a § 924(c) conviction. The Mahan panel hangs the Ninth Circuit’s new § 924(c) rule on the “unanimity and clarity of our sister circuits’ precedent” (one Sixth Circuit case): a slim reed, indeed.

How to Use: This is an infrequent fact pattern, but if it comes up an objection is worthwhile. As discussed above, the phalanx of circuit authority may not be as formidable as suggested in the Mahan opinion, and the Supreme Court may end up clarifying the real meaning of “in furtherance” in the Section 924(c) statute.

For Further Reading: The citation of memorandum dispositions is bad for indigent defense. The classic mem dispo quickly affirms a conviction or denial of a motion in a down-and-dirty document with little analysis and few facts. Bringing these bastard children of the judiciary into the case law clan infects clean jurisprudence and principled analysis with sloppy (and often, defense-hostile) reasoning.

For a contrary view, see the interesting article on the “new” rule allowing citation of mem dispos – and defenders’ responses. Stephen R. Barnett, The Dog that Did Not Bark: No-Citation Rules, Judicial Conference Rulemaking, and Federal Public Defenders, 62 Wash. & Lee Rev. 1491 (2005), available here.


Image of the Hon. Diarmuid O'Scannlain from http://www.abovethelaw.com/images/entries/diarmuid%20o%27scannlain%20diarmuid%20f%20o%27scannlain.jpg

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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