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OPINION: State v. Torgeson
OPINION: State v. McMaster
OPINION: State v. Willis
UNPUBLISHED OPINION: Metzger v. Polejewski
The Montana Supreme Court has issued an Unpublished Opinion in the following matter:
DA 07-0407,
LINDA METZGER, individually and on behalf of the West McIver Road Neighbors, an Association of Concerned Citizens,
Plaintiffs and Appellees,
v.
PAM POLEJEWSKI and MICHAEL HANSON,
Defendants and Appellants.
UNPUBLISHED OPINION: City of Missoula v. Dunn
Case o' The Week: Bybee Boosts Immunity, Straub
Judge Bybee (left) gives a big boost to defense immunity in an important decision that elaborates on the Williams test -- permitting the effects of the government's immunity decisions to establish a constitutional violation. See United States v. Straub, 2008 WL 3547541, (Aug. 15, 2008), decision available here.
Players: Decision by Judge Bybee, joined by Judges D.W. Nelson and Kleinfeld.
Facts: Straub, a member of Oregon’s “White Neck Crew,” allegedly dealt drugs and shot at other dealers as he stole from them. Id. at *1. An immunized government snitch pegged Straub as the shooter in one charged robbery. Id. The defense proffered an impeachment witness who would recount a bar confession wherein the snitch admitted to being the shooter. Id. at *2. This defense witness, however, wanted immunity – and the court refused to give it. Id. at *2-*3.
After conviction at trial, the Ninth remanded in a mem dispo for an evidentiary hearing on the need for court-ordered immunity. Id. at *3.
This hearing revealed that the government had offered “use immunity, informal immunity, sentence reductions, and even cash . . . to the prosecution’s other witnesses for their testimony against Straub” Id. at *5. Eleven of twelve government witnesses had gotten some sort of break. Id. The district court nonetheless stood by its initial denial of immunity, finding no evidence of prosecutorial misconduct. Id. at *7. Straub appealed again.
Issue(s): “Straub claims that the . . . court’s refusal to compel the prosecution to grant use immunity to [his] defense witness . . . violated his due process rights under the Fifth Amendment . . . .
We must address the question left open by Williams, whether a defendant requesting compelled use immunity on the ground that his witness has relevant testimony that directly contradicts that of an immunized prosecution witness must prove that the prosecution’s purpose in denying use immunity to the defense witness was to distort the fact-finding process, or merely that the prosecution’s selective denial of use immunity had the effect of distorting the fact-finding process.” Id. at *1.
Held: “Even where the government has not denied a defense witness immunity for the very purpose of distorting the fact-finding process, the government may have stacked the deck against the defendant in a way that has severely distorted the fact-finding process at trial . . . . Id. at *12.
"[W]here the government has liberally used its discretion to grant immunity to numerous witnesses, and the defendant’s witness could offer relevant testimony that would directly contradict that of an immunized government witness, the trial may become so fundamentally unfair that the defendant’s due process rights are implicated.” Id.
“We now hold that for a defendant to compel use immunity the defendant must show that: (1) the defense witness’s testimony was relevant; and (2) either (a) the prosecution intentionally caused the defense witness to invoke the Fifth Amendment right against self-incrimination with the purpose of distorting the fact-finding process; or (b) the prosecution granted immunity to a government witness in order to obtain that witness’s testimony, but denied immunity to a defense witness whose testimony would have directly contradicted that of the government witness, with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial.” Id. at *14.
"We reverse the district court's denial of Straub's request to compel use immunity." Id. at *18.
Of Note: Straub is a leading case on defense immunity with a valuable new rule for the most-likely trial scenarios.
In Williams v. Woodford, the Ninth held that a refusal to grant immunity rises to a constitutional violation when 1) the defense witness’s testimony is relevant, and 2) the prosecution’s refusal to grant immunity deliberately distorted the fact-finding process. 384 F.3d 567, 600 (9th Cir. 2004). Good luck, of course, getting a prosecutor to admit to “deliberate distortion.”
Straub’s new rule is that the defense can prove this second prong by showing that the effects of immunity for government witnesses – with no immunity for defense witnesses – “stacked the deck against the defendant.” Id. at *12. This is a much more manageable defense burden: proof of prosecutorial intent via proof of effects.
How to Use: Ask! The government here argued that the defense never formally requested use immunity. Id. at *16 n.9. Luckily, Judge Bybee rejects that complaint as too formalistic – but why run the risk? A brief letter or a formal request on the record for a government grant of immunity helps to block this government dodge.
For Further Reading: It helps to know the DOJ’s immunity rules when going down this road. They can be found here.
Image of Judge Jay Bybee from http://www.ibabuzz.com/politics/2008/02/13/circuit-judge-accused-of-pro-torture-bias/
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org.
.
Players: Decision by Judge Bybee, joined by Judges D.W. Nelson and Kleinfeld.
Facts: Straub, a member of Oregon’s “White Neck Crew,” allegedly dealt drugs and shot at other dealers as he stole from them. Id. at *1. An immunized government snitch pegged Straub as the shooter in one charged robbery. Id. The defense proffered an impeachment witness who would recount a bar confession wherein the snitch admitted to being the shooter. Id. at *2. This defense witness, however, wanted immunity – and the court refused to give it. Id. at *2-*3.
After conviction at trial, the Ninth remanded in a mem dispo for an evidentiary hearing on the need for court-ordered immunity. Id. at *3.
This hearing revealed that the government had offered “use immunity, informal immunity, sentence reductions, and even cash . . . to the prosecution’s other witnesses for their testimony against Straub” Id. at *5. Eleven of twelve government witnesses had gotten some sort of break. Id. The district court nonetheless stood by its initial denial of immunity, finding no evidence of prosecutorial misconduct. Id. at *7. Straub appealed again.
Issue(s): “Straub claims that the . . . court’s refusal to compel the prosecution to grant use immunity to [his] defense witness . . . violated his due process rights under the Fifth Amendment . . . .
We must address the question left open by Williams, whether a defendant requesting compelled use immunity on the ground that his witness has relevant testimony that directly contradicts that of an immunized prosecution witness must prove that the prosecution’s purpose in denying use immunity to the defense witness was to distort the fact-finding process, or merely that the prosecution’s selective denial of use immunity had the effect of distorting the fact-finding process.” Id. at *1.
Held: “Even where the government has not denied a defense witness immunity for the very purpose of distorting the fact-finding process, the government may have stacked the deck against the defendant in a way that has severely distorted the fact-finding process at trial . . . . Id. at *12.
"[W]here the government has liberally used its discretion to grant immunity to numerous witnesses, and the defendant’s witness could offer relevant testimony that would directly contradict that of an immunized government witness, the trial may become so fundamentally unfair that the defendant’s due process rights are implicated.” Id.
“We now hold that for a defendant to compel use immunity the defendant must show that: (1) the defense witness’s testimony was relevant; and (2) either (a) the prosecution intentionally caused the defense witness to invoke the Fifth Amendment right against self-incrimination with the purpose of distorting the fact-finding process; or (b) the prosecution granted immunity to a government witness in order to obtain that witness’s testimony, but denied immunity to a defense witness whose testimony would have directly contradicted that of the government witness, with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial.” Id. at *14.
"We reverse the district court's denial of Straub's request to compel use immunity." Id. at *18.
Of Note: Straub is a leading case on defense immunity with a valuable new rule for the most-likely trial scenarios.
In Williams v. Woodford, the Ninth held that a refusal to grant immunity rises to a constitutional violation when 1) the defense witness’s testimony is relevant, and 2) the prosecution’s refusal to grant immunity deliberately distorted the fact-finding process. 384 F.3d 567, 600 (9th Cir. 2004). Good luck, of course, getting a prosecutor to admit to “deliberate distortion.”
Straub’s new rule is that the defense can prove this second prong by showing that the effects of immunity for government witnesses – with no immunity for defense witnesses – “stacked the deck against the defendant.” Id. at *12. This is a much more manageable defense burden: proof of prosecutorial intent via proof of effects.
How to Use: Ask! The government here argued that the defense never formally requested use immunity. Id. at *16 n.9. Luckily, Judge Bybee rejects that complaint as too formalistic – but why run the risk? A brief letter or a formal request on the record for a government grant of immunity helps to block this government dodge.
For Further Reading: It helps to know the DOJ’s immunity rules when going down this road. They can be found here.
Image of Judge Jay Bybee from http://www.ibabuzz.com/politics/2008/02/13/circuit-judge-accused-of-pro-torture-bias/
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org.
.
UNPUBLISHED OPINION: Smith v. State
UNPUBLISHED OPINION: Harris v. Larson
OPINION: State v. Merry
OPINION: Billings Gazette v. State
The Montana Supreme Court has issued an Opinion in the following matter:
DA 07-0500,
BILLINGS GAZETTE,
Petitioner and Appellant,
and
WILLIAM D’ALTON,
Intervenor and Petitioner,
v.
THE STATE OF MONTANA, by and through its COMMISSION ON PRACTICE and OFFICE OF DISCIPLINARY COUNSEL,
Respondents and Appellees.
OPINION: Country Highlands Homeowners Assoc., Inc. v. Board of Co. Commissioners
The Montana Supreme Court has issued an Opinion in the following matter:
DA 06-0679,
COUNTRY HIGHLANDS HOMEOWNERS ASSOCIATION, INC., a Montana nonprofit mutual benefit corporation, MARTIN GILMAN and ALAN McNEIL,
Plaintiffs and Appellants,
v.
BOARD OF COUNTY COMMISSIONERS OF FLATHEAD COUNTY, the governing body of the County of Flathead, acting by and through GARY HALL, ROBERT W. WATNE, and HOWARD W. GIPE, and JOE BRENNEMAN,
Defendants and Appellees.
OPINION: Becker v. Rosebud Operating
OPINION: Apple Park, LLC v. Apple Park Condos.
OPINION: Corporate Air v. Edwards Jet
The Montana Supreme Court has issued an Opinion in the following matter:
DA 06-0039,
CORPORATE AIR, AIR SERVICES LIMITED PARTNERSHIP, SKYWALKER INTERNATIONAL, INC., MICHAEL W. OVERSTREET, LINDA OVERSTREET, and LUKE OVERSTREET,
Plaintiffs, Counter-Defendants and Appellees,
v.
EDWARDS JET CENTER, MONTANA, INC., d/b/a EDWARDS JET CENTER, a Montana corporation, and A. CLIFFORD EDWARDS, an individual,
Defendants, Counter-Plaintiffs and Appellants
OPINION: State v. Shelton
OPINION: Runstrom v. Allen
Case o' The Week: The Ten Most Terrifying Words in the English Language: "I'm From the Government and I'm Here to Help You," Garcia-Aguilar
The government developed a sudden concern for defendants' rights to proper plea advisements in Garcia-Aguilar -- and Chief Judge Kozinski ain't buying it. Garcia-Aguilar v. United States District Court for the Southern District of California, 2008 WL 3009680 (9th Cir. Aug. 6, 2008), decision available here. This laudable San Diego Defender mandamus victory is a defense win in a quirky little corner of Section 1326 law, with some good ramifications for other defense strategies.
The case does, however, embrace a rule that promotes sloppy advisements during guilty pleas -- not a great development for Rule 11 practice.
Players: Nice win for San Diego Defenders Zandra Lopez, Michelle Betancourt, and Shaffy Moeel. Former San Diego AFPD David Zugman on the team with the briefing and on oral argument.
Facts: San Diego had “defective” § 1326 indictments, that failed to allege that an alien had been removed from the country after having been convicted of a felony. Id. at *1. The Ninth has held that this flaw is Apprendi error that (theoretically) limits a defendant’s exposure to two years. Id. at *2 (citing United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir. 2006)).
Garcia-Aguilar and other § 1326 defendants entered guilty pleas before the magistrates to these indictments. After the guilty pleas the government “belatedly” brought superseding indictments that alleged the necessary missing fact. Id. To fix its mistake, the government argued that the original guilty plea colloquies were defective, because the magistrates had advised the defendants they were looking at twenty years – when in reality, they were only looking at two years because of the “defective” indictment. Id.
On the government’s motion, the district courts refused to accept these unconditional guilty pleas. Id.
Issue(s): “We consider the district court’s refusal to accept defendants’ unconditional guilty pleas.” Id. at *1.
Held: “The district court shall accept defendant’s unconditional pleas to the original indictments.” Id. at *4.
Of Note: As Arizona Defender Jon Sands has noted, Chief Judge Kozinski gives us the following wonderful quote: “These consolidated cases show again why the ten most terrifying words in the English language may be, ‘I’m from the government and I’m here to help you.” Id. at *1. Hard to fault a decision that is both a defense win and that mocks the government.
The troubling holding, however, is that it doesn’t matter how badly a court screws up an advisement at a plea, as long as it gets the highest possible maximum sentence right. Id. at *2. (Here, the magistrates were eighteen years off). Why not just guess “life,” and avoid any potential Rule 11 error? When a plea advisement is just a wild stab at the worst-case-scenario, then it stops becoming an advisement altogether. This Garcia-Aguilar "advisement rule" isn’t new, and maybe its full scope will be limited to these odd facts, but the case doesn’t exactly encourage careful practice in the trial courts.
How to Use: Does this mandamus decision have application beyond this quirky corner of Section 1326 litigation? It does, in our post-Apprendi world. Occasionally the feds screw up an indictment and fail to allege a fact that increases a statutory maximum sentence. What happens if a defendant jumps on that defect and pleads guilty out of the gate? Game over – under Garcia-Aguilar, the government can’t supersede: “the government has no power to force the defendant to go through the ordeal again to serve its own purpose.” Id. at *3. If this results in a dramatically lower sentence for the defendant, then “so be it.” Id. at *4. Moreover, if the district court balks, mandamus lies to force the court to take the plea.
Of course, there’s a caveat or two. In Garcia-Aguilar, there were no other crimes with which to charge the defendant: illegal reentry was the only arrow in the government’s quiver. That’s usually not true, where many other potential charges (not Blockburger-barred) can be brought in a superceding indictment. (Think “receipt” of child porn versus straight “possession,” or a spare § 924(c) charge).
Moreover, Garcia-Aguilar and his other consolidated defendants aren’t out of the woods, yet. In United States v. Salazar-Lopez, for example, there was a similar problem with the indictment – but the Ninth “cured” it through the magic of harmless error analysis. 506 F.3d 748, 752 (9th Cir. 2007). Undoubtably those clever San Diegians have figured out how to skirt this problem, but the Salazar-Lopez harmless error “cure” illustrates that the “quick plea” strategy still carries with it some dangers.
For Further Reading: Can a court stall a defendant’s quick guilty plea, to let the government allege priors and to fix mistakes in the indictment? Yep. See 21 USC § 851(a)(1) (allowing delay for good cause); see also United States v. Duffy, 179 F.3d 1304, 1305 (11th Cir. 1999) (notice of priors filed by government during plea hearing timely).
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
.
The case does, however, embrace a rule that promotes sloppy advisements during guilty pleas -- not a great development for Rule 11 practice.
Players: Nice win for San Diego Defenders Zandra Lopez, Michelle Betancourt, and Shaffy Moeel. Former San Diego AFPD David Zugman on the team with the briefing and on oral argument.
Facts: San Diego had “defective” § 1326 indictments, that failed to allege that an alien had been removed from the country after having been convicted of a felony. Id. at *1. The Ninth has held that this flaw is Apprendi error that (theoretically) limits a defendant’s exposure to two years. Id. at *2 (citing United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir. 2006)).
Garcia-Aguilar and other § 1326 defendants entered guilty pleas before the magistrates to these indictments. After the guilty pleas the government “belatedly” brought superseding indictments that alleged the necessary missing fact. Id. To fix its mistake, the government argued that the original guilty plea colloquies were defective, because the magistrates had advised the defendants they were looking at twenty years – when in reality, they were only looking at two years because of the “defective” indictment. Id.
On the government’s motion, the district courts refused to accept these unconditional guilty pleas. Id.
Issue(s): “We consider the district court’s refusal to accept defendants’ unconditional guilty pleas.” Id. at *1.
Held: “The district court shall accept defendant’s unconditional pleas to the original indictments.” Id. at *4.
Of Note: As Arizona Defender Jon Sands has noted, Chief Judge Kozinski gives us the following wonderful quote: “These consolidated cases show again why the ten most terrifying words in the English language may be, ‘I’m from the government and I’m here to help you.” Id. at *1. Hard to fault a decision that is both a defense win and that mocks the government.
The troubling holding, however, is that it doesn’t matter how badly a court screws up an advisement at a plea, as long as it gets the highest possible maximum sentence right. Id. at *2. (Here, the magistrates were eighteen years off). Why not just guess “life,” and avoid any potential Rule 11 error? When a plea advisement is just a wild stab at the worst-case-scenario, then it stops becoming an advisement altogether. This Garcia-Aguilar "advisement rule" isn’t new, and maybe its full scope will be limited to these odd facts, but the case doesn’t exactly encourage careful practice in the trial courts.
How to Use: Does this mandamus decision have application beyond this quirky corner of Section 1326 litigation? It does, in our post-Apprendi world. Occasionally the feds screw up an indictment and fail to allege a fact that increases a statutory maximum sentence. What happens if a defendant jumps on that defect and pleads guilty out of the gate? Game over – under Garcia-Aguilar, the government can’t supersede: “the government has no power to force the defendant to go through the ordeal again to serve its own purpose.” Id. at *3. If this results in a dramatically lower sentence for the defendant, then “so be it.” Id. at *4. Moreover, if the district court balks, mandamus lies to force the court to take the plea.
Of course, there’s a caveat or two. In Garcia-Aguilar, there were no other crimes with which to charge the defendant: illegal reentry was the only arrow in the government’s quiver. That’s usually not true, where many other potential charges (not Blockburger-barred) can be brought in a superceding indictment. (Think “receipt” of child porn versus straight “possession,” or a spare § 924(c) charge).
Moreover, Garcia-Aguilar and his other consolidated defendants aren’t out of the woods, yet. In United States v. Salazar-Lopez, for example, there was a similar problem with the indictment – but the Ninth “cured” it through the magic of harmless error analysis. 506 F.3d 748, 752 (9th Cir. 2007). Undoubtably those clever San Diegians have figured out how to skirt this problem, but the Salazar-Lopez harmless error “cure” illustrates that the “quick plea” strategy still carries with it some dangers.
For Further Reading: Can a court stall a defendant’s quick guilty plea, to let the government allege priors and to fix mistakes in the indictment? Yep. See 21 USC § 851(a)(1) (allowing delay for good cause); see also United States v. Duffy, 179 F.3d 1304, 1305 (11th Cir. 1999) (notice of priors filed by government during plea hearing timely).
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
.
OPINION: Guardianship of M.R.O., Burris v. McDermott
UNPUBLISHED OPINION: Marriage of Guill
UNPUBLISHED OPINION: Gardner v. Lee
